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BURKA v. NEW YORK CITY TRANSIT AUTHORITY

September 19, 1990

THOMAS BURKA, EUGENE AVENT, FRANK DOE, TRACEY DEVLIN, FITZGERALD CUMBERBATCH, AND FELIX ARCE, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, JAMES SALAZAR, PLAINTIFF-INTERVENOR,
v.
NEW YORK CITY TRANSIT AUTHORITY, DAVID L. GUNN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE NEW YORK CITY TRANSIT AUTHORITY, AND HIS SUCCESSORS IN OFFICE; ROBERT F. KILEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE NEW YORK CITY TRANSIT AUTHORITY, AND HIS SUCCESSORS IN OFFICE; WILLIAM I. BUCHANAN, III, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT MANAGER OF LABOR RELATIONS FOR THE NEW YORK CITY TRANSIT AUTHORITY, AND HIS SUCCESSORS IN OFFICE; RICHARD MANDEL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE ACTING MEDICAL DIRECTOR OF THE NEW YORK CITY TRANSIT AUTHORITY, AND HIS SUCCESSORS IN OFFICE, DEFENDANTS. JOHN FA, PLAINTIFF, V. NEW YORK CITY TRANSIT AUTHORITY AND DAVID L. GUNN, INDIVIDUALLY AND AS PRESIDENT OF THE NEW YORK CITY TRANSIT AUTHORITY, DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

  OPINION AND ORDER

This is a consolidation of challenges to the urine testing procedures utilized by the New York City Transit Authority ("TA") since January 1, 1984 to test for use of marijuana.*fn1 The plaintiffs seek both monetary and equitable relief. During the trial of this case, the Court approved the parties' agreement to bifurcate the issues of liability and remedy. In Burka v. New York City Transit Authority, 739 F. Supp. 814 (S.D.N.Y. 1990) ("the Opinion and Order of June 5, 1990"), the Court made findings of fact and conclusions of law on the issue of liability. Herein, the Court resolves the major legal disputes impeding the ability of the parties to consent to a remedy order.

Background

The plaintiffs consist of representatives of three subclasses certified pursuant to Federal Rule of Civil Procedure 23, as well as the individual plaintiff John Fa, and plaintiff-intervenor James Salazar. The plaintiffs were permanent employees, probationary employees or applicants, who

  have been or will be denied employment or a
  promotion, suspended, required to undergo drug
  counseling, terminated or otherwise penalized
  solely because of a marijuana positive urinalysis
  test.

Burka v. New York City Transit Authority, 110 F.R.D. 595, 600 (S.D.N.Y. 1986) (Goettel, J.).

The three subclasses, as described by Judge Goettel in his certification decision, are:

  (A) those TA employees who deny drug use but who
  have been or in the future will be subjected to
  adverse employment action based on drug-positive
  test results obtained pursuant to a periodic
  physical examination, a promotion application or
  an on-duty incident ("Subclass A");
  (B) those TA employees who admit to off-duty drug
  use and who have been or in the future will be
  subjected to adverse employment action due to
  testing connected with the above activities
  ("Subclass B");
  (C) those applicants for positions with the TA
  who deny drug use and who have been or in the
  future will be denied employment based on
  drug-positive test results ("Subclass C").

Burka v. New York City Transit Authority, 121 F.R.D. 215, 216 (S.D.N.Y. 1988). The subclasses, including plaintiff-intervenor Salazar and plaintiff Fa, neither include nor represent either (1) applicants who admit to drug use, (2) employees tested solely due to supervisor's suspicion, or (3) employees tested because a prior test revealed evidence of drug use. Id. at 216 n. 2.

The Opinion and Order of June 5, 1990 made findings of fact and conclusions of law as to defendants' liability to plaintiffs under 42 U.S.C. § 1983. The Court concluded that defendants were liable for violation of (1) the procedural due process rights of class members who were permanent employees and were tested between January 1, 1984 and April 1987 and (2) the search and seizure rights of those class members who were tested, between January 1, 1984 and April 1987, when they were either employees with non-safety-sensitive job titles, applicants for non-safety-sensitive job titles, or employees (with non-safety-sensitive job titles) seeking promotion to non-safety-sensitive job titles.

On July 31, 1990, the Court received a proposed remedy order from each side.*fn2 Defendants' proposed order was accompanied by a memorandum of law. The two proposed orders revealed that the parties had several major legal disputes as to the appropriate form of relief. On August 21, 1990, plaintiffs submitted a memorandum of law and on August 31, 1990, the Court received defendants' reply memorandum. Herein the Court resolves the major legal disputes on the issue of remedies for the Section 1983 violations found in the Opinion.

Discussion

I. Unlawful Searches

A.  Compensation

Compensation for an unlawful search cannot be obtained unless the constitutional violation caused the harm suffered. Carey v. Piphus, 435 U.S. 247, 255, 98 S.Ct. 1042, 1047-48, 55 L.Ed.2d 252 (1978). Courts have permitted awards of compensation for the emotional shock or physical harm caused by an unconstitutional search or seizure. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (emotional damages for unconstitutional search of apartment and arrest); Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (compensation available for harm caused by use of excessive force in violation of Fourth Amendment); Pastre v. Weber, 717 F. Supp. 992 (S.D.N.Y. 1989) (same). The damages received by plaintiffs in such scenarios were for the immediate and direct impact of the intrusion on the privacy interests protected by the search and seizure clause.*fn3

Here, plaintiffs do not claim damages for the harm to their Fourth Amendment privacy interests. Rather than seeking compensation for the harm experienced by being subjected to the intrusiveness of an unlawful taking of urine, plaintiffs seek compensation for the harm they experienced when they were disciplined or denied employment or a promotion. Plaintiffs request back pay and reinstatement for those whose urine was unconstitutionally taken. Defendants have included a provision for reinstatement of those whose Fourth Amendment rights were violated in their proposed order, but argue in their memoranda that plaintiffs are entitled to neither back pay nor reinstatement for the intrusions on their Fourth Amendment rights.

The Fourth Amendment does not entitle plaintiffs to compensation for the results of the disciplinary hearings or decisionmaking processes, in which unlawfully obtained evidence was considered. The Fourth Amendment protects privacy interests rather than the property or liberty interests which may be at stake in a disciplinary proceeding or a decisionmaking process. Plaintiffs have cited no cases in which a victim of an unlawful search or seizure was able to recover for loss of wages caused by the use of the unlawfully obtained evidence at a hearing, trial or other government decisionmaking process which had an outcome unfavorable to the victim.*fn4

Although the Fourth Amendment's exclusionary rule results in victims of Fourth Amendment violations often receiving additional protection of their property or liberty interests at trials and certain hearings, the exclusionary rule is not derived from the premise that an individual's Fourth Amendment privacy interests would be harmed if unlawfully obtained evidence were to be admitted at trial and relied upon by the factfinder in depriving the individual of property and liberty interests. See Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 1166, 94 L.Ed.2d 364 (1987) ("the exclusionary rule `is neither intended or able to "cure the invasion of the defendant's rights which he has already suffered."'") (quoting United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677 (1984) (quoting Stone v. Powell, 428 U.S. 465, 540, 96 S.Ct. 3037, 3074, 49 L.Ed.2d 1067 (1976) (White, J., dissenting))); INS v. Lopez-Mendoza, 468 U.S. 1032, 1046, 104 S.Ct. 3479, 3487, 82 L.Ed.2d 778 (1984) ("[t]he exclusionary rule provides no remedy for completed wrongs"); United States v. Janis, 428 U.S. 433, 446, 96 S.Ct. 3021, 3028, 49 L.Ed.2d 1046 (1976) (exclusionary rule is not "`a personal constitutional right of the party aggrieved'") (quoting United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619-20, 38 L.Ed.2d 561 (1974)); United States v. Rea, 678 F.2d 382, 388 (2d Cir. 1982) ("The rule that evidence seized in violation of the Fourth Amendment is inadmissible in a criminal proceeding against the search victim is not intended to, and cannot, repair the injury done to the privacy rights of the victim."). The sole purpose of the exclusionary rule is to deter future unlawful government conduct. See James v. Illinois, ___ U.S. ___, 110 S.Ct. 648, 651 & n. 1, 107 L.Ed.2d 676 (1990); United States v. Janis, 428 U.S. at 446, 96 S.Ct. at 3028; People v. Drain, 73 N.Y.2d 107, 110, 538 N.Y.S.2d 500, 501, 535 N.E.2d 630 (N.Y. 1989).

Accordingly, the Fourth Amendment interests of the person whose Fourth Amendment rights were actually violated are not harmed by the consideration of unlawfully obtained evidence at a trial or hearing, or in a decisionmaking process. See Illinois v. Krull, 107 S.Ct. at 1169 (Fourth Amendment permits admission of unlawfully obtained evidence when admission would not further deterrence of unlawful conduct by government officials); United States v. Leon, 468 U.S. at 906-908, 104 S.Ct. at 3412-13 (same); United States v. Janis, 428 U.S. at 446-47, 96 S.Ct. at 3028-29. The due process clause, rather than the search and seizure clause, protects the ...


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