FAA’s drug testing rule was properly extended to subcontractors of covered maintenance workers; Fourth Amendment not violated

The FAA’s 2006 rule that extends drug testing beyond maintenance workers to their subcontractors as well was a proper exercise of the FAA’s statutory authority under the Administrative Procedure Act. It also satisfied the Fourth Amendment. Aeronautical Repair Station Ass’n v. FAA, 377 U.S. App. D.C. 329, 494 F.3d 161 (2007):

The petitioners next contend the 2006 Final Rule’s drug testing requirement subjects employees of noncertificated subcontractors to unreasonable searches in violation of the Fourth Amendment. Again we disagree.

In National Federation of Federal Employees v. Cheney, 884 F.2d 603 (D.C. Cir. 1989), the court upheld against a Fourth Amendment challenge the U.S. Army’s practice of subjecting civilian aviation maintenance personnel to compulsory, random toxicological urine testing because the Army had a compelling interest in ensuring air safety given “the quintessential risk of destruction to life and property posed by aviation.” 884 F.2d at 610. The same justification exists here. Nonetheless, the petitioners offer three grounds for finding the testing program unconstitutional.

First, the petitioners assert that the employees subject to testing are “ordinary citizens.” The same is true, however, of the employees of certificated air carrier contractors and subcontractors and was true of the civilian employees in National Federation. Yet the petitioners do not suggest these groups may not constitutionally be tested.

Second, the petitioners object to the expansive scope of the testing insofar as it applies to all maintenance work, all employees who “participate” in the work and, especially, to current employees of noncertificated subcontractors. These objections applied as well to employees of a certificated contractor or subcontractor when they first became subject to testing in the late 1980s. Further, as to the first objection specifically, as indicated previously, the FAA can work out through guidance and consultation with subcontractors (as it has with certificated contractors and subcontractors) what is and is not test-triggering “maintenance” work. Further, as to the third objection, while testing of incumbents may as a general matter require a closer relationship between the employee’s job and the government interest served than does testing of new applicants, see Stigile v. Clinton, 110 F.3d 801, 805-06 (D.C. Cir. 1997); Willner v. Thornburgh, 928 F.2d 1185, 1188 (D.C. Cir. 1991), the nexus between aircraft mechanical work and aviation safety is sufficient, as our decision in National Federation made clear. Third, the petitioners argue, as earlier, that the additional testing “simply ‘is not needed'” in light of the airworthiness testing all aviation components undergo before being placed in service. Pet’rs Br. at 46 (quoting Chandler v. Miller, 520 U.S. 305, 320 (1997)). We reject this argument here for the same reasons given earlier. See supra Part II.B.2. Because of “the quintessential risk of destruction to life and property” posed by substance impaired lapses by maintenance workers at any tier, the testing is justified under National Federation.

Comment: Since this is the D.C. Cir., it spends more time on the administrative law issue and comparatively brushes off the Fourth Amendment, just barely adequately addressing it. As a civil libertarian who is a frequent flyer, with a son who builds airplanes (but not for airlines) and a former client who repaired private airplanes, I fully appreciate that even subcontractors should be drug tested, too. Am I a hypocrite? I don’t think so. I have also represented cops and firemen who were meth abusers on the job. The worse-case scenario would scare anybody.