## Facts

- DOT regulates drug and alcohol testing for safety-sensitive employees in multiple transportation industries under the Omnibus Transportation Employee Testing Act of 1991.
- Employees who fail or refuse a DOT drug test may not resume safety-sensitive work until they complete evaluation/treatment and pass a “return-to-duty” urine test, followed by at least six unannounced “follow-up” tests over twelve months.
- Before 2008, employers could (but were not required to) use “direct observation” for return-to-duty and follow-up urine tests.
- In 2008, DOT amended its rules to require direct observation for all return-to-duty and follow-up urine tests.
- “Direct observation” required a same-gender observer to watch the urine go from the employee’s body into the collection container; in some settings DOT also required limited pre-collection checks involving partial disrobing to detect concealed devices or substituted urine sources.
- DOT justified the amendment by citing evidence of increasing availability and use of cheating devices and adulterants, and employer underuse of optional direct observation.
- BNSF Railway Company and several transportation unions petitioned for review, challenging only the mandatory direct-observation component (not DOT’s general authority to require drug testing).
- A labor organization intervened in support of DOT.

## Issues

1. Whether DOT’s decision to mandate direct observation for all return-to-duty and follow-up tests was arbitrary or capricious under the Administrative Procedure Act.
2. Whether mandatory direct-observation urine testing for return-to-duty and follow-up tests is an unreasonable search under the Fourth Amendment.

## Decision

- The court denied the petitions for review and upheld the 2008 regulation.
- DOT’s rulemaking was not arbitrary or capricious because DOT identified a concrete problem (cheating), explained why optional observation was inadequate, and reasonably limited the mandate to return-to-duty and follow-up testing.
- Although direct observation and associated measures were highly intrusive, the court held the searches reasonable under the Fourth Amendment in the safety-sensitive transportation context.

## Legal Principles

- Under APA arbitrary-and-capricious review, an agency must reasonably explain its policy choice and connect the rule to the problem identified; a supported determination that prior discretionary measures were ineffective can justify a mandatory requirement.
- Compelled urine testing is a Fourth Amendment search; in regulated employment settings involving public safety, suspicionless testing may be evaluated under the “special needs” framework rather than ordinary law-enforcement standards.
- Fourth Amendment reasonableness in special-needs testing turns on balancing privacy interests against governmental interests, including the reliability and integrity of the testing program.
- A more intrusive collection method may be upheld when targeted to a higher-risk subgroup (employees who previously failed or refused tests), supported by evidence of evasion methods, and constrained by procedural safeguards (including same-gender observers and limits tied to collection integrity).

## Conclusion

The D.C. Circuit upheld DOT’s requirement that return-to-duty and follow-up urine drug tests be conducted under direct observation, concluding the agency’s explanation and record satisfied the APA and that the targeted, safety-driven testing protocol was reasonable under the Fourth Amendment despite substantial privacy intrusion.


BNSF Ry. Co. v. Dep’t of Transp., 566 F.3d 200 (D.C. Cir. 2009)