O'Brien, etc. v. Massachusetts Bay

• Court: Court of Appeals for the First Circuit
• Decided: December 7, 1998
• Docket: 98-1502
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1502


THOMAS O'BRIEN, ETC., ET AL.,



                     Plaintiffs, Appellants,



                                v.



           MASSACHUSETTS BAY TRANSPORTATION AUTHORITY,



                       Defendant, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



        [Hon. George A. O'Toole, Jr., U.S. District Judge]


Before



                      Selya, Circuit Judge,

                                

          Coffin and Campbell, Senior Circuit Judges.


John M. Becker, with whom Sandulli, Grace, Shapiro, Horwitz &

Davidson, P.C. was on brief, for appellants.

     H. Reed Witherby, with whom Smith & Duggan LLP was on brief,

for appellee.


December 4, 1998


SELYA, Circuit Judge.  Wrapping their claims securely in

the mantle of federalism, Thomas O'Brien and Edward O'Malley

protest an order of the district court which, in effect, allows

their employer, the Massachusetts Bay Transportation Authority

(MBTA), to continue random drug and alcohol testing of transit

police.  We affirm.

                                I

                            Background

  Most constituencies regard the Urban Mass Transportation

Act, more recently dubbed the Federal Transit Act, 49 U.S.C. 

5301-5330, 5332-5338, 10531 (the Transit Act), as a boon; after

all, it provides eligible state and local governments with generous

funding for qualified public works projects.  The MBTA, a political

subdivision of the Commonwealth of Massachusetts, see Mass. Gen.

Laws, ch. 161A,  2, has long availed itself of the Transit Act's

bounty.  Since 1965, it has applied for and received funding to the

tune of approximately $3 billion under this statutory scheme.  The

beat goes on:  as of June 30, 1995, the MBTA was engaged in $1

billion worth of ongoing capital projects, 80% funded by the

federal government under the auspices of the Transit Act.

  Federal subsidies often have strings attached, and monies

disbursed pursuant to the Transit Act are no exception.  One such

string emanates from requirements contained in the Omnibus

Transportation Employee Testing Act of 1991, Pub. L. No. 102-143,

105 Stat. 952, that Congress has made applicable to mass transit

employers.  See 49 U.S.C.  5331 (the Testing Act).  A core

provision of the Testing Act requires the Secretary of

Transportation to develop a program that, inter alia, directs

recipients of the federal government's Transit Act largesse to

conduct random drug and alcohol testing of "mass transportation

employees responsible for safety-sensitive functions."  Id. at 

5331(b)(1)(A).  The Secretary permissibly defines "safety-sensitive

functions" to include those that involve "carrying a firearm for

security purposes."  49 C.F.R.  653.7, 654.7.  Recipients of

federal aid for mass transit projects must abide by the

requirements of the Testing Act and the regulations promulgated

thereunder (including the requirement for random drug and alcohol

tests).  Failure to adhere strips a recipient of its eligibility

for federal financial assistance.  See 49 U.S.C.  5331(g).

  The MBTA is subject to the constraints of the Testing Act

by reason of its continued application for, and receipt of, grants

under the Transit Act.  To comply with this statutory obligation,

the MBTA inaugurated a program requiring MBTA police officers to

submit to random drug and alcohol screens.  This protocol did not

gain accolades in all quarters.  O'Brien and O'Malley, acting

individually and in their respective official capacities as

presidents of the MBTA Police Patrol Officers' Association and the

MBTA Police Sergeants' Association, brought suit in the Suffolk

Superior Court seeking declaratory and injunctive relief.  They

averred that the MBTA's policy violated their rights under both

federal law and the Massachusetts Declaration of Rights (the MDR). 

The state court granted a preliminary injunction on the ground that

Article 14 of the MDR, as interpreted in Guiney v. Police Comm'r,

411 Mass. 328, 582 N.E.2d 523 (1991), likely precluded enforcement

of the testing protocol.  In arriving at its conclusion, the court

rejected the notion of federal preemption, stating its disbelief

that the MBTA, "by voluntarily applying for and accepting Federal

funds, can then eviscerate an employee's state constitutional

rights because Congress has attached a condition to those funds."

     The MBTA seasonably removed the action to the federal

district court.  See 28 U.S.C.  1331, 1441.  Although the state

court's injunction remained in effect for the time being, seeGranny Goose Foods, Inc. v. Brotherhood of Teamsters, Etc., Local

No. 70, 415 U.S. 423, 436 (1974), it did not last very long.  In

fairly short order, the district court granted partial summary

judgment in the MBTA's favor, concluding that federal law preempted

any contrary provision of state law.  The court dissolved the

preliminary injunction shortly thereafter.  This appeal ensued.  We

have jurisdiction under 28 U.S.C.  1292(a)(1) (conferring

appellate jurisdiction to review interlocutory orders "granting,

continuing, modifying, refusing or dissolving injunctions").

                                II

                             Analysis

                                A.

                            Preemption

     The vast majority of preemption cases involve situations

in which Congress has exercised its power under the Commerce

Clause.  See Laurence H. Tribe, American Constitutional Law  6-29,

508 (2d ed. 1988).  Here, however, we are dealing with a

congressional exercise of the spending power, not the commerce

power, and the dynamics between preemption and Congress's reliance

on the spending power differ appreciably from those applicable in

the Commerce Clause context.  The principal difference is that

whereas preemptive legislation enacted under the Commerce Clause

trumps state law throughout the United States ex proprio vigore,

preemptive legislation enacted under the spending power presents

states with a choice:  they may either accept federal funds (and

subject themselves to requirements imposed by federal law) or

decline such funds (and avoid the necessity of abiding by those

requirements).  See Golden State Transit Corp. v. City of Los

Angeles, 493 U.S. 103, 112 (1989); see also Pennhurst State Sch. &

Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (Pennhurst I) (stating

that "legislation enacted pursuant to the spending power is much in

the nature of a contract:  in return for federal funds, the States

agree to comply with federally imposed conditions").

     Thus, if this were a situation in which the federal

sovereign had invoked the spending power to justify preemption over

the laws of a state that had eschewed federal funds, we could not

dismiss lightly the state court's intuition about the awkwardness

of asserting preemption solely on the basis of Congress's exercise

of that power.  In this case, however, the MBTA did not refuse to

accept federal mass transit money, but, rather, willingly tapped

into the federal fisc (and, as far as we can tell, intends to

continue accepting federal funds for the indefinite future).  When

Congress delineates conditions governing the receipt of federal

dollars and a state agency accepts the money on that basis, the

Supremacy Clause requires conflicting local law to yield.  See CSX

Transp., Inc. v. Easterwood, 507 U.S. 658, 663-64 (1993); Lawrence

County v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 269-70

(1985); Blum v. Bacon, 457 U.S. 132, 145-46 (1982); Carleson v.

Remillard, 406 U.S. 598, 601 (1972); Townsend v. Swank, 404 U.S.

282, 286 (1971); Helvering v. Davis, 301 U.S. 619, 645 (1937);

Amalgamated Transit Union, Local Div. 589 v. Commonwealth of Mass.,

666 F.2d 618, 627 (1st Cir. 1981) (Breyer, J.).  The rule, then,

is crystal clear: as long as a state receives federal funds for a

particular purpose, its law, if contrary to conditions attached to

the funds, must give way to federal law.

     That brings the finish line into sight.  It cannot be

gainsaid that the most obvious cases for federal preemption occur

when Congress has expressly declared its intent.  See, e.g.,

Barnett Bank of Marion County v. Nelson, 517 U.S. 25, 31 (1996);

Greenwood Trust Co. v. Commonwealth of Mass., 971 F.2d 818, 822

(1st Cir. 1992).  The Testing Act supplies a classic example of

this species of legislative expression.  It unambiguously provides

that "[a] State or local government may not prescribe, issue, or

continue in effect a law, regulation, standard, or order that is

inconsistent with regulations prescribed under this section."  49

U.S.C.  5331(f)(1).  That message is reinforced by the

regulations.  See 49 C.F.R.   653.9, 654.9.  The plain language

of these provisions bespeaks "conflict preemption," see, e.g.,

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984), which means

that the only remaining question here is whether state law either

contradicts applicable federal law or frustrates the objects that

federal law seeks to promote, see, e.g., Boggs v. Boggs, 117 S. Ct.

1754, 1760-61 (1997).

     This question is easily answered.  There can be no doubt

that the MDR, as interpreted by the state superior court and by the

plaintiffs, conflicts with the requirements imposed by federal law. 

Quite simply, the state court's preliminary injunction (premised on

its reading of state law) prevented the MBTA from conducting the

random drug and alcohol testing that federal law (namely, the

Testing Act) requires recipients of federal Transit Act funds to

sponsor.  Moreover, contrary to the state court's intimation, it is

of no moment that in this instance a federal law supplants a state

constitutional   as opposed to a statutory or regulatory  

provision.  Such a result is exactly what the letter of the

Supremacy Clause demands.  See U.S. Const., Art. VI, cl. 2

(mandating that federal law "shall be the supreme Law of the Land

. . ., any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding").  Thus, we unhesitatingly affirm the

district court's conclusion that federal law has preemptive force

in this situation.


B.

                 Conforming Conduct to State Law

     In this venue, the plaintiffs shift their emphasis.  They

maintain that, even if section 5331(f)(1) binds the MBTA to follow

the Testing Act's directive as long as it continues to receive

federal financial assistance, the injunction nonetheless should

remain in force.  To support this proposition, they embellish their

original claim.  Instead of arguing simply that federal law lacks

preemptive effect and that the MDR forbids the MBTA from conducting

random tests, the plaintiffs assert that the MBTA should be

precluded from applying for federal funds in the first place,

because accepting such funds will create an inevitable conflict

with state law.  The paramount problem with this argument   there

are others which we need not discuss   is that it invites a federal

court to enjoin state officials (those who manage the MBTA) from

acting in a manner that allegedly contravenes state law.

     It is not the proper purview of a federal court to

supervise state officials' compliance with state law.  See ANR

Pipeline Co. v. Lafaver, 150 F.3d 1178, 1188-89 (10th Cir. 1998);

LaShawn A. by Moore v. Barry, 144 F.3d 847, 852 (D.C. Cir. 1998);

Archie v. City of Racine, 847 F.2d 1211, 1216 (7th Cir. 1988) (en

banc).  As Justice Powell observed, "it is difficult to think of a

greater intrusion on state sovereignty than when a federal court

instructs state officials on how to conform their conduct to state

law."   Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106

(1984) (Pennhurst II).  Hence, we decline the plaintiffs'

invitation to cross this line. 

     Relatedly, we note the anomaly inherent in the

plaintiffs' position.  Although we take no view on the requirements

of Massachusetts law, it is difficult to fathom, as an abstract

matter, how forcing a state agency to forgo billions of dollars in

federal subsidies would render its hierarchs more accountable to

the citizenry   or how such a step would profit the agency's

workforce in the long run.  Were Massachusetts to renounce federal

funds in order to save the plaintiffs from the indignity of random

drug and alcohol tests, the Commonwealth then would have only four

options (to be used singly or in combination):  it could raise

taxes to fill the budgetary gap, transfer funds from some other

line in the budget, lay off MBTA employees to curtail expenses, or

cease all construction and improvements relating to mass transit. 

None of these alternatives strikes us as attractive from the

standpoint of the workers whom O'Brien and O'Malley represent. 

More important, though, if such dire remedies are to be

implemented, that is a decision for Massachusetts to make, not one

for a federal court to impose.  Cf. Missouri v. Jenkins, 495 U.S.

33, 50-51 (1990) (holding that a federal court's order for a local

tax increase violated principles of comity).


C.

                    The Scope of the Protocol

     The plaintiffs have a final shot in their sling.  They

asseverate that the district court should not have dissolved the

injunction completely because the MBTA's testing policies exceed

the requirements set forth in the federal regulations (and to that

extent are not within the prophylaxis of section 5331(f)(1)).  They

claim, for example, that the MBTA's alcohol screening standard is

twice as strict as that mandated by federal law and that the MBTA

tests for more substances than federal law specifies.  The MBTA

disputes the accuracy of these charges and states that its protocol

faithfully tracks federal requirements.

     We need not resolve this contretemps.  To the extent that

the plaintiffs claim that exceeding federal testing requirements,

without more, violates federal law, they are mistaken.  It is not

enough to aver that the MBTA's protocol differs from the federal

prototype.  From the viewpoint of federal preemption, differences

are not significant unless they conflict with federal law in a

manner that somehow frustrates the purposes behind that law.  SeeHayfield N. R.R. Co. v. Chicago & N.W. Transp. Co., 467 U.S. 622,

627 (1984) (holding that the Supremacy Clause "invalidates any

state law that contradicts or interferes with an Act of Congress"). 

Here, the plaintiffs fail to demonstrate any material dissonance

between the Testing Act and the MBTA's protocol.  Indeed,

regulations promulgated under the Testing Act contemplate the

possibility that a state may enact tougher requirements   and they

do not preclude a state from doing so.  See 49 C.F.R.  653.25(i)

(recognizing the possibility that an employer may implement an

anti-drug program that tests for more than the five controlled

substances specified by the Testing Act regulations); see also id.at  653.11 (preventing employers from adopting additional measures

only if such measures would frustrate the purposes of the Testing

Act, as elucidated in the applicable regulations).

     Nor can the plaintiffs rewardingly recast their thesis. 

To the extent that they are claiming that a federal court should

grant injunctive relief (or leave such relief intact) because

certain provisions in the MBTA's protocol, not compelled by federal

law, violate state law, this argument is merely a reprise of the

argument that we previously rejected.  See Part II(B), supra.  In

short, the plaintiffs again ask us to conform the MBTA's testing

protocol to what they contend are the requirements of state law. 

Pennhurst II forbids us from honoring this request.


III

                            Conclusion

     We need go no further.  Massachusetts authorities have

elected to draw on federal coffers to finance a bevy of mass

transit projects.  Having accepted those funds, they must abide by

the conditions that Congress attached to them, one of which

mandates random drug and alcohol screens for employees who, like

the plaintiffs, perform safety-sensitive functions.  Because

applicable federal law includes an express preemption provision,

contrary state law cannot stand as an obstacle to the testing

protocol.  Moreover, to the extent that the plaintiffs claim that

the MBTA's initial decision to seek federal funding transgressed

state law, they are attempting to press their claim in a forum in

which it is not properly cognizable.



     The order dissolving the preliminary injunction is

affirmed.  Costs to appellee.