MARCHWINSKI v. HOWARD No. 00-2115.
309 F.3d 330 (2002)
Tanya L. MARCHWINSKI; Terri J. Konieczny; Westside Mothers, on behalf of all similarly situated persons, Plaintiffs-Appellees, v. Douglas E. HOWARD, in his official capacity as Director of the Family Independence Agency of Michigan, a governmental department of the State of Michigan, Defendant-Appellant.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: October 18, 2002.
Robert A. Sedler (argued and briefed), Detroit, MI, Graham A. Boyd (briefed), ACLU Drug Policy Litigation Project, New Haven, CT, for Appellees.
Morris J. Klau (argued and briefed), Office of the Attorney General, Detroit, Ml, for Appellant.
Paul D. Kamenar (briefed), Washington Legal Foundation, Washington, DC, for Amicus Curiae.
Daniel N. Abrahamson, The Lindesmith Center, Office of Legal Affairs, Oakland, CA, for Amicus Curiae American Public Health Association.
Before SUHRHEINRICH, SILER, and BATCHELDER, Circuit Judges.
BATCHELDER, Circuit Judge.
Defendant-appellant Douglas Howard, the director of the Michigan Family Independence Assistance program ("FIA"), appeals the district court's grant of a preliminary injunction based on Michigan's failure to identify a "special need" related to public safety that would allow the state — without a requirement of individualized suspicion — to drug test the plaintiff-appellees, a class of persons eligible for or receiving welfare assistance and subject to drug
In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA") that replaced the previous welfare entitlement program with the Temporary Assistance for Needy Families program ("TANF"). Pub. L. 104-193, § 103, 110 Stat. 2113 (1996) (codified at 42 U.S.C. § 601 et seq.). Among the general purposes for the PRWORA is the goal of increasing the flexibility of the states in providing assistance to needy families "so that children may be cared for in their own homes or in the homes of relatives." 42 U.S.C. § 601(a)(1). A state participating in the TANF program must submit to the Secretary of Health and Human Services a written document that includes, among other things, the state's plan for a program that will "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). Only needy families who have or are expecting children are eligible for benefits under this program. 42 U.S.C. § 602(1)(A)(i). PRWORA explicitly provides that the Act "shall not be interpreted to entitle any individual or family to assistance under any State program funded under this part." 42 U.S.C. § 601(b). TANF permits states to drug test applicants for and recipients of these benefits and to impose sanctions where use of controlled substances is found. 21 U.S.C. § 862b.
In Michigan, the Family Independence Agency provides TANF block-grant moneys through the Family Independence Program ("FIP") to eligible families needing assistance. Section 400.571(1) of MICH. COMP. LAWS ANN. expressly permits the FIA to condition eligibility for FIP assistance on the recipient's being tested for substance abuse. Section 400.571(2) requires the FIA "to implement a pilot program of substance abuse testing as a condition for family independence assistance eligibility in at least 3 counties, including random substance abuse testing."
The FIP's Program Eligibility Manual ("PEM"), which sets out the program's goals, notes that "[b]ecause having strong family relationships may be more difficult if there is substance abuse ... and because substance abuse is a barrier to employment" the state of Michigan has piloted drug testing. Under the pilot program, applicants for benefits are tested prior to receiving benefits; every six months twenty percent of recipients are randomly selected for drug screening. Testing is done by urinalysis (not in a direct line of sight, for greater privacy) and samples are tested only for illegal drugs. No individual will lose benefits or eligibility for benefits on the basis of one failed urinalysis. An individual who tests positive must go to a treatment agency for a determination of whether that person is a substance abuser; if appropriate, the agency will recommend and the individual must comply with a treatment plan. However, applicants who refuse to take the drug test without good cause and applicants who fail to complete the assessment process or do not comply with a required treatment plan within two months will be refused benefits. Aid recipients who refuse to submit to the random
On September 30, 1999, the plaintiffs sued in the Eastern District of Michigan to preliminarily enjoin enforcement of section 400.571, arguing that the challenged Michigan law violated their Fourth Amendment rights because the required testing was done without particularized suspicion. The district court granted the injunction.
Howard appeals, arguing that the district court erred when it held that a public safety "special need" was the only interest that would justify a suspicionless search. Alternatively, Howard contends that Michigan's interest in the prevention of child abuse and neglect is a sufficient public safety concern.
We review the district court's grant of a preliminary injunction for an abuse of discretion. Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass'n.,
When determining whether to issue a preliminary injunction, a district court must consider four factors: "(1) whether the movant has a `strong' likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction." Leary v. Daeschner,
Whether the plaintiffs have a strong likelihood of success on the merits is heavily dependent upon whether Michigan has a "special need" for its drug-testing program, and whether the government's interests outweigh the plaintiffs' reasonable expectation of privacy. Vernonia Sch. Dist. 47J v. Acton,
In Earls, the most recent case decided by the Supreme Court pertaining to suspicionless drug testing, the Court found that the school district's interest in preventing drug abuse was sufficient to justify the testing program in light of the nationwide drug epidemic, the evidence provided by the district that drug abuse was a problem among its students and the "special responsibility" undertaken by the district to care for the children in its charge. Earls, 122 S.Ct. at 2567-68. The Court said that the students had diminished privacy interests because of the "public school environment where the State is responsible for maintaining discipline, health, and safety [and because s]choolchildren are routinely required to submit to physical examinations and vaccinations against disease." Id. at 2565. Examining the character of the students' privacy interests, the Court found that, in light of the method for collecting the test samples — unobserved urination — and the fact that the test determined only the presence of illicit drugs and the test results were available only to school personnel and only on a "need to know" basis, any intrusion into a student's privacy was "minimal." Id. at 2566. Also important was the fact that a failed drug test had no criminal consequences, but resulted, at most, in a limitation of the student's privileges to participate in extracurricular activities. Id. at 2567. Lastly, the district's "pressing concern" with drug abuse among its students, supported with evidence, was sufficient to justify the intrusion into student privacy. Id. at 2568. In reaching this result, the Court rejected the respondents' argument that a special need must based on a "surpassing safety interest" and stated that safety merely "factors into the special needs analysis" and that "drug use carries a variety of health risks for children." Id.
The plaintiffs — who did not have the benefit of the Court's Earls decision either in the district court proceedings or in preparing their brief — rely on language at the end of Chandler v. Miller,
We do not agree with the plaintiffs that this language stands for the broad proposition that special needs are limited to urgent public safety concerns. In our view, the Court in Chandler was merely contrasting the state's public image concerns
Earls, 122 S.Ct. at 2568 (internal citations and quotations omitted).
Of further support is Vernonia Sch. Dist. 47J v. Acton,
We are persuaded that the district court erred in holding that only a public safety concern can qualify as a "special need" that may justify suspicionless drug testing. We conclude, therefore, that the district court applied an erroneous legal standard in granting the preliminary injunction. The proper standard is whether Michigan has shown a special need, of which public safety is but one consideration. As we will explain, the evidence in the case at hand establishes that Michigan's special need does encompass public safety concerns, as well as other needs "beyond the normal need for law enforcement." Earls, 122 S.Ct. at 2564 (internal quotes omitted).
Primary concerns of PRWORA and TANF are that children of needy families may be cared for in their own or in their relatives' homes, and that the parents of these children may be assisted in overcoming dependence on government programs and in becoming economically self-sufficient. Howard presented to the district court numerous studies supporting the FIA's contentions that controlled substance abuse negatively affects the ability of an individual to obtain and retain employment and to be a responsible and effective parent; that the incidence of controlled substance abuse is higher among
In determining whether the plaintiffs have demonstrated a strong likelihood of success on the merits we must also consider whether the evidence supports their contention that the means chosen by Michigan are not "effective" to vindicate the interest Michigan has asserted. Earls, 122 S.Ct. at 2569. Here again, we think that the plaintiffs have fallen short. Under Michigan's program, every applicant is tested, and twenty percent of recipients are randomly tested every six months. The objections that counseled against finding constitutional the testing program in Chandler — that the tests called for by the statute were predictable and infrequent and therefore ineffective — counsel in favor of the use of random and suspicionless testing here. And here, Howard has provided evidence that the tests so far conducted have resulted in approximately ten percent positive results, demonstrating that the means utilized by Michigan are effective in detecting drug abuse among aid recipients. See also Von Raab, 489 U.S. at 676, 109 S.Ct. 1384 (rejecting the argument that persons subject to testing will be able to manipulate the test results by abstaining from drug use prior to the test).
Finally, we must examine the extent of the intrusion into the plaintiffs' privacy worked by the drug testing, in order to balance the privacy interests of the plaintiffs against Michigan's special need. We evaluate the asserted privacy interest of the plaintiffs by looking at the character and invasiveness of the privacy intrusion and the nature of the privacy interest. Acton, 515 U.S. at 654, 658, 115 S.Ct. 2386. Important to the determination of the reasonableness of the expectation of privacy is the extent of regulation of the welfare "industry," Skinner, 489 U.S. at 627, 109 S.Ct. 1402, the pervasiveness of the testing practice in other areas of life, id. at 626, 109 S.Ct. 1402, and the voluntary or involuntary nature of the procedure, Acton, 515 U.S. at 657, 115 S.Ct. 2386; Wyman, 400 U.S. at 325, 91 S.Ct. 381.
We turn first to the character of the privacy intrusion. The program at issue here requires applicants and randomly selected recipients of the FIP benefits to provide a urine sample. Like the procedures at issue in Earls, 122 S.Ct. at 2566, and Skinner, 489 U.S. at 626, 109 S.Ct. 1402, the system here allows for unobserved sample collection, and like the tests approved by the Court in Earls, 122 S.Ct. at 2566-67, and Acton, 515 U.S. at 658, 115 S.Ct. 2386, the system utilized by Michigan tests only for illicit drugs and does not
Turning to the nature of the privacy interest, it is clear that the plaintiffs have a somewhat diminished expectation of privacy. First, welfare assistance is a very heavily regulated area of public life with a correspondingly diminished expectation of privacy. Skinner, 489 U.S. at 627-28, 109 S.Ct. 1402; Knox County Educ. Ass'n, 158 F.3d at 379. The federal government provides the parameters within which the states may attempt to meet their goals. The states themselves heavily regulate the provision of welfare assistance. Applicants for welfare benefits are required by these regulations to relinquish important and often private information, and are aware that their receipt of these benefits is accompanied by a diminished expectation of privacy with regard to that information.
Given Michigan's strong interest in ensuring that the public moneys it expends through the FIP are used to foster the purposes of the FIP and to provide for the welfare of the children of the FIP recipients, and the plaintiffs' diminished expectation of privacy, the plaintiffs have not demonstrated that their privacy interests are outweighed by the interests of the state.
Accordingly, we conclude that the plaintiffs have not shown a strong likelihood of success on the merits of their claim.
We turn next to the other factors the district court was required to weigh in determining whether to issue the preliminary injunction, beginning with whether the plaintiffs have demonstrated that they will suffer irreparable injury if the injunction is denied. We conclude that they have not.
The plaintiffs' claimed injury is the violation of their Fourth Amendment right to be free from unreasonable searches. Even were we to conclude that the state could not show a special need sufficient to justify the drug testing, we would nonetheless find that the plaintiffs have not shown that the drug testing is an unreasonable search. Rather, we think that the evidence suggests that the Michigan program imposes a condition on the plaintiffs' receiving the program benefits, and that there has been no showing that the condition is unreasonable. Our conclusion is premised on the language of 42 U.S.C. § 601(b), which explicitly negates any claim of entitlement to any state program funded under the PRWORA, and the reasoning of the Court in Wyman v. James,
Whether we view the condition imposed by the state in this case as the requirement that the recipient of the benefits submit to the random and suspicionless drug tests, or the requirement that the recipient not use controlled substances — in which event, the drug test is the mechanism by which the state ensures compliance with the condition — we think that the state has made a strong showing that Michigan's program satisfies the Wyman factors. The state is attempting to insure that children are adequately cared for through the Family Independence Program, and ascertaining whether the adult recipients of the programs funds are abusing controlled substances is directly related to that end. Further, the public has a strong interest in ensuring that the money it gives to recipients is used for its intended purposes. The state is not using the information it gathers to institute criminal proceedings. As in Wyman, application of the warrant and probable cause requirements would be extremely impracticable. And like the search in Wyman, it is consensual in the sense that the recipient may refuse to submit to the test, but may not then continue to participate fully in the program. Accordingly, we do not conclude that the plaintiffs have shown irreparable harm if the preliminary injunction does not issue.
In this particular case, the third and fourth factors that comprise the preliminary injunction analysis are substantially identical: whether issuance of the injunction would cause substantial harm to others, and whether the public interest would be served by issuance of a preliminary injunction. Here, the public interest lies insuring both that the public moneys are expended for their intended purposes and that those moneys not be spent in ways that will actually endanger the public. Issuance of the injunction would work to thwart that interest, and to make it much more difficult for the state to ensure that the public at large is not harmed by FIP recipients' use of those moneys for illegal, and indeed criminal, purposes.
For all of these reasons, we conclude that the district court erred in issuing the preliminary injunction. Accordingly, we REVERSE the judgment of the district court.
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