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. e du/thir dc ir c uit_1998/51Filed March 17, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-7276

BEVERLY WILCHER; SHARON SMITH; MICHAEL DANYLO; CORNELIUS SKINNER, on behalf of themselves and all others similarly situated; THE WILMINGTON F IRE FIGHTERS ASSOCIATION, LOCAL 1590,

Appellants,

v.

CITY OF WILMINGTON; JAMES A. SILLS, in his official capacity as Mayor of the City of Wilmington; JAMES T. WILMORE, SR., individually and in his official capa city as Chief of Fire for the City of Wilmington; CLIFTON E. ARMSTEAD, individually and in his official capacity as Deputy Chief of Fire for the City of Wilmington; S.A. WAYNE CROSSE, in his official capacity as Dir ector of Personnel for the City of Wilmington; WILLIAM J. YANONIS, individually and in his official capacity as Deputy Director of Personnel for the City of Wilmin gton

SODAT-DELAWARE, INC.,

Third-Party Defendant

On Appeal from the United States District Court
for the District of Delaware (D.C. Civil Action No. 94-cv-00137)Argued January 28, 1997

Before: BECKER, Chief Judge, and ROTH, Circuit Judg es, and ORLOFSKY,1 District Judge

(Opinion Filed March 17, 1998)

Teresa C. Fariss, Esq. (Argued) Young, Conaway, Stargatt & Taylor
P.O. Box 391 Rodney Square North, 11th Floor Wilmington, DE 19899-0391

Attorney for Appellants

John W. Morgan, Esq. (Argued) City of Wilmington
Law Department 800 French Street, 9th Floor Wilmington, DE 19801

Attorney for Appellees

Bruce C. Herron, Esq. (Argued) Sawyer, Akin & Herron

1220 North Market Street P.O. Box 25047, Suite 606 Wilmington, DE 19899

Attorney for Third-Party Defendant

OPINION OF THE COURT

ROTH, Circuit Judge:

In this appeal, we are asked to determine whether t he City of Wilmington's method of testing firefighters for drug use violates their rights under the Fourth Amendmen t. We
will affirm the district court's conclusion that it does not.

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1. Honorable Stephen M. Orlofsky, United States Dis trict Court Judge for the District of New Jersey, sitting by designation.

2Nevertheless, we will remand the case for reconside ration of

the state law invasion of privacy claim.

Beverly Wilcher, Sharon Smith, Michael Danylo and Cornelius Skinner are Wilmington firefighters. Alon g with the Wilmington Fire Fighters Association (WFFA), th ey brought this class action on behalf of all firefigh ters in the city. The defendants are the City of Wilmington, Ma yor Sills (in his official capacity), James T. Wilmore (indiv idually and in his capacity as Fire Chief), Clifton Armstead (i ndividually and in his official capacity as Deputy Fire Chief), Wayne Crosse (in his official capacity as Director of Per sonnel for Wilmington), and William Yanonis (individually and in his official capacity as Deputy Director of Personnel). In addition, the firefighters sued SODAT-Delaware, Inc ., the drug testing company that performs the tests for th e City of Wilmington. The firefighters sought injunctive reli ef and damages under 42 U.S.C. S 1983 and damages for"inva sion of privacy" under the state's tort law.

The district court granted summary judgment in favo r of the individual defendants on the ground that they w ere entitled to qualified immunity and in favor of the SODAT defendants on the ground that SODAT was not a state actor. The district court then held a three-day tri al. Two days into the trial, the plaintiffs apprised the di strict court of this Court's statement in Bolden v. SEPTA, 953 F .2d 807, 822-23 n.23 (3d Cir. 1991), that reasonableness und er the Fourth Amendment was an issue of law. Concluding th at there were no remaining factual issues for the jury to decide, the district court, with the plaintiffs' ac quiescence, dismissed the jury. The court then decided against the plaintiffs on the merits of their Fourth Amendment claim. See Wilcher v. City of Wilmington, No. 94-137, slip . op. (D.Del. June 30, 1995). The district court also con cluded that plaintiffs could not prevail on their state la w invasion of privacy claim. The district court eventually ela borated on its findings in a memorandum opinion rejecting the plaintiffs' motion for reargument and for a new tri al. See Wilcher v. City of Wilmington, 924 F.Supp. 613 (D.D el. 1996).

The firefighters have appealed on several grounds. First, they cite as error the district court's failure to enter an

3injunction permanently prohibiting the City from us ing the

direct observation method in its urine collecting, despite the fact that during a pre-trial teleconference the Cit y had tentatively agreed to such an arrangement. Second, they dispute the district court's conclusion that direct
observation of urine collection is reasonable under the Fourth Amendment. Third, they appeal the district c ourt's determinations regarding qualified immunity and sta te action. Fourth, they urge that, in denying the plai ntiffs a jury trial, the district court misapplied our decis ion in Bolden. Finally, the plaintiffs contend that the di strict court committed error when it presumed that the reasonabl eness standard under the Fourth Amendment of the Constitu tion was equivalent to the reasonable person standard un der
Delaware tort law.2

We will reject all the plaintiffs' grounds for appe al except
for the fifth one. The district court did not abuse its discretion when it denied plaintiffs' motion for in junctive relief, following the City's rejection of the tenta tive agreement. In addition, we agree with the district court that a drug testing monitor's presence in the same room with the firefighter during the collection of thatfirefi ghter's urine does not, by itself, constitute an unreasonable sea rch under the Fourth Amendment. As for the plaintiffs' jury trial right, we agree that the district court misre ad our
decision in Bolden when it concluded that no factua l

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2. The plaintiffs also contend that the district co urt should not have determined that SODAT's drug testing method was not in violation of the firefighters' Collective Bargaining Agreement with the City. See Wilcher, at 17-19 (June 30, 1996 Memorandum). According to t he plaintiffs, this issue was moot by the close of the trial because th e City had agreed at least temporarily to discontinue using the method. Because the City has explicitly reserved its right to use this procedure in the future, we do

not agree that this issue is "moot." Moreover, the City has never conceded the impermissibility of SODAT's drug testing proced ure under the Collective Bargaining Agreement with the firefighte rs. Nevertheless, we agree that this issue should not have been decided by the district court. The plaintiffs never raised the Collective Bargaini ng Agreement in the pleadings. Moreover, when the case was tried, plain tiffs had not yet exhausted their administrative remedies, such as ar bitration. Therefore, the issue was not properly before the district cour t, and we will vacate the district court's ruling on it.

4determinations remained for the jury. Nevertheless, we will

not reverse the district court's dismissal of the j ury because the plaintiffs clearly acquiesced in this action an d thereby waived their jury right under Rule 39(a) of the Fed eral
Rules of Civil Procedure.

However, despite our affirmance of the district cou rt's constitutional analysis, we will remand this case f or further proceedings because we believe the court erred in presuming the equivalence of the "reasonableness" i nquiry under the Fourth Amendment and the "reasonable pers on" standard under the common law in an invasion of pri vacy claim.

I. FACTS

In July 1990, the City and the Wilmington Fire Figh ters Association (the firefighters' union) agreed in a C ollective Bargaining Agreement that firefighters would be sub ject to random drug testing through urinalysis in order to ensure that members of the Fire Department were drug free. Prior to January 1994, the City had employed a procedure whereby a randomly selected firefighter was notifie d he
would be tested when he arrived at the station to b egin his shift. A battalion chief would then stay with the f irefighter and take him to Occupational Health Services at the Medical Center of Delaware ("Occupational Health") where the test was performed. There, the battalion leader would conduct the firefighter to a "dry room" to produce the urine specimen. The sink in the dry room did not contain water and the toilet bowl contained blue dye to prevent c heating by dilution. The firefighters provided their urine specimens in private; no observer was present in the dry room

. Occupational Health's method of collecting urine in this manner followed the guidelines of the National Inst itute of Drug Abuse.

In November 1993, in an attempt to reduce the cost of random drug testing, the City solicited bids from d rug testing facilities. The City did not specifically r equest a procedure which included visual observation of urin e collection. SODAT, a private drug-testing company i n Delaware with a primary focus on outpatient drug-

5counseling, submitted a proposal under which fire-f ighters

would produce the urine sample "under the direct supervision of counselor/authorized personnel." The City accepted SODAT's bid.

In January 1994, SODAT began drug testing the City' s firefighters. The parties have given substantially different descriptions of how the SODAT employees carried out this procedure. The male firefighters, for example, clai m that the SODAT monitor looked over the firefighter's shoulde r at his genitals while he urinated. SODAT, on the other han d,
claims that the monitors stood to the back or the r ight of the firefighters but did not directly observe their genitalia.

Although SODAT employees are directed to observe th e urine collection process by looking in the firefigh ter's general direction as he or she commences urination, the monitors are neither directed nor expected to focus on the firefighter's genitals. At trial, the SODAT monitor s maintained that they had acted within the company's guidelines.

After hearing this testimony, the district court ac cepted SODAT's portrayal of the monitoring process as accu rate. "An examination of the SODAT testing program, both in terms of its design and intent, and more specifical ly in its execution, demonstrates that no element of the prog ram was intended to invade the privacy of a firefighter in an overly intrusive manner." Wilcher, 924 F.Supp. at 6 17. The district court further stated, "Although [the colle ction process] may have involved some observation of the genitalia area generally, this observation was only a byproduct of the general observation of the donor." I d. at 618. In its earlier memorandum, the district court had a lso

stated:

On the evidence submitted by the parties, th e Court finds that the direct supervision procedure employed by SODAT did not in principal or in fact inv olve the direct observation of the genital area of th e person providing the urine sample. . . . [SODAT's p rocedure] does not direct that the SODAT employee unde rtake to observe the genital area of the individual p roviding the sample. It only requires supervision during the collection process.

6Wilcher, slip. op. at 11. The district court furthe r concluded,

"The Court is convinced that the testimony concerni ng the position of the SODAT employee during the specimen collection is corroborated and demonstrates that ge nital observation was not the purpose nor the practice of the SODAT policy." Id.

Soon after SODAT began testing firefighters, the De puty Fire Chief was informed of the firefighters' compla ints about SODAT's testing method. The City did not, however, request that SODAT stop using the direct observation proced ure. The firefighters' union, the Wilmington Fire Fighte rs Association, filed a first step grievance with the City of Wilmington protesting the direct observation proced ure. The Deputy Chief denied this grievance. The WFFA fi led a second step grievance, which was denied on February 17,
1994. The WFFA then filed a Notice of Arbitration. The plaintiffs filed suit on March 18, 1994, against th e City and the individual defendants. The City impleaded SODAT , and the plaintiffs amended their complaint to include S ODAT as a defendant. In an Order and Stipulation filed on A pril 15, 1994, the parties agreed that the City should direc t SODAT to refrain from using direct observation of urinati on while this case was pending.

The district court had jurisdiction over this case pursuant to 28 U.S.C. SS 1331 and 1343. We now have jurisdiction under 28 U.S.C. S 1291.

II. THE "TENTATIVE AGREEMENT"

Before we proceed with our analysis of the constitu tional issue, we will address the plaintiffs' contention t hat the district court erred in not permanently enjoining t he City from using SODAT's direct observation method of dru g testing. We find no such error.

On April 15, 1994, the parties filed a Stipulation and Order temporarily enjoining the City from further u se of the direct observation method during the pendency of th is case. On June 16, the parties participated with the distr ict court in a teleconference, during which the City expresse d its willingness to refrain permanently from using the d irect
observation method. At the end of the teleconferenc e,

7SODAT's counsel stated that she would draft a stipu lation

and order to that effect and send it around to the other parties for their signature.

Despite this tentative agreement, the plaintiffs an d the City of Wilmington were unable to arrive at an acco rd on the terms of the stipulation. The City therefore re fused to sign it. The plaintiffs then filed a motion with th e district court for an order permanently enjoining the City a nd
SODAT from further use of the direct observation me thod of
urine collection. The district court denied this mo tion without opinion on March 31, 1995. The plaintiffs a rgue that this denial was error, as the City defendants had reneged on their agreement in bad faith. The defend ants reply that the oral agreement was only tentative.

As a general rule, we encourage attempts to settle disagreements outside the litigative context. A set tlement agreement is a contract and is interpreted accordin g to local law. See Pennwalt Corp. v. Plough, Inc., 676 F.2d 77, 79 (3d Cir. 1982). A district court may enter injun ctive relief on a party's behalf to enforce a settlement agreement when it determines that one of the parties has fail ed to perform its obligations. See Read v. Baker, 438 F.S upp. 732, 735 (D. Del. 1977), citing Petty v. General Ac cident Fire & Life Assurance Co., 365 F.2d 419, 421 (3d Cir. 19 66). The power to grant or deny an injunction, however, is firmly
within the discretion of the district court. See Ca strol, Inc. v. Pennzoil Co., 987 F.2d 939, 943 (3d Cir. 1993).

According to the City, the district court did not a buse its discretion by denying the injunction because the pa rties had produced no more than a tentative agreement, unenforceable by law. We agree. Under Delaware law, the criteria for deciding whether a contract exists is the intention of the parties, evidenced by their object ive conduct and manifestations. See Industrial America, Inc. v. Fulton Indus., Inc., 285 A.2d 412, 415 (Del. 1971). The parties' subjective intent is irrelevant. Id. Rathe r, the court's inquiry is "whether a reasonable man would, based upon the `objective manifestation of assent' and al l of the surrounding circumstances, conclude that the partie s intended to be bound by contract." Leeds v. First A llied

8Connecticut Corp., 521 A.2d 1095, 1101 (Del.Ch. 198 6). As

Chancellor Allen has noted,

This is not a simple or mechanical test to a pply. Negotiations typically proceed over time wit h agreements on some points being reached alon g the way towards a completed negotiation. It is w hen all of the terms that the parties themselves regard as important have been negotiated that a contra ct is

formed.

Leeds, 521 A.2d at 1101 (emphasis added). The Chanc ellor further stated, "Until it is reasonable to conclude . . . that all of the points that the parties themselves regar d as essential have been expressly or . . . implicitly r esolved, the parties have not finished their negotiations and ha ve not formed a contract." Id., at 1102.

These basic principles of contract law lead us to c onclude
that the district court committed no abuse of discr etion in denying injunctive relief. Although the parties agr eed in principle at the pre-trial teleconference to a stip ulation permanently halting the direct observation procedur e, they did not discuss the details of the agreement. Thus, we cannot say that all the essential terms were resolv ed before or during the teleconference. The teleconference represented but one step of a complex negotiation b etween three parties (the firefighters, the City, and SODA T). The record indicates that the City made a good faith ef fort to work with the plaintiffs to draft a stipulation acc eptable to everyone. Unfortunately, the parties never reached that stage. This failure, however, does not represent a breach of contract. Accordingly, we will affirm the district court's denial of the permanent injunction.

III. THE CONSTITUTIONALITY OF

DIRECT OBSERVATION

The gravamen of the plaintiffs' complaint is that t he
direct observation method of urine collection viola tes the firefighters' right under the Fourth Amendment, as incorporated by the Fourteenth Amendment, to be fre e from
unreasonable searches and seizures. The district co urt held that the direct observation method, as executed by SODAT,

9did not constitute an "unreasonable" search. Becaus e the

reasonableness of a search under the Fourth Amendme nt is an issue of law, we exercise plenary review. See Bo lden, 953 F.2d at 822-23 n.23; Dykes v. SEPTA, 68 F.3d 1564, 1568 (3d Cir. 1995).

The Fourth Amendment guarantees the "right of the people to be secure in their persons . . . against
unreasonable searches and seizures." U.S. Const. Am end. IV. It is well established that the government's co llection and testing of an employee's urine constitutes a "s earch" under the Fourth Amendment. Skinner v. Railway Labo r Executives' Assn., 489 U.S. 602, 617; Treasury Empl oyees v. Von Raab, 489 U.S. 656, 665 (1989). Ordinarily, the Constitution requires the government to obtain a wa rrant supported by probable cause to search a person or h is property. There are, however, several well-establis hed exceptions to the warrant and probable cause requirements. The Supreme Court has explained:

[O]ur cases establish that where a Fourth Am endment intrusion serves special government needs, b eyond the normal need for law enforcement, it is neces sary to balance the individual's privacy expectation s against
the Government's interests to determine whet her it is impractical to require a warrant or some lev el of individualized suspicion in the particular c ontext.

Von Rabb, 489 U.S. at 665-66. See also Griffin v. W isconsin, 483 U.S. 868, 873 (1987); New Jersey v. T.L.O., 469 U.S. 325, 340 (1985). Under the "special needs" analysis , the government need not show probable cause or even individualized suspicion for its search. Instead, i t must prove that its search meets a general test of "reasonableness." Under this standard, the constitu tionality of a particular search " `is judged by balancing it s intrusion on the individual's Fourth Amendment interests agai nst its promotion of legitimate governmental interests.' " Skinner, 489 U.S. at 619 (quoting Delaware v. Prouse, 440 U. S. 648, 654 (1979)). In particular, the Supreme Court's jurisprudence directs us to consider three factors when judging the constitutionality of employee drug test s: (1) the nature of the privacy interest upon which the searc h intrudes; (2) the extent to which the search intrud es on the

10employee's privacy; and (3) the nature and immediac y of

the governmental concern at issue, and the efficacy of the means employed by the government for meeting that concern. Vernonia School Dist. 47J v. Acton, 115 S. Ct. 2386 (1995).

The firefighters do not dispute the reasonableness of compulsory drug testing per se. To the contrary, th e firefighters have agreed to drug testing in their C ollective Bargaining Agreement with the City. Rather, the pla intiffs challenge the City's method of testing, which entai ls visual observation of the firefighters as they provide the ir urine samples. This issue has been described as "distinct and clearly severable from those that govern reasonable suspicion testing generally". National Treasury Emp loyees Union v. Yeutter, 918 F.2d 968, 975 (D.C. Cir. 1990 ). For this reason, we apply the Fourth Amendment's reasonableness test solely to the direct observatio n method utilized by SODAT and not to the broader issue of compulsory drug testing. See id.3

A. The Nature of the Firefighters' Privacy Interest

"Reasonableness" entails a three pronged inquiry. F irst, a court examines the individual's privacy interest up on which the search at issue allegedly intrudes. See Vernoni a, 115 S.Ct. at 2391 (1995). This expectation of privacy m ust be legitimate as measured by objective standards. "The Fourth Amendment does not protect all subjective expectati ons of privacy, but only those that society recognizes as `legitimate.' " Id.

The district court properly concluded that firefigh ters enjoy only a diminished expectation of privacy. "Be cause they are in a highly regulated industry, and becaus e they had consented to random testing in their collective bargaining agreement, the firefighters had a reduce d privacy interest." Wilcher, 924 F.Supp. at 618. Pla intiffs now argue on appeal that the firefighting industry is not

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3. Because it is the method of testing, rather than the fact of testing, which is at issue, we do not find that appellants' post-argument citation to Chandler v. Miller, 117 S.Ct. 1295 (1997), is he lpful to our
considerations here.

11"highly regulated" and that the firefighters theref ore did not

have a diminished expectation of privacy.

Plaintiffs' argument lacks merit. Even though exten sive regulation of an industry may diminish an employee' s expectation of privacy, see Policemen's Benevolent Ass'n, Local 318 v. Township of Washington, 850 F.2d 133 ( 3d Cir. 1988) (police department described as "highly regul ated"); Shoemaker v. Handel, 795 F.2d 1136 (3d Cir. 1986) (upholding law requiring jockeys to submit to breat halyser and random urinalysis testing), we have never held that regulation alone is the sole factor that determines the scope of an employee's expectation of privacy. It is also the safety concerns associated with a particular type of emplo yment -- especially those concerns that are well-known to prospective employees -- which diminish an employee 's expectation of privacy. Supreme Court precedent demonstrates this principle. In National Treasury Employees v. Von Raab, the Court held that a govern ment employee's expectation of privacy depended in part on the nature of his employment and whether it posed an attendant threat to public safety. See 489 U.S. at 672. Upholding the drug testing of customs officials, th e Court explained:

We think Customs employees who are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty likewi se have a diminished expectation of privacy in respect to the intrusions occasioned by a urine test. Unlik e most private citizens or government employees in general, employees involved in drug interdiction reas onably should expect effective inquiry into their f itness and probity . . . . Because successful performan ce of their duties depends uniquely on their judgment an d dexterity, these employees cannot reasonably expect to keep . . . personal information that bears d irectly on
their fitness.

Id. (emphasis added). Customs officials enjoyed a r educed expectation of privacy because of the sensitive nat ure of their duties and of the information they received. We have held that railway employees also enjoy a diminished expectation of privacy because of the safety concer ns

12associated with those who operate trains. See e.g. Transport

Workers' Union, Local 234 v. SEPTA, 884 F.2d 709, 7 12 (3d Cir. 1988) (random testing of rail operators upheld because of "great human loss" they can cause prior to detec tion of drug problem).

Certainly, a firefighter with a drug problem poses as great a threat to public safety as does a customs officia l or a rail operator. A firefighter whose drug use is undetecte d is a source of danger both to his colleagues and to the community at large. In addition, the firefighter pu ts himself at great risk of harm. Since the perils associated with firefighting are well known, we have no trouble con cluding that firefighters enjoy a diminished expectation of privacy. Our inquiry, however, does not end here, as we must balance the firefighters' diminished interest with the
character of the search at issue and with the conce rns that have propelled that search.

B. The Character of the Search

The second factor we must consider is the character of the government's search and the extent to which it intrudes on the employee's privacy. The Supreme Court has he ld that the degree of intrusion "depends upon the mann er in which production of the urine sample is monitored." Vernonia, 115 S.Ct. at 2393. Before we judge the intrusiveness of SODAT's drug testing method, howev er, we must first determine what that method actually enta ils.

At trial and on appeal, both the plaintiffs and the SODAT employees have presented highly divergent pictures of the urine collection process. The firefighters claim th at monitors looked at their genitalia as they urinated . SODAT and its employees, on the other hand, steadfastly m aintain that they did not focus on the firefighters' genita lia during the urine collection process. Instead, they claim t hat they looked in the firefighters' general direction to en sure that no tampering was taking place during the production of the urine specimen.

Based on the evidence before it, the trial court co ncluded that SODAT's drug testing procedure involved only t he
monitors' direct observation of the urine collectio n process in general and not the intentional observation of t he

13firefighters' genitalia. Wilcher, 924 F. Supp. at 6 17-18. We

accept as accurate the district court's finding of fact concerning the nature of the urine collection proce ss employed by SODAT. Although the reasonableness of a search is a legal question, the particular characte r of that search is a factual matter. Cf. O'Connor v. Ortega, 480 U.S. 709, 726-729 (factual dispute regarding character o f search precluded lower court's grant of summary judgment o n Fourth Amendment issue). As such, the trial judge's factual finding regarding the character of SODAT's drug tes ting procedure is reversible only if it is clearly erron eous. See Marco v. Accent Pub. Co., Inc., 969 F.2d 1547, 1548 (3d Cir. 1992). In light of the nature of the testimony from the SODAT employees, which the trial judge chose to cre dit, we cannot say that the district court's finding was cl early erroneous.4 Consequently, we will adopt the distric t court's description of the SODAT procedure as one which ent ails only incidental observation of a firefighters' geni tals.

Having adopted the district court's description of the SODAT drug-testing procedure, we must concede that the direct observation method represents a significant intrusion on the privacy of any government employee. Urinatio n has been regarded traditionally by our society as a mat ter "shielded by great privacy." Skinner, 489 U.S. at 6 26; 109
S.Ct. at 1418. Few cases have dealt with the issue of the specific method used by the government to test its employees for drugs. In Vernonia School District 47 J v. Acton, the Supreme Court upheld the constitutionali ty of a mandatory random drug testing program that a school district employed to reduce drug use among its stud ent athletes. The Court described the Vernonia drug tes ting procedure in the following manner:

The student to be tested completes a specime n control form which bears an assigned number. . . . T he student then enters an empty locker room accompanied by an adult monitor of the same sex. Each boy selected produces a sample at a uri nal,

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4. In addition, we note the concession of plaintiff s' attorney at oral argument that she was not seeking reversal of the t rial court's factual findings.

14remaining fully clothed with his back to the monitor,

who stands approximately 12 to 15 feet behin d the student. Monitors may (though do not always) watch the student while he produces the sample, an d they
listen for normal sounds of urination. Girls produce samples in an enclosed bathroom stall, so th at they

can be heard but not observed.

Vernonia, 115 S.Ct. at 2389. The Supreme Court conc luded that this method of testing was not unreasonable un der the Fourth Amendment. "Under such conditions, the priva cy interests compromised by the process of obtaining t he urine sample are in our view negligible." Vernonia, 115 S .Ct. at
2393.

Relying on Vernonia, the district court stated, "Th e Court
finds the SODAT collection method no more intrusive on the firefighters' privacy than was the high school' s drug testing program found to be constitutional in [Vern onia]" Wilcher, 924 F. Supp. at 618. The district court fu rther concluded, "The presence of monitors in the bathroo ms with firefighters is similar to the presence of the monitors in Vernonia, and even though the monitors may have stood closer than those in Vernonia, this close proximity was a result of the collection facilities, in this case a bathroom as opposed to a locker room, and not a more intrusive method." Wilcher, 984 F.Supp. at 619.

We agree with the district court insofar as its ana logy to Vernonia applies to male firefighters. In a world w here men frequently urinate at exposed urinals in public res trooms, it is difficult to characterize SODAT's procedure a s a significant intrusion on the male firefighters' pri vacy.5 Plaintiffs fail to demonstrate how the presence of a monitor in a boys locker room while a student athlete urina tes differs significantly from the presence of a monito r in a bathroom while an adult firefighter urinates. Both monitors stand behind the individual providing the urine spe cimen. Similarly, as the district court found, both monito rs observe only the collection process generally and not the p articular

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5. See also Dimeo v. Griffin, 943 F.2d 679, 682 (7t h Cir. 1991) (noting that "[u]rination is generally a private activity i n our culture, though,

for most men, not highly private.")

15individual's genitalia. The only difference is the distance

between the monitor and the person producing the specimen. We cannot conclude that this difference b y itself justifies a determination that SODAT procedure is

unreasonable.6

We must admit that we are more cautious about the
reasonableness of the direct observation method as it applies to female firefighters. We simply cannot ch aracterize the presence of a monitor in a bathroom while a fem ale urinates as an ordinary aspect of daily life. Indee d, Vernonia noted with approval the fact that female s tudent athletes provided urine behind a stall as monitors stood outside listening. Vernonia, 115 S.Ct. at 2393. Nevertheless, nothing in Vernonia suggests that the presence of a female monitor in a bathroom when an adult female firefighter provides a urine specimen is per se unconstitutional under the Fourth Amendment. Moreov er, the facts of this case suggest that SODAT took subs tantial measures to minimize the intrusion of privacy to fe male firefighters caused by the direct observation proce dure. The
district court found that the female monitors stood to the side of the female firefighters and that the monito rs did not look at the firefighters' genitalia as they urinate d, but rather in their general direction. Wilcher, 924 F.S upp. at 617-18. Finally, SODAT provided a nurse-practitione r as a monitor for plaintiff Wilcher when she expressed di scomfort with her first female monitor. Thus, although wefin d SODAT's intrusion of the female firefighters' priva cy to be significant, we nevertheless agree with the defenda nts that SODAT has carried out its testing procedure in an appropriate and professional manner.

C. The Governmental Concern

The third and final component of the "reasonablenes s" test under the Fourth Amendment is the government's

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6. We note that our conclusion might differ had the district court accepted the firefighters' testimony that SODAT's m onitors looked over firefighters' shoulders as they provided their urin e specimens. Similarly, we would be much more concerned with a procedure's intrusion on privacy if it required the monitor to stand in fron t of the firefighter,
or if it demanded the direct observation of the firefight er's genitalia.

16interest, which must be compelling. With regard to this

prong, the Supreme Court has observed:

It is a mistake . . . to think that the phra se `compelling state interest,' in the Fourth Amendment con text, describes a fixed, minimum quantum of govern mental concern, so that one can dispose of a case b y answering in isolation the question: Is ther e a compelling state interest here? Rather, the phrase describes an interest which appears importan t enough to justify the particular search at hand, in light of
other factors which show the search to be re latively intrusive upon a genuine expectation of priv acy.

Vernonia, 115 S.Ct. at 2394-95. Thus, "compelling i nterest" does not have the same meaning in this context as i t does in other areas of constitutional law. Moreover, the fact that there exists a less intrusive method of achieving t he government's goal is not relevant to the Court's reasonableness analysis under the Fourth Amendment. Vernonia, 115 S.Ct. at 2396. See also Skinner, 489 U.S. at 629 n.9; Illinois v. Lafayette, 462 U.S. 640, 647 ( 1983).

In this case, we do not review the constitutionalit y of drug-testing per se, but rather, the procedure by w hich firefighters are tested. According to the City and to SODAT, visual observation is necessary to prevent cheating . At trial, the defendants' expert, Dr. Closson, testified that visual monitoring is necessary to catch employees who atte mpt to fool the test by substituting someone else's urine or adding
a chemical adulterant to their own urine.

On appeal, the plaintiffs argue that cheating can b e detected by testing the urine's temperature since substitutes make the specimen colder than it should be. According to Dr. Closson, a forensic toxicologist, cheaters still can avoid detection by warming substitute uri ne through a heating pack hidden on their body, or by keeping the urine close to their body so that it takes on t he body's temperature. Closson further maintained that direct
observation was the most accurate collection method for ensuring the integrity of a urine sample. Finally, Closson testified that direct observation procedures are us ed by the New York City Police Department, the New York City

17Department of Corrections, and several other New Yo rk

agencies.

Like the district court, we find the defendants' ex pert testimony persuasive. Cheating is a significant con cern. The City understandably wishes to take as many steps as possible to eliminate potential violations of the d rug testing program. The plaintiffs argue that the cheating des cribed by Dr. Closson is unlikely, as Wilmington firefight ers do not receive notice that they are to be tested until the day of the test, and they remain in the company of a superior officer from the moment they are notified of the test until the time that they actually provide their urine specimen. Al though this argument is strong, it does not prove that the incidences of cheating, described by Dr. Closson, a re impossible or even implausible. Although such cheat ing calls for fairly sophisticated equipment, it is pos sible for a firefighter with a drug problem to carry a catheter or an artificial bladder taped to his body on the days fo llowing drug use, just in case he is tested on that day. In deed, Dr. Closson stated that cheating has been known to take place within the New York agencies, which use the direct
observation method.

Under Supreme Court jurisprudence, the City of Wilmington need not wait for a cheating problem to develop in order to justify its use of direct observation. In Von Raab, for example, Justice Scalia noted that the Supreme Court upheld random mandatory drug testing of customs off icials, even though there existed no evidence of a history of drug abuse among those government employees. See Von Raa b, 489 U.S. at 679 (Scalia, dissenting). Moreover, the fact that there exists a less intrusive method of achieving t he government's goal is not relevant to the Court's Fo urth Amendment analysis. Skinner, 489 U.S. at 629 n.9; I llinois v. Lafayette, 462 U.S. 640, 647 (1983).

Finally, we do not agree with the plaintiffs' argum ent that SODAT renders its direct observation procedure inef fective (and thereby unnecessary) by directing monitors not to look at the firefighters' genitals. Certainly, the mere presence of a monitor in the room where the firefighter is urin ating deters a would-be-cheater from substituting or adul terating his own urine sample. Thus, we must agree with the

18district court that the direct observation procedur e serves

the government's interest of preventing cheating on drug

tests.

Because we find that SODAT's direct observation met hod, as described in the district court's findings of fa ct, meets
the three elements of the Fourth Amendment reasonableness test, we hold that the plaintiffs' F ourth Amendment rights have not been violated.7 The City 's significant interest in preserving the integrity of its firefighters' drug tests outweighs their expectatio ns of privacy. With regard to the male firefighters, the conditions created by SODAT do not differ significantly from t he conditions present in an ordinary public restroom. As for the female firefighters, we note the district court 's finding that SODAT has taken several steps to minimize the potentially intrusive effects of having a person pr esent in the same room during the collection of a femalefire fighter's urine. So long as SODAT's monitors refrain from loo king at the firefighters' genitalia, its direct observation procedure
remains within the boundaries of a constitutional s earch. Accordingly, the district court did not err when it ruled in
the defendants' favor on the issue of constitutiona lity under

the Fourth Amendment.8

IV. WAIVER OF JURY TRIAL

Two days into the trial, the plaintiffs brought to the
district court's attention our statement in Bolden v. SEPTA

that reasonableness under the Fourth Amendment was an issue to be decided by the judge. See Bolden, 953 F .2d at 822. Based on its reading of Bolden, the district c ourt, with

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7. We note that the D.C. Circuit has come to the op posite conclusion with regard to this issue. See Piroglu v. T.R. Cole man, 25 F.3d 1098 (D.C. Cir. 1994); National Treas. Employees v. Yeutter, 9 18 F.2d 968, 976 (D.C. Cir. 1990). These cases, however, were decided prio r to the Supreme
Court's decision in Vernonia.

8. Because we affirm the district court's dispositi on of plaintiffs'

Fourth Amendment claim, we need not review either the dist rict court's determination that SODAT was not a state actor, or its conclusion that the City defendants, as sued in their individual ca pacities, were entitled to qualified immunity.

19plaintiffs' agreement, dismissed the jury. Plaintif fs now

claim that this was error and that the district cou rt violated their right to a jury trial. We reject this argumen t as lacking merit. Although plaintiffs had a right to a jury tr ial, they waived that right when they acquiesced in the distr ict court's dismissal of the jury.

Rule 39(a) of the Federal Rules of Civil Pro cedure

states: When trial by jury has been demanded as prov ided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all is sues so demanded shall be by jury unless (1) the par ties or their attorneys of record, by written stipul ationfiled with the court or by an oral stipulation mad e in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the cour t upon motion or its own initiative finds that a right of trial by jury of
some or all of those issues does not exist u nder the
Constitution or statutes of the United State s.

Fed. R. Civ. P. 39(a) (emphasis added). This Court has stated that once a party makes a timely demand for a jury trial, that party subsequently waives that right wh en it participates in a bench trial without objection. Se e Cooper v. Loper, 923 F.2d 1045, 1049 (3d Cir. 1991). Numer ous courts have adopted this position. See generally 5 James Wm. Moore et al., Moore's Federal Practice, P39.03 n.5-6 (2d ed. 1988) (consent can be inferred from conduct of parties or counsel). See also Royal American Manage rs, Inc. v. IRC Holding Corp., 885 F.2d 1011 (2d Cir. 1989) (plaintiff waived right to jury trial in securities action by participating in bench trial without objection); Po pe v. Savings Bank of Puget Sound, 850 F.2d 1345, 1355 (9 th Cir. 1988) (counsel's agreement with court's announ ced intent to dismiss jury, as well as actual knowledge that jury was being discharged, constituted waiver of jury tr ial right under Rule 39(a)).

Based on these principles, we find that the plainti ffs waived their jury trial right under Rule 39(a). On the third day of trial, the plaintiffs' attorneys submitted a letter to the district court notifying it that under Bolden t he issue of reasonableness under the Fourth Amendment was a leg al

20issue for the court. In response to this letter, th e trial judge

stated his intention to dismiss the jurors because there remained no liability questions for them to decide. The plaintiffs' counsel objected to this course of acti on only insofar as damages were concerned. The court agreed that, should the plaintiffs prevail on any of the liabili ty questions, he would either recall the jury or assem ble a new one to hear evidence relating to damages.

Based on the dialogue between the district judge an d the plaintiffs' attorney, we conclude the plaintiffs wa ived their jury trial right under Rule 39(a). The sole concern of the plaintiffs' attorney was that the trial court prese rve the damages issue for a jury trial in the future. She d id not argue that the plaintiffs were entitled to a jury o n the invasion of privacy claims. Nor did she argue that the plaintiffs were entitled to a jury verdict on the f actual aspects of their Fourth Amendment claim (such as wh ether the SODAT employees actually looked at the firefigh ters' genitals while they urinated). Hence, whatever righ ts the plaintiffs had, their counsel waived when she expli citly agreed with the district court's decision to dismis s the jury.9

V. FOURTH AMENDMENT "REASONABLENESS" VS. THE

STATE LAW "REASONABLE PERSON" STANDARD

Finally, we will reverse the district court's rulin g insofar

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9. Although the plaintiffs waived their jury trial rights, we nevertheless note that the district court misapplied our stateme nt in Bolden when it
concluded that there were no factual issues for the jury to decide. The

fact that reasonableness under the Fourth Amendment is a legal issue
does not make all issues under the Fourth Amendment legal in nature.

For example, in Dykes v. SEPTA, 68 F.3d 1564, 1568 (3d Cir. 1995),
we addressed a claim that SEPTA had violated its ow n drug-testing policy by testing the plaintiff without reasonable suspicion. Reiterating our statement in Bolden, we held that the specific question of whether SEPTA had reasonable suspicion to test the plaintif f (i.e. evidence that he might be using drugs) was factual. See 68 F.3d a t 1567. Thus, our statement in Bolden applied only to the ultimate de termination of whether SODAT's drug testing procedure qualified as "reasonable" under the Fourth Amendment, not to any determination of t he factual elements of that procedure.

21as it equated the Fourth Amendment "reasonableness"

standard with the much different common law "reason able person" standard. Invasion of privacy is a tort cla im under state law. Delaware adopted the Restatement of Tort 's
definition of this claim in Barbieri v. News-Journa l Co., 189 A.2d 773, 774 (Del. 1963). Under the Restatement, plaintiffs can prove a common law invasion of priva cy if they show that defendants intentionally intruded on the firefighters' physical solitude or private affairs or concerns in such a manner that a reasonable person wouldfind "highly offensive." (Restatement (Second) of Torts, S 652B (1977)). See also Barker v. Huang, 610 A.2d 1341, 1 350 (Del. 1992).

The district court concluded that since it had rule d against plaintiffs on their constitutional claim, i t could not possibly find in their favor on their state law inv asion of privacy claim. "Even assuming that the monitors int ruded upon the firefighters' solitude, the Court has dete rmined that the collection procedures used by SODAT were reasonable under constitutional principles." Wilche r, 924 F.Supp. at 619.

The district court's assumption that "reasonablenes s" under the Fourth Amendment is analogous to a "reaso nable person" standard under state common law is erroneou s. A state may provide its citizens with greater protect ion of their individual rights than does the federal const itution. For example, in Kelley v. Schlumberger Technology C orp., 849 F.2d 41 (1st Cir. 1988), the court struck down a drug testing procedure because it violated the state con stitution. Moreover, it is beyond argument that a district cou rt cannot, a fortiori, apply a federal standard of law to a cause of action grounded in the common law of the state i n which it sits. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 , 78 (1938). Hence, the trial court incorrectly conclude d, as a matter of law, that a reasonable Delawarean could n ot find the drug testing procedure "highly offensive," simp ly because the test might have passed muster under the
Fourth Amendment.10 We will therefore remand this i ssue

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10. The district court also dismissed the plaintiff s' invasion of privacy claims because, "the `intrusion into physical solit ude' claimed by the

22to the district court to determine whether the "rea sonable

person" standard under Delaware common law wouldfin d the practices employed by SODAT "highly offensive." 11

VI. CONCLUSION

Based on the foregoing discussion, we will affirm t he district court's ruling on the plaintiffs' constitu tional claim. So long, at least, as the SODAT employees continue to employ the safeguards discussed in Part III, their direct
observation method does not violate the Fourth

Amendment.

In addition, we will affirm the district court's di smissal of the jury because the plaintiffs waived their jury t rial right when they acquiesced on the record to the dismissal

. Moreover, as we note in footnote 1, we will vacate the district court's holding that SODAT's drug testing procedure was permissible under the Collective Barg aining Agreement. Finally, we will vacate the dismissal of the state law invasion of privacy claim and remand this case to the
district court for reconsideration of the state law issues.

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Plaintiffs resulting from the direct observation me thod was consented to by written contract." Wilcher, 924 F.Supp. at 619. We find the court's statement on this matter puzzling, as the court has cited no portion of the Collective Bargaining Agreement in which the fi refighters actually consented to such a method of drug testing.

11. We know of no Delaware case that has discussed or been presented with this issue. We do not predict at this juncture what the Delaware Supreme Court would do if presented with this issue . Cf. Epstein Family Partnership v. Kmart Corp., 13 F.3d 762, 765 (3d Ci r. 1994) (if state court has not ruled on issue, federal district cour t must predict how it would decide issue). Moreover, the fact that direct observation method passes muster under the Fourth Amendment certainly may be raised by the City and SODAT in defense of the invasion of pr ivacy claim. We simply hold that a federal district court cannot pr esume that a state's
common law tort standard and a constitutional balan cing test would reach the same result when applied to the same set of facts. The reasonableness of a procedure under the Fourth Amen dment may be relevant to the inquiry under state law, but it is not necessarily dispositive of the state law claim.

23A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

24