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BNSF RY. CO. v. U.S. DEPT. OF TRANSP.

Nos. 08-1264, 08-1276, 08-1338, 08-1342, 08-1361, 08-1362, 08-1378.

566 F.3d 200 (2009)

BNSF RAILWAY COMPANY, et al., Petitioners v. UNITED STATES DEPARTMENT OF TRANSPORTATION, Respondent International Association of Machinists and Aerospace Workers, Intervenor.

United States Court of Appeals, District of Columbia Circuit.

Decided May 15, 2009.

Attorney(s) appearing for the Case

Donald J. Munro, argued the cause, for petitioners. With him on the briefs were William F. Sheehan, Jeffrey A. Bartos, Harold A. Ross, Mitchell M. Kraus, Clinton J. Miller, III, Daniel R. Elliott, III, William A. Bon, Michael S. Wolly, Roland P. Wilder, Jr., Lawrence Mann, Larry I. Willis, Bradley T. Raymond, James McCall, James W. Johnson, and Suzanne L. Kalfus.

Louis P. Warchot and Michael J. Rush were on the brief, for amicus curiae Association of American Railroads in support of petitioners.

Mark W. Pennak, Attorney, U.S. Department of Justice, argued the cause, for respondent. With him on the brief were Gregory G. Katsas, Assistant Attorney General, and Leonard Schaitman, Attorney. Lowell V. Sturgill, Jr., Attorney, entered an appearance.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Under Department of Transportation regulations, employees in the aviation, rail, motor carrier, mass transit, maritime and pipeline industries who either fail or refuse to take a drug test must successfully complete a drug treatment program and pass a series of urine tests as a condition of performing any safety-sensitive duties. To prevent cheating, the Department modified its regulations in 2008 to require that such tests be conducted under...

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