American Federation of State, County and Municipal Employees Council 79 v. Rick Scott ( 2013 )


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  •                 Case: 12-12908        Date Filed: 05/29/2013       Page: 1 of 61
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 12-12908
    ________________________
    D.C. Docket No. 1:11-cv-21976-UU
    AMERICAN FEDERATION OF STATE, COUNTY
    AND MUNICIPAL EMPLOYEES COUNCIL 79,
    RICHARD FLAMM,
    Plaintiffs - Appellees,
    versus
    RICK SCOTT,
    in his official capacity as Governor of the
    State of Florida,
    Defendant - Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (May 29, 2013)
    Before MARCUS, BLACK and SILER, * Circuit Judges.
    MARCUS, Circuit Judge:
    *
    Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
    designation.
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    This appeal presents two closely related issues: first, the extent to which an
    executive order that mandates suspicionless drug testing of 85,000 state employees
    violates the Fourth Amendment; and, second, the propriety of the district court’s
    decision to enjoin the Governor of Florida from testing all 85,000 covered
    employees. The district court, confronted with a suspicionless drug testing policy
    that almost certainly sweeps far too broadly and hence runs afoul of the Fourth
    Amendment in many of its applications, granted relief that also swept too broadly
    and captured both the policy’s constitutional applications and its unconstitutional
    ones. We therefore vacate the district court’s order and remand for further
    proceedings.
    Confusion regarding the scope of the relief that the plaintiffs requested has
    plagued this lawsuit from its inception in 2011. In that year, Appellant Rick Scott,
    the Governor of Florida, issued Executive Order 11-58 (“EO”), which mandated
    two types of suspicionless drug testing: random testing of all employees at state
    agencies within his control, and pre-employment testing of all applicants to those
    agencies. Appellee American Federation of State, County, and Municipal
    Employees Council 79 (“Union”), which represents many employees covered by
    the EO, sued in the United States District Court for the Southern District of Florida
    to invalidate the EO, and to enjoin its implementation, as unconstitutional under
    the Fourth Amendment. Initially, as the Union itself has conceded, its challenge
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    was exclusively facial in nature and sought to strike down the entire EO rather than
    to limit its applicability. By the summary-judgment stage, however, the Union
    urged the district court to construe its complaint as making both a facial and an as-
    applied challenge. The Union’s as-applied challenge contended only that the EO
    was unconstitutional when applied to employees not occupying safety-sensitive
    positions -- a group that the Union estimated to be roughly 60 percent of the
    covered employees.
    The district court granted summary judgment to the Union and denied
    summary judgment to the State. In its order, the district court concluded that the
    State’s justifications for testing all of its employees, including those in non-safety-
    sensitive positions, were insufficient. The court then turned to the question of what
    relief it would grant. The district court granted relief that it described as “as-
    applied” but that remained essentially facial in nature: the court invalidated the EO,
    and enjoined its implementation, as to all 85,000 current state employees. This
    relief covered every single employee and disregarded any distinction between
    safety-sensitive and non-safety-sensitive positions.
    Yet, as the Supreme Court has established, a party is entitled to facial
    invalidation of a law on Fourth Amendment grounds only if the party can
    demonstrate that there are no constitutional applications of that law. In this case,
    the district court declared the EO unconstitutional as to all current state employees.
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    This relief swept too broadly, enjoined both constitutional and unconstitutional
    applications of the EO, and did so without examining the specific job categories to
    be tested. What the Supreme Court’s case law requires, in contrast, is that the trial
    court balance the governmental interests in a suspicionless search against each
    particular job category’s expectation of privacy. Among the covered state
    employees, for example, are law enforcement personnel who carry firearms as well
    as employees tasked with operating heavy machinery or large vehicles -- groups
    that the Supreme Court has held, in a line of precedent beginning with Skinner v.
    Ry. Labor Execs.’ Ass’n, 
    489 U.S. 602
     (1989), may be drug tested without
    individualized suspicion. As to those safety-sensitive employees, the EO’s
    application would most likely be constitutional, and, therefore, the district court’s
    order cannot stand as written.
    The State, however, asks us to do more than vacate and remand. It argues
    that the Governor is entitled to summary judgment, and that we should reverse the
    district court, because the EO is constitutional as applied to all 85,000 state
    employees. At bottom, the State wants us to approve of a drug testing policy of far
    greater scope than any ever sanctioned by the Supreme Court or by any of the
    courts of appeals. In order to meet its burden of justifying the EO, the State offers
    several reasons, stated only at the highest order of abstraction, for why it can drug
    test all of its employees without any individualized suspicion. However, the
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    Supreme Court has approved of suspicionless drug testing only when the
    government has demonstrated heightened interests, such as a serious threat to
    public safety, that apply narrowly to specific job categories of employees. Yet
    during the summary judgment proceedings, the State refused to provide reasons
    that apply narrowly to specific job categories, which undoubtedly hindered the
    district court from conducting its balancing calculus at the proper level of
    specificity. On remand, the State must meet its burden of demonstrating important
    special needs on a job-category-by-category basis. Its current arguments have
    failed to convince us to direct summary judgment in its favor.
    I.
    A.
    On March 22, 2011, Governor Scott issued Executive Order 11-58. The EO
    directed all state agencies “within the purview of the Governor . . . to provide for
    pre-employment drug testing for all prospective new hires and for random drug
    testing of all employees within each agency.” The EO further instructed the
    agencies to “provide for the potential for any employee . . . to be tested at least
    quarterly.” Approximately 85,000 people, or 77 percent of the State’s workforce,
    are covered by the EO.
    Although the Executive Order does not specify a method of drug testing, the
    State indicated in the district court that urinalysis would be the method used to
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    implement the testing program. The testing process would afford the person
    providing the sample “individual privacy” unless there is reason to believe that a
    particular individual intends to alter or substitute the sample. In addition, the
    results of the drug tests cannot be used as evidence, obtained in discovery, or
    otherwise disclosed in any public or private proceeding.
    The EO represented a significant expansion of the State’s employee drug
    testing regime. Prior to the EO’s issuance, Florida’s Drug-Free Workplace Act
    (“DFWA”), 
    Fla. Stat. § 112.0455
    , permitted drug testing in more limited instances.
    State agencies were authorized to test: job applicants to “safety-sensitive
    position[s],” meaning “any position, including a supervisory or management
    position, in which a drug impairment would constitute an immediate and direct
    threat to public health or safety,” § 112.0455(5)(f) & (m); current employees, if the
    employer had reasonable suspicion; current employees, if the test was “conducted
    as part of a routinely scheduled employee fitness-for-duty medical examination”;
    and current employees who entered “an employee assistance program for drug-
    related problems.” See § 112.0455(7)(a)-(d). This version of the statute notably did
    not provide for random suspicionless testing of any current employees, even those
    employed in safety-sensitive positions.
    Other statutes or administrative regulations provided for suspicionless
    testing of current employees in specific departments. The Department of
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    Corrections (“DOC”), for instance, provided for random suspicionless testing of its
    employees. See 
    Fla. Stat. § 944.474
    . The Department of Juvenile Justice (“DJJ”)
    also required random suspicionless drug testing of its employees. The Department
    of Transportation (“DOT”) and the Department of Environmental Protection
    (“DEP”), meanwhile, required random suspicionless testing of their safety-
    sensitive employees, particularly those who held commercial driver’s licenses.
    In 2012, the Florida Legislature amended the Drug-Free Workplace Act and
    substantially broadened it. The current version of 
    Fla. Stat. § 112.0455
     permits
    random testing of all employees at three-month intervals, see § 112.0455(7)(c)
    (2012), and expands the definition of “job applicant” to cover all job applicants,
    see § 112.0455(5)(f) (2012). In essence, the current version of the DFWA
    authorizes what the EO mandates.
    The text of the Executive Order offers several justifications for this
    sweeping policy, including, among others, that: (1) “the State, as an employer, has
    an obligation to maintain discipline, health, and safety in the workplace”; (2)
    “illegal drug use has an adverse [e]ffect on job performance,” including the risk of
    absenteeism, greater burden on state health benefit programs, and a decline in
    productivity; and (3) drug use poses a risk to the public, which “interacts daily with
    state employees.”
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    Prior to the issuance of the EO, the State had collected data from random
    drug testing of job applicants and employees at three departments -- the
    Department of Transportation, the Department of Juvenile Justice, and the
    Department of Corrections. Random testing at DOT and DJJ yielded positive
    results in less than one percent of cases between 2008 and 2011; random testing at
    DOC produced positive results in less than one percent of cases in 2008 and 2009,
    then increased to 2.4 and 2.5 percent in 2010 and 2011. The State presented this
    data as evidence that there was a preexisting drug problem among the state
    employee population.
    B.
    On May 31, 2011, before any agency implemented the EO, the Union filed
    suit, alleging that the EO violated the Fourth Amendment. Using the terminology
    of a facial challenge, the Union described its suit as “an action . . . for a
    preliminary injunction and a permanent injunction against the Governor of the
    State of Florida, ordering him to cease, or not implement, all employee drug-
    testing mandated by his Executive Order Number 11-58,” and also for “declaratory
    judgment declaring that the drug-testing regime mandated by Executive Order 11-
    58 violates the Fourth Amendment of the Constitution.” Compl. ¶ 1. The gravamen
    of the complaint was that “[t]he Supreme Court of the United States has held that
    suspicionless drug-testing by the government is an unreasonable search violative of
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    the Fourth Amendment, except under certain special circumstances,” none of
    which applied to the EO. Compl. ¶ 11. More precisely, the EO “violate[d] the
    Fourth Amendment . . . because it command[ed] state agencies to conduct random,
    suspicionless searches of all employees, without limiting the searches in any way
    to employees in safety-sensitive positions where there is a concrete danger of real
    harm.” Compl. ¶ 13.
    Regarding its standing, the Union averred that it represented more than
    50,000 employees at the agencies covered by the EO. Its members were subject
    both to the random testing requirement for current employees as well as the pre-
    employment testing requirement for new hires because “employees represented by
    [the Union] who seek a promotion to another job are considered new employees.”
    Compl. ¶ 15. Thus, the Union “sue[d] on its own behalf” as well as “in its
    organizational capacity on behalf of those state employees it represent[ed].”
    Compl. ¶ 16.
    In the final section of the complaint, the Union reiterated its request for
    facial relief. The Union first asked the district court to declare “that Defendant’s
    Executive Order 11-58 is quashed because it violates the right of the people to be
    free from unreasonable searches, under the Fourth Amendment.” The Union
    further urged the district court to issue a permanent injunction ordering “the
    Defendant [to] immediately direct all agencies and persons affected by
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    Defendant’s Executive Order 11-58 to cease all drug-testing implemented in
    compliance with the order.” Compl. at 6-7.
    C.
    The parties filed cross motions for summary judgment. The Union argued
    that the Executive Order was unconstitutional because it failed to separate safety-
    sensitive from non-safety-sensitive positions and thus moved the district court to
    issue both a declaratory judgment declaring that the EO violated the Fourth
    Amendment and a permanent injunction barring the EO’s implementation.
    Notably, at this stage, the Union began recasting its complaint in the
    terminology of an as-applied challenge. The Union stressed that it “challenge[d]
    only the new drug-testing regime that tests the rest of the State’s workers [not
    covered by the then-current version of 
    Fla. Stat. § 112.0455
    ] -- those not suspected
    of drug abuse and those who don’t hold safety-sensitive jobs.” And, in its
    opposition to the State’s cross-motion for summary judgment and its reply brief,
    the Union expressly insisted it had made an as-applied challenge. The Union
    argued that “the Complaint, fairly read, clearly put the Governor on notice that [the
    Union] was bringing both a facial and as-applied challenge,” and that its as-applied
    challenge contended that the statute was “unconstitutional as applied to [Union]
    bargaining unit members who are not reasonably suspected of drug abuse and who
    are not in safety-sensitive positions.” The Union further clarified that, for purposes
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    of its as-applied challenge, it was “not challenging drug-testing of those in safety-
    sensitive positions.”
    In support of its motion, the State argued: (1) that the Union lacked standing;
    (2) that the Union could not succeed on what the State maintained was a facial
    challenge to the Executive Order; (3) that, on the merits, the EO was constitutional
    because individuals consented to the test; or, alternatively, (4) that the EO was
    constitutional because the State had a special need justifying suspicionless drug
    testing. In its special-needs analysis, the State offered its interest in a safe,
    productive, and efficient workplace as the primary need justifying the EO. The
    State expressly declined to specify which groups of employees presented
    heightened safety concerns, instead arguing generally that “even if safety concerns
    were the only permissible justification, the notion that only intoxicated employees
    with certain duties present a danger to others . . . is untenable.” Thus, according to
    the State, the proffered safety need applied across the board and to all employees:
    An employee need not drive a train, carry a gun, or interdict drugs to
    present a safety risk. Even a desk-bound clerk . . . may become violent
    with other employees or the public, may present a danger when
    driving a car in the workplace parking lot, or may exercise impaired
    judgment when encountering any of the myriad hazards that exist in
    the workplace environment . . . .
    The State also asserted that the privacy interests of state employees were
    diminished for several reasons. First, drug testing among private employers had
    become common. Second, Florida had a tradition of open government. Finally, the
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    policy was clearly announced, so employees could not have any expectation of
    privacy. As for the Union’s as-applied challenge, the State declined to meet it
    head-on. Instead, it argued only that the district court should reject the Union’s
    attempt to recast its pleadings because “prior to the about-face in its [o]pposition
    [to defendant’s motion for summary judgment], Plaintiff repeatedly relied on the
    solely facial nature of its claim.” According to the State, therefore, the district
    court should consider and reject only the Union’s facial challenge.
    D.
    On April 25, 2012, the district court granted summary judgment to the
    Union and, in turn, denied the State’s motion. After finding that the Union had
    standing to challenge the Executive Order, 1 the district court conducted the special-
    needs balancing test established in Skinner and weighed the State’s asserted public
    interests against the employees’ privacy interests. The district court first
    determined that the public interests asserted were “notably broad and general
    compared to the interests that the Supreme Court . . . held justify suspicionless
    drug testing.” The court then rejected the State’s assertion that state employees
    possessed a diminished privacy interest. The district court therefore concluded that
    the EO was unconstitutional.
    1
    Scott has not appealed the district court’s determination that the Union had standing to
    challenge the EO, and we are satisfied that the Union has standing to mount this challenge.
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    The district court turned to crafting the remedy. Although the State argued
    that the Union had mounted exclusively a facial challenge, the court pointed out
    that the Union had conceded that the Fourth Amendment permitted drug testing of
    state employees in safety-sensitive positions. However, the district court then
    characterized the Union’s challenge “as consistent with an ‘as-applied’ challenge .
    . . . [that] asserts at most that the EO cannot be constitutionally applied to any
    current employee at a covered agency.” (Emphasis added.) Accordingly, the
    district court granted far more sweeping relief than was consistent with the Union’s
    concession. The Court granted a declaratory judgment holding the EO
    unconstitutional and issued an injunction coextensive with that declaration, which
    barred drug testing of “both Union and non-Union employees . . . . currently
    employed at covered agencies” as of the date of the district court’s order. In short,
    the district court struck down the EO insofar as it covered all 85,000 current state
    employees. The only thing that the judgment and injunction did not address was
    the application of the EO to “pre-employment testing of non-current employees,” a
    group the district court labeled “prospective new hires,” and “the random testing of
    those hired after the issuance of the EO.”
    The State timely appealed.
    II.
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    Summary judgment is appropriate where “the movant shows that there is no
    genuine dispute as to any material fact and the movant is entitled to judgment as a
    matter of law.” Fed. R. Civ. P. 56(a). We review a district court’s grant of
    summary judgment de novo, viewing the facts and drawing all reasonable
    inferences in the light most favorable to the non-moving party. Moore ex rel.
    Moore v. Reese, 
    637 F.3d 1220
    , 1231 (11th Cir. 2011). We review the decision to
    grant a permanent injunction for abuse of discretion but review the district court’s
    underlying legal conclusions de novo. See Alabama v. Ctrs. for Medicare &
    Medicaid Servs., 
    674 F.3d 1241
    , 1244 n.2 (11th Cir. 2012).
    A.
    The parties first dispute whether the relief the district court granted in this
    case was facial or as-applied in nature. Although the boundary between these two
    forms of relief is not always clearly or easily demarcated, the district court’s
    decision to strike down the EO and enjoin its implementation as to all 85,000
    current employees has the essential characteristics of facial relief.
    From the outset, the Union mounted a facial challenge to the Executive
    Order. That much is apparent from the face of the complaint. We look to the scope
    of the relief requested to determine whether a challenge is facial or as-applied in
    nature. See Doe v. Reed, 
    130 S. Ct. 2811
    , 2817 (2010). The heart of the Union’s
    requested remedy was two-fold: first, that the district court broadly declare “that
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    Defendant’s Executive Order 11-58 is quashed because it violates the right of the
    people to be free from unreasonable searches, under the Fourth Amendment”; and,
    second, that the district court issue an injunction ordering “the Defendant [to]
    immediately direct all agencies and persons affected by Defendant’s Executive
    Order 11-58 to cease all drug-testing implemented in compliance with the order.”
    Compl. at 6-7 (emphasis added). There can be no doubt that this relief would be
    facial in nature. And, indeed, the Union expressly maintained that its challenge was
    facial prior to filing a motion for summary judgment.
    However, the Union began requesting both facial and as-applied relief at the
    summary-judgment stage. In requesting as-applied relief, the Union explained that
    it “challenge[d] only the new drug-testing regime that tests . . . those not suspected
    of drug abuse and those who don’t hold safety-sensitive jobs,” and that it was “not
    challenging drug-testing of those in safety-sensitive positions.” The Union
    identified the non-safety-sensitive category of employees to be roughly 60 percent
    of all employees covered by the EO.
    Insofar as the Union mounted a facial challenge to the Executive Order --
    and it surely did that -- it had to meet an especially demanding standard. “A facial
    challenge, as distinguished from an as-applied challenge, seeks to invalidate a
    statute or regulation itself.” United States v. Frandsen, 
    212 F.3d 1231
    , 1235 (11th
    Cir. 2000). “[W]hen a plaintiff mounts a facial challenge to a statute or regulation,
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    the plaintiff bears the burden of proving that the law could never be applied in a
    constitutional manner.” DA Mortg., Inc. v. City of Miami Beach, 
    486 F.3d 1254
    ,
    1262 (11th Cir. 2007). Put another way, “the challenger must establish that no set
    of circumstances exists under which the Act would be valid.” United States v.
    Salerno, 
    481 U.S. 739
    , 745 (1987). The Supreme Court reaffirmed Salerno’s
    validity as recently as 2010, see United States v. Stevens, 
    130 S. Ct. 1577
    , 1587
    (2010) (citing Salerno, 
    481 U.S. at 745
    ), and, just last year, a panel of this Court
    reiterated that the strict “no set of circumstances” test is the proper standard for
    evaluating a facial challenge. GeorgiaCarry.Org, Inc. v. Georgia, 
    687 F.3d 1244
    ,
    1255 & n.19 (11th Cir. 2012).
    Salerno also applies when a court grants relief that is quasi-facial in nature --
    that is, relief that reaches beyond the plaintiffs in a case. In Doe v. Reed, for
    instance, the Supreme Court considered a challenge that a state law violated the
    First Amendment when applied to referendum petitions. 130 S. Ct. at 2817. The
    Court noted that characterizing the challenge as either facial or as-applied was
    problematic because the challenge “obviously ha[d] characteristics of both: The
    claim [wa]s ‘as applied’ in the sense that it d[id] not seek to strike the PRA in all
    its applications, but only to the extent it covers referendum petitions. The claim
    [wa]s ‘facial’ in that it [wa]s not limited to plaintiffs’ particular case . . . .” Id.
    When a plaintiff brings this sort of quasi-facial challenge, “[t]he label is not what
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    matters.” Id. Where “an injunction . . . reach[es] beyond the particular
    circumstances of these plaintiffs,” it “must therefore satisfy [the Supreme Court’s]
    standards for a facial challenge to the extent of that reach.” Id.
    Prior to considering the propriety of the Union’s facial challenge, the district
    court correctly attempted to construe the Union’s complaint as making a more
    limited, as-applied challenge to the EO. The State objects that the district court
    could not have construed the Union’s suit as an as-applied challenge at all because
    the Union’s complaint requested only facial relief and the Union insisted during
    discovery that it was mounting a facial challenge. This objection is unconvincing.
    Ordinarily, it is true that, “[a]t the summary judgment stage, the proper procedure
    for plaintiffs to assert a new claim is to amend the complaint in accordance with
    Fed. R. Civ. P. 15(a). A plaintiff may not amend her complaint through argument
    in a brief opposing summary judgment” or one advocating summary judgment.
    Gilmour v. Gates, McDonald & Co., 
    382 F.3d 1312
    , 1315 (11th Cir. 2004). In this
    case, however, the Union was not stating a new claim, only clarifying the scope of
    its desired remedy. As the Supreme Court has explained, “the distinction between
    facial and as-applied challenges is not so well defined that it has some automatic
    effect or that it must always control the pleadings and disposition in every case
    involving a constitutional challenge. The distinction . . . goes to the breadth of the
    remedy employed by the Court, not what must be pleaded in a complaint.” Citizens
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    United v. Fed. Election Comm’n, 
    558 U.S. 310
    , 331 (2010); see Jacobs v. Fla. Bar,
    
    50 F.3d 901
    , 905 n.17 (11th Cir. 1995) (we are not bound by a party’s
    characterization of the complaint as facial, but rather look to whether “the
    complaint sets forth a cause of action for an as-applied challenge”).
    As a general matter, courts strongly disfavor facial challenges, and for good
    reason:
    Claims of facial invalidity often rest on speculation. As a
    consequence, they raise the risk of premature interpretation of statutes
    on the basis of factually barebones records. Facial challenges also run
    contrary to the fundamental principle of judicial restraint that courts
    should neither anticipate a question of constitutional law in advance of
    the necessity of deciding it nor formulate a rule of constitutional law
    broader than is required by the precise facts to which it is to be
    applied. Finally, facial challenges threaten to short circuit the
    democratic process by preventing laws embodying the will of the
    people from being implemented in a manner consistent with the
    Constitution.
    Wash. State Grange v. Wash. State Republican Party, 
    552 U.S. 442
    , 450-51 (2008)
    (citations and internal quotation marks omitted). Thus, courts construe a plaintiff’s
    challenge, if possible, to be as-applied. See Jacobs, 
    50 F.3d at
    905 n.17; see also
    Stupak-Thrall v. United States, 
    89 F.3d 1269
    , 1288 (6th Cir. 1996) (Boggs, J.,
    dissenting) (“[U]nless a plaintiff expressly disavows an ‘as-applied’ challenge, the
    complaint that a regulation is invalid should be construed, if possible, as an as-
    applied challenge.”).
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    However, despite explicitly saying that it was granting only as-applied relief,
    the district court in this case granted what effectively amounted to facial relief by
    declaring the Executive Order unconstitutional and enjoining its application to all
    85,000 current employees. As the district court itself acknowledged, the concession
    that transformed the lawsuit into an as-applied challenge was the Union’s
    admission that the Fourth Amendment permitted drug tests of state employees in
    safety-sensitive positions. Yet the district court did not follow that reasoning to its
    necessary conclusion, which was that the proper scope of the as-applied challenge -
    - and the scope of the relief that it could have granted based on the Union’s motion
    for summary judgment -- was limited to those employees not occupying safety-
    sensitive positions. Instead, the district court characterized the Union’s concession
    “as consistent with an ‘as-applied’ challenge . . . . [that] asserts at most that the EO
    cannot be constitutionally applied to any current employee at a covered agency.”
    (Emphasis added.) In doing so, the district court attached an as-applied label to
    what essentially amounted to a facial challenge concerning all 85,000 current state
    employees.
    This led the district court to grant both a declaratory judgment and a
    corresponding injunction that were too broad. In determining the scope of its relief,
    the court began by dividing the individuals subject to the EO into three groups: (1)
    employees at the covered agencies prior to the issuance of district court’s order; (2)
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    “prospective new hires,” which meant “individuals who are not currently employed
    at covered agencies”; and (3) employees at the covered agencies hired after the
    district court’s order. The district court then granted the Union declaratory
    judgment declaring the EO unconstitutional, and an injunction that mirrored the
    scope of that declaration, as to the first group. The court stated that its order left
    “unresolved” the question of the EO’s constitutionality with regard to the latter two
    groups, since “[t]he Union ma[de] no claims as to the constitutionality of the EO as
    it relates to pre-employment testing of non-current employees, or the random
    testing of those hired after the issuance of the EO.” This limitation, however, did
    not transform the district court’s relief from facial to as-applied.
    As we’ve said, the line between facial and as-applied relief is a fluid one,
    and many constitutional challenges may occupy an intermediate position on the
    spectrum between purely as-applied relief and complete facial invalidation. The
    Supreme Court itself has weighed challenges with both facial and as-applied
    characteristics, see, e.g., Doe, 
    130 S. Ct. at 2817
    , and perhaps the best
    understanding of constitutional challenges is that “[t]here is no single distinctive
    category of facial, as opposed to as-applied, litigation.” Richard H. Fallon, Jr., As-
    Applied and Facial Challenges and Third-Party Standing, 
    113 Harv. L. Rev. 1321
    ,
    1321 (2000). As both parties acknowledged at oral argument, the district court’s
    order has characteristics of both facial and as-applied relief. On the one hand, it
    20
    Case: 12-12908     Date Filed: 05/29/2013    Page: 21 of 61
    reaches far beyond the scope of the Union’s as-applied challenge and encompasses
    all current state employees. On the other hand, the district court did not invalidate
    the EO in its entirety.
    Nonetheless, we conclude that the district court granted what effectively
    amounted to facial relief -- or, at the very least, relief that had enough
    characteristics of facial relief to demand satisfaction of Salerno’s rigorous
    standard. The essential point is that the district court invalidated the EO across the
    board covering all 85,000 state employees, the overwhelming majority of those
    subject to the EO. The scope of the district court’s judgment is extremely broad
    and, notably, its relief was not limited in any way by the concession the Union
    itself made: “[O]n March 22, 2011 (the date of promulgation) there was at least
    one employee . . . who held a high-risk, safety-sensitive job, and was subject to EO
    11-58. And we admit that the Fourth Amendment does not bar the random drug
    testing of government employees in high-risk, safety-sensitive jobs.”
    Notwithstanding that concession, the district court’s judgment and injunction bar
    the State from testing that employee and, indeed, any other current employee who,
    for example, occupies a law enforcement position that requires carrying a firearm.
    Nor does the district court’s cutoff of the scope of its judgment and the
    accompanying injunction transform that relief into as-applied relief. The district
    court invalidated the Executive Order and enjoined its implementation as to the
    21
    Case: 12-12908        Date Filed: 05/29/2013        Page: 22 of 61
    vast majority of individuals covered by the EO. To be sure, the district court did
    not declare unconstitutional or enjoin the implementation of the entirety of the EO.
    But the district court’s decision not to cover pre-employment testing of prospective
    new hires does not alter our view that the relief it did grant was facial as to all
    85,000 current employees. If a statute has two distinct provisions, and a court
    strikes down one as unconstitutional (and indeed, one that covers so many
    employees), we would not say that the relief was as-applied simply because a part
    of the statute remains. Rather, we would say that, as to the provision the court
    struck down, the plaintiff obtained facial relief. See Doe, 
    130 S. Ct. at 2817
    . 2 Here,
    that is precisely what the Union received. Rather than conducting any kind of job-
    category-by-category inquiry, and narrowly tailoring its decision to the precise
    contours of the constitutional violation, the district court facially invalidated the
    provision of the Executive Order that provides “for random drug testing of all
    employees within each agency.”
    B.
    Having established that the district court granted facial relief, the essential
    question becomes whether that relief could meet Salerno’s demanding standard. To
    uphold the scope of the relief, we would have to be convinced that the State could
    2
    The alternative is untenable. If a challenge to a statute only became facial in nature when it
    attacked every provision within a statute, then any moderately clever drafter could insulate an
    unconstitutional statute from a facial challenge simply by adding a provision to the statute that
    was clearly constitutional.
    22
    Case: 12-12908     Date Filed: 05/29/2013    Page: 23 of 61
    never constitutionally require any of the 85,000 current state employees protected
    by the injunction to submit to a suspicionless drug test. But the answer, plainly, is
    that there are some (how many is unclear) current state employees as to whom
    suspicionless drug testing is constitutionally permissible. This conclusion
    ineluctably follows from the line of Supreme Court precedent beginning with
    Skinner, which held that the Fourth Amendment permits suspicionless drug testing
    of certain safety-sensitive categories of employees -- for instance, employees who
    operate or pilot large vehicles, or law enforcement officers who carry firearms in
    the course of duty.
    The Fourth Amendment protects “[t]he right of the people to be secure in
    their persons, houses, papers, and effects, against unreasonable searches and
    seizures,” U.S. Const. amend. IV, and applies to the states through the Due Process
    Clause of the Fourteenth Amendment. See City of Ontario v. Quon, 
    130 S. Ct. 2619
    , 2624 (2010). Testing a urine sample, which “can reveal a host of private
    medical facts about an employee,” and which entails a process that “itself
    implicates privacy interests,” is a search. Skinner, 
    489 U.S. at 617
    ; see also
    Chandler v. Miller, 
    520 U.S. 305
    , 313 (1997). The basic question we are required
    to answer when confronted with a drug-testing policy is whether this search is
    reasonable. Chandler, 
    520 U.S. at 313
    . While “[i]n the criminal context,
    reasonableness usually requires a showing of probable cause” to obtain a search
    23
    Case: 12-12908     Date Filed: 05/29/2013    Page: 24 of 61
    warrant, that standard is “unsuited to determining the reasonableness of
    administrative searches where the ‘Government seeks to prevent the development
    of hazardous conditions.’” Bd. of Educ. v. Earls, 
    536 U.S. 822
    , 828 (2002)
    (quoting Nat’l Treasury Emps. Union v. Von Raab, 
    489 U.S. 656
    , 667-68 (1989)).
    The default rule in this context, therefore, is that “[t]o be reasonable under
    the Fourth Amendment, a search ordinarily must be based on individualized
    suspicion of wrongdoing.” Chandler, 
    520 U.S. at 313
    . While individualized
    suspicion is the normal requirement, “particularized exceptions to the main rule are
    sometimes warranted based on ‘special needs, beyond the normal need for law
    enforcement.’” 
    Id.
     (quoting Skinner, 
    489 U.S. at 619
    ). When the government
    alleges that special needs justify this Fourth Amendment intrusion, “courts must
    undertake a context-specific inquiry, examining closely the competing private and
    public interests advanced by the parties.” Id. at 314. “In limited circumstances,
    where the privacy interests implicated by the search are minimal, and where an
    important governmental interest furthered by the intrusion would be placed in
    jeopardy by a requirement of individualized suspicion, a search may be reasonable
    despite the absence of such suspicion.” Skinner, 489 U.S. at 624.
    Therefore, the test we apply is a job-category-by-category balancing of “the
    individual’s privacy expectations against the Government’s interests,” Von Raab,
    
    489 U.S. at 665
    , with other relevant factors being “the character of the intrusion” --
    24
    Case: 12-12908     Date Filed: 05/29/2013    Page: 25 of 61
    particularly whether the collection method affords a modicum of privacy, see
    Vernonia Sch. Dist. 47J v. Acton, 
    515 U.S. 646
    , 658 (1995) -- and the efficacy of
    the testing regime, see Chandler, 
    520 U.S. at 319-20
    . At times, the Supreme Court
    has described the interests justifying suspicionless drug testing as “compelling.”
    See Von Raab, 
    489 U.S. at 670
    ; Skinner, 
    489 U.S. at 628
    . In Vernonia, the Court
    clarified that “[i]t is a mistake, however, to think that the phrase ‘compelling state
    interest,’ in the Fourth Amendment context, describes a fixed, minimum quantum
    of governmental concern,” and therefore we cannot “dispose of a case by
    answering in isolation the question: Is there a compelling state interest here?” 
    515 U.S. at 661
    . Rather, a compelling interest is one “important enough to justify the
    particular search at hand, in light of other factors that show the search to be
    relatively intrusive upon a genuine expectation of privacy.” 
    Id.
    The Supreme Court has had five occasions to evaluate suspicionless drug
    testing policies in the last twenty-five years. We therefore know the kinds of
    interests that are important enough to subject certain limited categories of
    individuals to suspicionless drug tests, and, moreover, we know that some of the
    85,000 current state employees fall within those categories. In Skinner, the
    Supreme Court established that the government has a compelling need to test
    railroad employees. In that case, the Federal Railroad Administration (“FRA”)
    required suspicionless drug testing of workers involved in railroad accidents. 489
    25
    Case: 12-12908      Date Filed: 05/29/2013    Page: 26 of 61
    U.S. at 606. As for the first factor in the balancing test, the FRA’s interest, the
    Court’s inquiry focused intently on the special characteristics of the railroad
    industry, where on-the-job intoxication was “a significant problem” that had
    resulted in “21 significant train accidents” in a ten-year period. Id. at 607. On the
    other side of the ledger, the Court reasoned that “the expectations of privacy of
    covered employees [we]re diminished by reason of their participation in an
    industry that is regulated pervasively to ensure safety.” Id. at 627. As the Court
    pointed out, railroad “employees ha[d] long been a principal focus of regulatory
    concern,” with various federal laws subjecting railroad employees’ physical fitness
    to testing and regulation. See id. at 627-28. The two other factors were the
    character of the intrusion and the efficacy of the policy. The FRA’s urine testing
    was not overly intrusive because it did not require direct observation, id. at 626,
    and testing was effective because it “deterr[ed] employees engaged in safety-
    sensitive tasks from using controlled substances or alcohol in the first place.” Id. at
    629; accord id. at 631-32. In light of these factors, most notably the serious risks to
    public safety implicated by this specific category of employees, the Court upheld
    the constitutionality of the FRA’s policy. See id. at 633. The principle we draw
    from Skinner is that government “employees . . . engaged in safety-sensitive
    tasks,” id. at 620, particularly those involved with the operation of heavy
    machinery or means of mass transit, may be subject to suspicionless drug testing.
    26
    Case: 12-12908     Date Filed: 05/29/2013    Page: 27 of 61
    In Von Raab, the Supreme Court identified several other job categories that
    a suspicionless drug testing policy may cover. At issue in that case was the United
    States Customs Service’s required urinalysis testing for three job categories: first,
    those directly involved in drug interdiction; second, those who carried firearms;
    and third, those who handled classified material. Id. at 660-61. The Court began by
    identifying the government’s special needs with regard to the first two categories.
    Id. at 668. Customs employees responsible for drug interdiction were “exposed to
    th[e] criminal element and to the controlled substances it s[ought] to smuggle into
    the country”; the Customs Service was concerned not only about those employees’
    “physical safety” but also the risk of bribery or corruption. See id. at 669. Thus, the
    Supreme Court found that “the Government ha[d] a compelling interest in ensuring
    that front-line interdiction personnel [we]re physically fit, and ha[d]
    unimpeachable integrity and judgment.” Id. at 670. Similar logic applied to those
    who carried firearms. Employees “who may use deadly force plainly discharge
    duties fraught with such risks of injury to others that even a momentary lapse of
    attention can have disastrous consequences.” Id. (internal quotation marks
    omitted).
    As for the privacy interests implicated by the search, the Supreme Court
    began by noting that “certain forms of public employment may diminish privacy
    expectations even with respect to such personal searches.” Id. at 671. The Court
    27
    Case: 12-12908     Date Filed: 05/29/2013    Page: 28 of 61
    explained that, “[u]nlike most private citizens or government employees in general,
    employees involved in drug interdiction reasonably should expect effective inquiry
    into their fitness and probity. Much the same is true of employees who are required
    to carry firearms.” Id. at 672. “Because successful performance of their duties
    depends uniquely on their judgment and dexterity, these employees cannot
    reasonably expect to keep from the Service personal information that bears directly
    on their fitness,” and thus their privacy could not “outweigh the Government’s
    compelling interests in safety and in the integrity of our borders.” Id.
    As for employees who handled classified information, however, the Court
    remanded. While noting that the protection of “truly sensitive information” is
    “compelling,” id. at 677, the Court questioned the Customs Service’s designation
    of several classes of employees -- for instance, baggage clerks and messengers --
    as belonging to this category. See id. at 678. Since the Court could not determine
    “whether the Service ha[d] defined this category of employees more broadly than
    is necessary,” it remanded for the lower courts to determine more precisely which
    employees truly dealt with sensitive information. See id.
    The Supreme Court next approved of suspicionless drug testing in a far
    different context than government employment: schools. The Court upheld the
    constitutionality of two schools’ policies of randomly drug testing student athletes,
    Vernonia, 
    515 U.S. at 648
    , and students participating in competitive extracurricular
    28
    Case: 12-12908     Date Filed: 05/29/2013    Page: 29 of 61
    activities, Earls, 
    536 U.S. at 825
    . The Supreme Court found that there was a special
    need in the public school context, where teachers were responsible for their young
    charges. See Vernonia, 
    515 U.S. at 661
     (“Deterring drug use by our Nation’s
    schoolchildren is at least as important as enhancing efficient enforcement of the
    Nation’s laws against the importation of drugs . . . or deterring drug use by
    engineers and trainmen . . . .”); Earls, 
    536 U.S. at 829
    . As for the students’ privacy
    interests, the Court noted that the students by definition were “(1) children, who (2)
    have been committed to the temporary custody of the State as schoolmaster.”
    Vernonia, 
    515 U.S. at 654
    . The State, acting in loco parentis, exercised “a degree
    of supervision and control that could not be exercised over free adults.” 
    Id. at 655
    ;
    see Earls, 
    536 U.S. at 831
    . Those diminished privacy interests could not overcome
    the government’s important interests in protecting children from drug use. See
    Vernonia, 
    515 U.S. at 665
    ; Earls, 
    536 U.S. at 838
    .
    In contrast to the preceding cases, the Supreme Court rejected a Georgia
    statute that required all candidates for certain state offices to submit to a drug test
    at a time of their choosing prior to the election. See Chandler, 
    520 U.S. at 309-10
    .
    Georgia attempted to justify its policy based on “the incompatibility of unlawful
    drug use with holding high state office,” contending that illegal drug use “draws
    into question an official’s judgment and integrity” and “jeopardizes the discharge
    of public functions.” 
    Id. at 318
    . The Court dismissed these broad and general
    29
    Case: 12-12908     Date Filed: 05/29/2013    Page: 30 of 61
    rationales, finding “[n]otably lacking . . . any indication of a concrete danger
    demanding departure from the Fourth Amendment’s main rule.” 
    Id. at 318-19
    .
    Unlike the railroad employees in Skinner or the law enforcement officers in Von
    Raab, “th[e Georgia] officials typically d[id] not perform high-risk, safety-sensitive
    tasks, and the required certification immediately aid[ed] no interdiction effort.” 
    Id. at 321-22
    . Worse still, Georgia’s testing program was not even well-crafted to
    detect drug use, since the candidates themselves scheduled the drug test and could
    easily evade a positive result. 
    Id. at 319-20
    . The Supreme Court therefore had little
    trouble declaring this policy unconstitutional.
    Although this Court recently has addressed the constitutionality of
    suspicionless drug testing in a different context, see Lebron v. Sec’y, Fla. Dep’t of
    Children & Families, 
    710 F.3d 1202
    , 1218 (11th Cir. 2013) (affirming a
    preliminary injunction barring suspicionless testing of welfare recipients), we have
    not considered the propriety of testing current or potential government employees
    since Chandler v. Miller, 
    73 F.3d 1543
     (11th Cir. 1996), rev’d, 
    520 U.S. 305
    . Our
    sister circuits, however, have confronted a wide variety of drug testing policies and
    have identified several other safety-sensitive job categories. In cases similar to
    Skinner, the courts of appeals have upheld suspicionless drug testing of categories
    of employees whose work involves heavy machinery or the operation of large
    vehicles, such as planes, trains, buses, or boats. Thus, although Skinner itself
    30
    Case: 12-12908    Date Filed: 05/29/2013    Page: 31 of 61
    addressed railroad employees, the courts of appeals have extended its logic to those
    involved in the operation of aircraft. See, e.g., Bluestein v. Skinner, 
    908 F.2d 451
    ,
    457 (9th Cir. 1990); Nat’l Fed’n of Fed. Emps. v. Cheney, 
    884 F.2d 603
    , 610-11
    (D.C. Cir. 1989). Another category -- a natural extension of the Supreme Court’s
    holding in Von Raab -- encompasses police officers, see Carroll v. City of
    Westminster, 
    233 F.3d 208
    , 213 (4th Cir. 2000), correctional officers who interact
    with parolees or inmates in a prison, see Int’l Union v. Winters, 
    385 F.3d 1003
    ,
    1013 (6th Cir. 2004), and firefighters, see Hatley v. Dep’t of the Navy, 
    164 F.3d 602
    , 604 (Fed. Cir. 1998).
    The crucial point is that, to affirm the district court’s declaration and
    injunction in this case, we would have to find that none of the 85,000 current
    employees covered by the district court’s relief belong to the special-needs
    categories identified by the Supreme Court. However, the Union’s own
    submissions belie this. Indeed, the Union itself observed that, “[o]f the
    approximately 85,000 employees in 2010, 33,052 of them . . . served in arguably
    safety-sensitive positions.” More precisely, during discovery, the Union asked the
    State to identify:
    • “How many employees affected by EO 11-58 regularly carry firearms on the
    job?” (Interrogatory 16)
    • “How many employees affected by EO 11-58 are sworn law enforcement
    officers?” (Interrogatory 17)
    31
    Case: 12-12908     Date Filed: 05/29/2013    Page: 32 of 61
    • “How many employees affected by . . . EO 11-58 regularly interact on the
    job with detainees in the correctional system?” (Interrogatory 18)
    • “How many employees affected by EO 11-58 regularly interact on the job
    with primary or secondary school students?” (Interrogatory 19)
    • “How many employees affected by EO 11-58 regularly work as mass transit
    operators?” (Interrogatory 20)
    • “How many employees affected by EO 11-58 regularly work as
    transportation safety inspectors?” (Interrogatory 21)
    The State provided fairly detailed figures in its responses, including, for example,
    the following categories of employees who carry firearms: 157 employees in the
    Department of Business & Professional Regulation, 146 inspectors in the
    Department of Corrections (along with another 1,088 employees who were
    authorized but not required to carry firearms), 136 employees in the Department of
    Environmental Protection, and 23 in the Department of Military Affairs. Based on
    the holding in Von Raab, it is apparent that, at least as to these employees, the EO
    is very likely constitutionally applicable. The State further identified several
    distinct categories of employees who operate heavy machinery or large vehicles,
    with almost a thousand working for the Department of Transportation alone.
    Skinner makes it likely that the State also may subject these, or at least some of
    these, employees to suspicionless drug testing. Yet by extending the declaratory
    judgment and injunction to all current employees, the district court effectively
    32
    Case: 12-12908      Date Filed: 05/29/2013    Page: 33 of 61
    disregarded these portions of the record and barred testing of the safety-sensitive
    employees included among the 85,000 current employees.
    Under Salerno, the EO could not possibly be unconstitutional as to all
    current employees, and the district court’s order therefore cannot “satisfy [the
    Supreme Court’s] standards for a facial challenge to the extent of [the order’s]
    reach.” Doe, 130 S. Ct. at 2817. Since it is well-settled that a district court abuses
    its discretion when it grants relief that is improperly or even unnecessarily broad,
    see Alley v. U.S. Dep’t of Health & Human Servs., 
    590 F.3d 1195
    , 1205 (11th Cir.
    2009), we vacate and remand the judgment and the injunction for the district court
    to more precisely tailor its relief to the extent the Executive Order may be
    unconstitutional.
    Nonetheless, the Union maintains that the scope of the injunction was proper
    anyhow and fell well within the district court’s broad discretion. In fact, the Union
    continues to assert that the court “was also within its discretion to award facial
    relief” because the Union had demonstrated that no set of circumstances exists
    under which the EO would be valid. This places the Union’s arguments in palpable
    tension. On the one hand, it concedes that suspicionless drug testing of safety-
    sensitive employees would be constitutional. On the other hand, it maintains that
    the EO is facially unconstitutional.
    33
    Case: 12-12908       Date Filed: 05/29/2013      Page: 34 of 61
    The way that the Union squares the circle is by misapplying Salerno’s “no
    set of circumstances” test. According to the Union, the Executive Order requires
    suspicionless drug testing of all employees, and “there are no circumstances in
    which suspicionless drug testing of all employees and applicants would be
    constitutional.” Therefore, the EO fails across the board. Under the Union’s
    interpretation of Salerno’s test, a single application of the EO means its application
    to all employees. But under Salerno and our precedents, see, e.g., Harris v.
    Mexican Specialty Foods, Inc., 
    564 F.3d 1301
    , 1313 (11th Cir. 2009) (“Th[e] mere
    possibility of a constitutional application is enough to defeat a facial challenge to
    [a] statute.”), a single “application” of the EO must mean the suspicionless drug
    test of a single employee. The EO is facially valid, in other words, if the Fourth
    Amendment permits at least one covered employee to be tested. The Union’s
    position completely inverts Salerno and renders a facial attack, far from being the
    “most difficult” of challenges, 
    481 U.S. at 745
    , the easiest to make. To prevail
    under the Union’s version of Salerno, the Union needs to show only one employee
    as to whom suspicionless drug testing is unconstitutional. Then, it would follow,
    the EO is unconstitutional as a whole because there is no way that testing of all
    employees is constitutional.3 Under the correct understanding of Salerno, we are
    3
    The Union cites only one case in support of this understanding of facial challenges: Baron v.
    City of Hollywood, 
    93 F. Supp. 2d 1337
     (S.D. Fla. 2000). The district court in Baron accepted an
    argument essentially identical to the one the Union makes in this case, see 
    id. at 1339
    , and
    34
    Case: 12-12908       Date Filed: 05/29/2013       Page: 35 of 61
    compelled to conclude that the EO is not facially invalid since safety-sensitive
    employees may be subjected to suspicionless drug testing.
    The Union offers another argument: that the district court was required to
    facially invalidate the EO because otherwise the court would have been “put in the
    untenable position of having to rewrite” it. The Union claims that the Supreme
    Court’s case law cautions against partial invalidation and cites Ayotte v. Planned
    Parenthood of N. New England, 
    546 U.S. 320
     (2006). Ayotte, however, hardly
    supports this proposition. As the Supreme Court stated in that case, “the ‘normal
    rule’ is that ‘partial, rather than facial, invalidation is the required course,’ such
    that a ‘statute may . . . be declared invalid to the extent that it reaches too far, but
    otherwise left intact.’” 
    Id. at 329
     (quoting Brockett v. Spokane Arcades, Inc., 
    472 U.S. 491
    , 504 (1985)). In Sabri v. United States, the Court identified the “few
    settings” in which it had “recognized the validity of facial attacks alleging
    overbreadth (though not necessarily using that term)”: free speech, the right to
    travel, abortion rights (the category to which Ayotte itself belongs), and legislation
    under § 5 of the Fourteenth Amendment. 
    541 U.S. 600
    , 609-10 (2004). As the
    facially invalidated a suspicionless drug testing policy when the city could not justify its
    application as to all employees, id. at 1342. In the first place, Baron has no precedential value.
    Second, Baron makes the same mistake we have identified in the Union’s argument. It implicitly
    defines the application of a drug testing policy as the testing of all employees, rather than the
    testing of one employee. As the Ninth Circuit has explained in rejecting an argument that relied
    upon Baron, this mistake “would turn Salerno on its head.” See Lanier v. City of Woodburn, 
    518 F.3d 1147
    , 1150 (9th Cir. 2008).
    35
    Case: 12-12908     Date Filed: 05/29/2013   Page: 36 of 61
    Court put it, “[o]utside these limited settings, and absent a good reason, we do not
    extend an invitation to bring overbreadth claims.” Id. at 610. The Supreme Court
    has not sanctioned this type of facial invalidation in the Fourth Amendment
    context, and we can discern no basis to do so here.
    C.
    As a fallback position, the Union suggests that we could refashion the
    judgment and injunction simply by cutting them down to cover only those
    categories of employees as to whom the Executive Order’s application is
    unconstitutional. While an appellate court undoubtedly has the power to modify
    injunctions, see United States v. Nat’l Treasury Emps. Union, 
    513 U.S. 454
    , 480
    (1995), or to affirm a judgment as to some plaintiffs but not others, see Allen v.
    Bd. of Pub. Educ., 
    495 F.3d 1306
    , 1320 (11th Cir. 2007), we decline to do so
    because the sort of fact-intensive line-drawing required is a task that properly
    belongs to the district court. Unlike the typical case where we may affirm a
    judgment as to some plaintiffs but not as to others, we are dealing here not with a
    manageable number of individual plaintiffs but with a current workforce of some
    85,000 state employees. Nor is the district court’s order as amenable to
    modification as the injunction in Nat’l Treasury Emps. Union, which the Supreme
    Court altered solely to exclude non-plaintiffs. In sharp contrast, in order to modify
    the judgment and injunction before us, we would be required to “differentiate[]
    36
    Case: 12-12908      Date Filed: 05/29/2013    Page: 37 of 61
    between job categories designated for testing,” scrutinize the State’s rationale for
    testing each job category, and “conduct[] the balancing test” laid out in Skinner
    and its progeny. See Nat’l Fed’n of Fed. Emps. v. Vilsack, 
    681 F.3d 483
    , 489
    (D.C. Cir. 2012). As it currently stands, the district court’s order does not break
    down the covered employees on a job-category-by-category basis, which leaves us
    with little basis for determining which portions of the declaratory judgment and the
    injunction are proper. Thus, while we could simply enjoin the EO as to all
    employees except those in certain safety-sensitive job categories -- those who carry
    firearms in the course of law-enforcement duties, for instance, or those who
    operate heavy machinery -- and end up probably being right, we would be
    pronouncing the law without really knowing the facts. Cf. United States v. Banks,
    
    347 F.3d 1266
    , 1271-72 (11th Cir. 2003).
    Although the Union did divide the covered employees at least into an
    “arguably” safety-sensitive group (encompassing roughly 40 percent of all covered
    employees) and a non-safety-sensitive group, we understand that the Union’s
    position is that some of the employees in the arguably safety-sensitive group
    actually are not subject to suspicionless testing, while the State’s position is that
    some employees in the non-safety-sensitive group are subject to suspicionless
    testing. Thus, for instance, the State included all employees at the Department of
    Corrections within its answer to the Union’s interrogatories. The Union will
    37
    Case: 12-12908     Date Filed: 05/29/2013     Page: 38 of 61
    undoubtedly contest whether some categories of DOC employees should be
    included within the safety-sensitive category. Meanwhile, the State may be able to
    identify job categories that the Union has labeled non-safety-sensitive but that
    actually present real, substantial, and immediate threats to public safety. The
    Union’s interrogatories, for instance, never asked about the number of doctors or
    medical personnel employed by the State. Yet some courts of appeals have held
    that government-employed medical residents or emergency medical technicians are
    safety-sensitive employees. See Pierce v. Smith, 
    117 F.3d 866
    , 874 (5th Cir. 1997);
    Piroglu v. Coleman, 
    25 F.3d 1098
    , 1102 (D.C. Cir. 1994). In light of the wholly
    undefined nature of the non-safety-sensitive group, and the fact that the current
    division was found only in the submission of one party in an answer to some
    interrogatories rather than in the district court’s own finding, we are convinced that
    determining the proper composition of those groups is a task best left to the district
    court in the first instance. In order for the district court to accomplish this task, the
    parties must provide the court with more extensive, job-category-specific facts than
    the record currently contains. It is difficult to imagine how this category-specific
    balancing task can be accomplished without additional discovery.
    Thus, we vacate and remand both the declaratory judgment and the
    corresponding injunction in order for the district court to conduct further
    38
    Case: 12-12908     Date Filed: 05/29/2013    Page: 39 of 61
    factfinding and to recraft its relief to cover only those groups as to which the
    Executive Order’s application is unconstitutional.
    III.
    The State does not ask us merely to vacate and remand; boldly, it urges us to
    reverse the denial of its summary judgment motion and to direct the district court
    to grant judgment in its favor. The State argues that there is no need for the district
    court to conduct the very job-category-by-category balancing that the Supreme
    Court’s case law commands. Instead, the State offers several reasons that, it
    claims, can justify suspicionless drug testing of all 85,000 government employees
    regardless of the nature of their specific job functions. Based on these generic
    reasons, the State asks us to approve a testing policy of unprecedented scope. We
    are unpersuaded.
    The State’s arguments, which are stated so abstractly, cannot satisfy the
    special-needs balancing test laid out in Skinner and its progeny. Those cases
    conducted the special-needs balancing test not at a high order of generality but in a
    fact-intensive manner that paid due consideration to the characteristics of a
    particular job category (e.g., the degree of risk that mistakes on the job pose to
    public safety), the important privacy interests at stake, and other context-specific
    concerns (e.g., evidence of a preexisting drug problem). The State’s arguments
    have not convinced us that Skinner and its progeny are inapplicable, nor can they
    39
    Case: 12-12908      Date Filed: 05/29/2013    Page: 40 of 61
    obviate the need for job-category-by-category scrutiny. Just as we know that some
    subset of state employees almost certainly can be tested due to specific, important
    safety concerns, we know that there are some employees who almost certainly
    cannot be tested without individualized suspicion. Again, the problem is that the
    factual record is almost barren, and the balancing calculus required by Supreme
    Court case law cannot be exercised in a vacuum.
    A.
    The State’s first justification is that employees have consented to testing by
    submitting to the testing requirement rather than quitting their jobs, and that this
    consent renders the Executive Order’s search reasonable and hence constitutional.
    In effect, the State is offering its employees this Hobson’s choice: either they
    relinquish their Fourth Amendment rights and produce a urine sample which
    carries the potential for termination, or they accept termination immediately.
    Moreover, rather than treating this exacted consent as part of the special-needs
    balancing test, the State instead argues that this consent, standing alone, justifies
    suspicionless drug testing.
    To begin with, we do not agree that employees’ submission to drug testing,
    on pain of termination, constitutes consent under governing Supreme Court case
    law. See Lebron, 710 F.3d at 1214-15. Although a “search conducted pursuant to a
    valid consent is constitutionally permissible,” Schneckloth v. Bustamonte, 412
    40
    Case: 12-12908     Date Filed: 05/29/2013    Page: 41 of 
    61 U.S. 218
    , 222 (1973), consent must be “in fact voluntarily given, and not the result
    of duress or coercion, express or implied.” 
    Id. at 248
    ; see also Bumper v. North
    Carolina, 
    391 U.S. 543
    , 548 (1968); Johnson v. United States, 
    333 U.S. 10
    , 13
    (1948) (consent invalid when “granted in submission to authority rather than as an
    understanding and intentional waiver of a constitutional right”). Employees who
    must submit to a drug test or be fired are hardly acting voluntarily, free of either
    express or implied duress and coercion. See Bostic v. McClendon, 
    650 F. Supp. 245
    , 249 (N.D. Ga. 1986); cf. Garrity v. New Jersey, 
    385 U.S. 493
    , 497-98 (1967)
    (holding that the government cannot require its employees to relinquish their Fifth
    Amendment rights on pain of termination because “[t]he option to lose their means
    of livelihood or to pay the penalty of self-incrimination” was “the antithesis of free
    choice”).
    Moreover, consent has already been adequately incorporated into the
    special-needs balancing test, which obliges us to evaluate whether an employee’s
    choice of profession necessarily diminishes her expectation of privacy. In Skinner,
    the Court weighed the railroad employees’ “participation in an industry that is
    regulated pervasively to ensure safety,” 489 U.S. at 627, as a factor militating in
    favor of drug testing. In Von Raab, the Court explained that employees’ choice of
    “certain forms of public employment may diminish privacy expectations even with
    respect to . . . personal searches.” 489 U.S. at 671. For instance, “[e]mployees of
    41
    Case: 12-12908     Date Filed: 05/29/2013    Page: 42 of 61
    the United States Mint . . . should expect to be subject to certain routine personal
    searches when they leave the workplace every day.” Id. Finally, the Court echoed
    this view of consent in Vernonia, in which the student athletes and their parents
    had signed explicit consent forms granting the school the right to test the athletes.
    See 
    515 U.S. at 650
    . Nonetheless, the Court did not treat this factor as dispositive.
    Instead, as the Court saw it, the athletes’ choice to participate was a choice to
    “voluntarily subject themselves to a degree of regulation even higher than that
    imposed on students generally,” and amounted to “an additional respect in which
    school athletes have a reduced expectation of privacy.” 
    Id. at 657
     (emphasis
    added). Thus, there seems to be no way to square Skinner and its progeny with the
    argument that consent justifies the Executive Order’s drug testing requirement.
    This Court’s recent decision in Lebron rejected a similar argument that
    welfare recipients had consented to suspicionless drug testing when the State
    required testing as a precondition to the receipt of their benefits. As the panel in
    Lebron put it, a welfare recipient’s “mandatory ‘consent’” was of no
    “constitutional significance” because it was a “‘submission to authority rather than
    . . . an understanding and intentional waiver of a constitutional right.’” 710 F.3d at
    1214-15 (quoting Johnson, 
    333 U.S. at 13
    ). The panel in Lebron also canvassed the
    suspicionless drug testing cases and concluded that, to the extent consent was
    relevant, it had already been incorporated into the balancing calculus. While the
    42
    Case: 12-12908        Date Filed: 05/29/2013        Page: 43 of 61
    context in Lebron was different because the State sought to test a population of
    private citizens, which implicates somewhat different privacy concerns, the panel’s
    logic and reasoning are fairly applicable to these circumstances. As the panel in
    Lebron explained, every time the Supreme Court has addressed a suspicionless
    drug testing policy -- whether those tested were private citizens or government
    employees -- it has analyzed the issue through the prism of Skinner’s special-needs
    balancing test. See id. at 1215. Surrendering to drug testing in order to remain
    eligible for a government benefit such as employment or welfare, whatever else it
    is, is not the type of consent that automatically renders a search reasonable as a
    matter of law.4
    4
    The State cites several cases that, it claims, compel us to conclude that this exaction of consent
    renders suspicionless drug testing reasonable notwithstanding Skinner and its progeny or our
    recent pronouncement in Lebron. Those cases are all readily distinguishable.
    In Wyman v. James, the Supreme Court addressed whether a welfare beneficiary could
    refuse a caseworker home visit that was a requirement of receiving her benefits. 
    400 U.S. 309
    ,
    310 (1971). James argued that the visitation requirement violated her Fourth Amendment rights,
    but the Supreme Court ultimately held that there was no Fourth Amendment violation because
    the caseworker visit was not a search. See 
    id. at 317
    . Since the Wyman Court held the visit not to
    be a search, while the Supreme Court has repeatedly and squarely held that a drug test is a
    search, see, e.g., Vernonia, 
    515 U.S. at 652
    , Wyman is inapposite.
    United States v. Sihler concerned a warrantless search by prison officials of a guard who
    had smuggled drugs into the prison. 
    562 F.2d 349
    , 350 (5th Cir. 1977). The prison had a
    prominent sign that stated, “All persons entering upon these confines are subject to routine
    searches of their person, property or packages.” 
    Id.
     The Fifth Circuit held that “Sihler voluntarily
    accepted and continued an employment which subjected him to search on a routine basis,” and,
    therefore, “the search . . . was made with his consent.” 
    Id. at 351
    . Notably, Sihler preceded
    Skinner and its progeny. Nevertheless, Sihler is consistent with those cases because it dealt with
    a specific, safety-sensitive context -- a federal penitentiary. Much like “[e]mployees of the
    United States Mint . . . should expect to be subject to certain routine personal searches when they
    leave the workplace,” Von Raab, 
    489 U.S. at 671
    , a prison guard may fairly expect to be
    43
    Case: 12-12908        Date Filed: 05/29/2013       Page: 44 of 61
    Indeed, at least one court of appeals has rejected a similar argument to the
    one that the State has made here. In McDonell v. Hunter, a case decided even
    before Skinner and its progeny lent further support to our position, the Eighth
    Circuit squarely rejected the idea that “employees who signed consent forms have
    no legitimate expectation of privacy.” See 
    809 F.2d 1302
    , 1310 (8th Cir. 1987). “If
    a search is unreasonable, a government employer cannot require that its employees
    consent to that search as a condition of employment.” 
    Id.
     (citing Pickering v. Bd.
    of Educ., 
    391 U.S. 563
    , 568 (1968)); see also United Teachers of New Orleans v.
    Orleans Parish Sch. Bd., 
    142 F.3d 853
    , 856-57 (5th Cir. 1998). The courts of
    appeals have also applied the special-needs balancing test, rather than treating
    consent as the sole determinant of a policy’s constitutionality, in cases where the
    searched for contraband at work. Sihler cannot and does not stand for the far-reaching
    proposition that all 85,000 state employees have consented to drug testing simply by coming to
    work.
    Finally, the State cites a Third Circuit case, Kerns v. Chalfont-New Britain Twp. Joint
    Sewage Auth., where the plaintiff applied for a job that required a pre-employment drug test. 
    263 F.3d 61
    , 64 (3d Cir. 2001). The plant hired him on a probationary basis after he failed one drug
    test but passed a second. See 
    id.
     Later, when asked to submit to a third test, Kerns did so, failed
    again, and was fired. 
    Id. at 64-65
    . Kerns sued, alleging that the plant violated his Fourth
    Amendment rights. The district court granted the township summary judgment after finding that
    Kerns had consented to the test. See 
    id. at 65
    . The Third Circuit reviewed that factual finding for
    clear error and affirmed because the record provided some evidence to support the finding that
    Kerns had consented to the test. 
    Id. at 65-66
    .
    Kerns cannot support the State’s sweeping argument that all current employees consent to
    drug testing simply by choosing to remain employed. Kerns turned on a factual finding of
    consent in an individual case, which the Third Circuit reviewed for clear error. In this case, the
    State asks us to rule that, as a matter of law, all of its employees consent to drug testing by
    simply choosing to remain employed in their current position. Nothing we have read sustains this
    argument.
    44
    Case: 12-12908     Date Filed: 05/29/2013    Page: 45 of 61
    government attempted to compel consent to drug testing as a condition for
    obtaining some privilege. See, e.g., Joy v. Penn-Harris-Madison Sch. Corp., 
    212 F.3d 1052
    , 1055 (7th Cir. 2000); 
    id. at 1067
     (upholding a policy insofar as it
    provided for alcohol testing of student drivers but striking it down insofar as it
    provided for nicotine testing, despite the fact that student drivers signed consent
    forms authorizing both).
    In short, the State’s consent argument cannot, standing alone, render the EO
    constitutional.
    B.
    Next, the State argues, again at a high order of abstraction, that the
    Executive Order is constitutional under Skinner’s special-needs balancing test
    because the need for a safe and efficient workplace necessarily outweighs state
    employees’ expectations of privacy. This argument, however, does not entitle the
    State to summary judgment. The State’s abstract reasons do not fit within the
    narrow scope that the Supreme Court has given to the special-needs exception and,
    therefore, cannot justify testing every category of employee covered by the EO.
    Indeed, if those reasons could suffice, then there would never be any need to
    balance anything or consider any job-category-specific rationales.
    We repeat that individualized suspicion is the normal requirement in this
    context, and the special-needs cases are only “particularized exceptions to the main
    45
    Case: 12-12908     Date Filed: 05/29/2013    Page: 46 of 61
    rule.” See Chandler, 
    520 U.S. at 313
    . To the extent the State’s justifications hinge
    on drug-related productivity loss and other expenses, such as medical care, they are
    insufficient. Although at oral argument, counsel suggested that the State’s need to
    maintain an orderly and efficient workplace is enough of a special need to justify
    suspicionless testing, the authority cited -- O’Connor v. Ortega, 
    480 U.S. 709
    (1987) -- cannot sustain this proposition. O’Connor held only that, in the
    workplace context, the “need for supervision, control, and the efficient operation of
    the workplace” meant that a workplace search was not subject to the warrant or
    probable-cause requirements. See 
    id. at 720-26
    . O’Connor neither held nor
    remotely suggested that the need for an efficient workplace could justify searches
    without individualized suspicion.
    The only employment-related rationales that the Supreme Court has
    endorsed as being sufficient to justify suspicionless drug testing are a “substantial
    and real” risk to public safety or direct involvement in drug interdiction functions.
    Chandler, 
    520 U.S. at 323
    ; see also Von Raab, 
    489 U.S. at 670
    . Indeed, if safety is
    the justification, then public safety must be “genuinely in jeopardy,” Chandler, 
    520 U.S. at 323
    ; see also Lanier v. City of Woodburn, 
    518 F.3d 1147
    , 1151-52 (9th Cir.
    2008). Notably, in Chandler, the Court summed up the principle undergirding this
    line of precedent:
    [W]here the risk to public safety is substantial and real, blanket
    suspicionless searches calibrated to the risk may rank as ‘reasonable’ -
    46
    Case: 12-12908      Date Filed: 05/29/2013    Page: 47 of 61
    - for example, searches now routine at airports and at entrances to
    courts and other office buildings. But where . . . public safety is not
    genuinely in jeopardy, the Fourth Amendment precludes the
    suspicionless search, no matter how conveniently arranged.
    
    520 U.S. at 323
     (citation omitted).
    The State’s safety argument, at least in its current, global form, is
    insufficient. The State does not advance specific concerns relating to particular job
    categories and instead asserts only a broad concern for safety that applies to all
    employees. But we have little doubt that a clerk, for example, cannot be subject to
    suspicionless drug testing under the theory that she presents some vague and
    indefinite safety risk. In comparison, the safety risks that justified suspicionless
    drug testing regimes in Skinner and its progeny were far more pressing. In Skinner,
    railroad accidents had led to 25 deaths, 61 non-fatal injuries, and extensive
    property loss. See 489 U.S. at 607. In Von Raab, the concern was with law
    enforcement officers who carried firearms. See 489 U.S. at 671. Here, the State
    offers the hypothetical examples of an office employee “present[ing] a danger
    when driving a car in the workplace parking lot” or falling prey to “the myriad
    hazards that exist in the workplace environment (from stacks of heavy boxes, to
    high stair cases, to files on high shelves, to wet floors, to elevators and
    escalators).” We reject the idea that a stack of heavy boxes or a wet floor falls
    within the same ballpark of risk as the operation of a ten-thousand-ton freight train
    or the danger posed by a person carrying a firearm.
    47
    Case: 12-12908     Date Filed: 05/29/2013    Page: 48 of 61
    As the Supreme Court did in Chandler, the courts of appeals consistently
    have rejected testing policies that the government justified based only on
    generalized and indefinite safety concerns. Those cases underscore that, “where the
    government asserts ‘special needs’ for intruding on Fourth Amendment rights, . . .
    the specific context matters.” Vilsack, 681 F.3d at 492. “[T]he governmental
    concern in the general ‘integrity of its workforce’ [i]s insufficiently important to
    warrant random drug testing . . . .” Id. at 491-92. Thus, in Vilsack, the D.C. Circuit
    rejected a random drug testing policy that covered all Forest Service Job Corps
    Center employees. Id. at 499. Similarly, in Lanier, the Ninth Circuit prohibited the
    application of a city’s drug-testing policy to a library page. See 
    518 F.3d at 1152
    .
    As the panel in Lanier explained, “the need for suspicionless testing must be far
    more specific and substantial than the generalized existence of a societal [drug]
    problem.” 
    Id. at 1150
    .
    Indeed, if the State’s rationale sufficed to justify suspicionless drug testing,
    then the exception would swallow the rule and render meaningless Von Raab’s
    distinction between those employees for whom physical fitness, mental sharpness,
    and dexterity are paramount and “government employees in general.” 489 U.S. at
    672. Since the State’s generic justifications could apply to all government
    employees in any context, there would be nothing left of the individualized-
    48
    Case: 12-12908      Date Filed: 05/29/2013    Page: 49 of 61
    suspicion requirement in any type of government employment, and no interests to
    balance.
    Nor does the State shore up its case for across-the-board, suspicionless drug
    testing with evidence of a preexisting drug problem. Although the State does not
    need to present evidence of a drug problem in the group it seeks to test, see Von
    Raab, 
    489 U.S. at 674-75
    , a showing of an existing problem “would shore up an
    assertion of special need,” Chandler, 
    520 U.S. at 319
    . The problem with the State’s
    evidence is that some of it is too broad to be of any use, and the rest is too specific
    to justify the breadth of the testing regime the EO mandates. The bulk of the
    evidence canvasses the prevalence and harms of drug use in the general population.
    But Supreme Court case law contemplates a more targeted showing of drug abuse
    in the group to be tested, not people as a whole. In Skinner, for instance, the
    Federal Railroad Administration identified a score of drug or alcohol-related train
    accidents, and industry participants admitted that there was a serious drug problem
    among railroad workers. 489 U.S. at 607-08. The State’s evidence is so general
    that, if accepted as evidence of a drug problem among state employees, it would
    have to be accepted in every other government employment context.
    On the other hand, the relevant data the State presents is too narrow to
    justify the EO. First of all, the evidence actually suggests that drug use is a
    relatively small problem in the three departments already subject to random testing
    49
    Case: 12-12908      Date Filed: 05/29/2013    Page: 50 of 61
    prior to the EO’s issuance. The worst result the State obtained was when 2.5
    percent of DOC employees tested positive in 2011. This hardly demonstrates the
    existence of a serious drug problem. In fact, as the State itself submitted, a 2010
    national survey indicated that 8.4 percent of full-time employees nationwide were
    illicit-drug users. If anything, then, the results of the State’s random testing reveals
    that there is substantially less of a drug problem among state employees than
    among the general working population as a whole. Cf. Lebron, 710 F.3d at 1211
    n.6 (evidence showed that Florida Temporary Assistance for Needy Families
    recipients tested positive at a 5.1 percent rate, which “was lower than had been
    reported in other national studies of welfare recipients”).
    There is still another problem with the State’s submissions. The data, even
    assuming it did indicate a drug problem among employees at DOC, DOT, and DJJ,
    does not demonstrate the prevalence of drug abuse in other state agencies. Thus,
    even if those results could bolster a case for testing employees at those three
    agencies -- testing which in any event is independently authorized by state statutes
    not at issue in this case -- it would not provide strong support for extending testing
    to all state employees. In short, the State has fallen far short of showing a
    preexisting drug problem that pervades its entire workforce.
    On the other side of the balancing test, the State also claims that state
    employees’ expectations of privacy are diminished for two reasons other than
    50
    Case: 12-12908    Date Filed: 05/29/2013   Page: 51 of 61
    consent. First, drug testing among private employers has become common, and this
    “customary social usage [has] a substantial bearing on Fourth Amendment
    reasonableness.” Georgia v. Randolph, 
    547 U.S. 103
    , 121 (2006). Second, Florida
    has a tradition of open government that diminishes state employees’ expectations
    of privacy. We find neither argument persuasive.
    The problem with the first one is that it confuses what the Supreme Court
    means by a diminished expectation of privacy -- or, more precisely, what baseline
    courts should use to determine whether an employee’s expectation of privacy is
    diminished. The proper baseline is the ordinary government employee’s
    expectation of privacy. In Von Raab, for example, the Supreme Court concluded
    that Customs Service employees involved in drug interdiction had a diminished
    expectation of privacy precisely because, “[u]nlike most private citizens or
    government employees in general, employees involved in drug interdiction
    reasonably should expect effective inquiry into their fitness and probity.” 489 U.S.
    at 672 (emphasis added). In other words, the appropriate inquiry is whether the
    employee being tested has a diminished expectation of privacy relative to the
    ordinary government employee because her position depends on physical fitness
    and judgment. The State’s broad-based argument that all of its employees have a
    reduced expectation of privacy contradicts binding case law.
    51
    Case: 12-12908     Date Filed: 05/29/2013    Page: 52 of 61
    The second argument is similarly unpersuasive. Open government laws
    require state employees to disclose certain financial information and also their
    official work product. The logical leap from disclosure of financial information
    and work product to a diminished expectation of privacy in an employee’s physical
    body is a substantial one. All of the Supreme Court’s cases discuss the diminished
    expectation of privacy specifically with regard to physical or bodily privacy, not
    privacy more broadly conceived. Thus, in Skinner, employees’ expectations of
    privacy were “diminished” because of regulations pertaining to their “health and
    fitness.” See 489 U.S. at 627; see also Von Raab, 
    489 U.S. at 672
     (Customs
    Service employees should have expected inquiries into their “fitness” and
    “dexterity”). Vernonia is perhaps the clearest example of this focus on physical
    privacy. When explaining why athletes have a lower expectation of privacy, the
    Court pointed out that “[s]chool sports are not for the bashful” and require
    “‘suiting up’ before each practice or event, and showering and changing
    afterwards” in “locker rooms . . . not notable for the privacy they afford.” 
    515 U.S. at 657
    . It is readily apparent, then, that when courts analyze employees’
    expectations of privacy in this context, it is their physical privacy that is relevant.
    None of the State’s arguments demonstrate that all state employees,
    including those who have no reasonable relation to safety-sensitive tasks, have a
    reduced expectation of privacy. Just as the State must demonstrate job-category-
    52
    Case: 12-12908        Date Filed: 05/29/2013        Page: 53 of 61
    specific interests, so too must it demonstrate why each particular job category it
    seeks to cover under the Executive Order has a diminished expectation of privacy
    compared to the ordinary government employee. 5
    In sum, we cannot find that the State’s proffered rationales warrant summary
    judgment in the State’s favor concerning all job categories and all employees
    covered by the EO. In this case, the character of the intrusion is relatively
    noninvasive and, “if the ‘special needs’ showing had been made, the State could
    not be faulted for excessive intrusion.” Chandler, 
    520 U.S. at 318
    . However, the
    State has failed to make that showing. As the district court concluded, the State’s
    case most closely resembles Georgia’s failed justification of the policy held
    unconstitutional in Chandler. Unlike in Skinner or Von Raab, where the specific
    job categories subject to testing had a diminished expectation of privacy, the State
    has failed to demonstrate that all 85,000 state employees somehow have
    diminished privacy rights. Moreover, it has failed to provide a compelling or
    5
    The special-needs balancing test also considers the nature of the intrusion -- in other words,
    how invasive the drug-testing protocol is -- and the efficacy of the testing. Neither factor plays a
    determinative role in this case. The character of the intrusion here is very similar to that in
    Skinner, Von Raab, Vernonia, and Earls. The State’s urinalysis protocol, which does not require
    direct observation and which shields results from being used as evidence or disclosed in any
    public or private proceeding, is no more invasive than those procedures that the Supreme Court
    characterized as “minimally intrusive” in Earls or as “negligible” in Vernonia. In those cases, a
    monitor accompanied the students to the bathroom, where they produced a sample without the
    monitor’s direct visual inspection. See Earls, 
    536 U.S. at 832-34
    ; Vernonia, 
    515 U.S. at 658
    ; see
    also Skinner, 
    489 U.S. at 626
    . The confidentiality of test results also weighs in favor of finding
    the intrusion more minimal. See Von Raab, 
    489 U.S. at
    672 n.2. Thus, the nature of the intrusion
    poses no more of a barrier to a finding of reasonableness in this case than it did in those Supreme
    Court cases. Nor do the parties contest the policy’s efficacy.
    53
    Case: 12-12908       Date Filed: 05/29/2013       Page: 54 of 61
    important reason for testing; indeed, it has offered only general and weak
    justifications regarding workplace efficiency and the possible -- not “substantial
    and real,” see Chandler, 
    520 U.S. at
    323 -- risks to safety that any state employee
    may pose.
    IV.
    One final issue has been raised by the parties: who bears the burden in a
    suspicionless drug testing case. In light of limited authority on this issue, and in
    order to provide the district court with guidance on remand, we clarify the precise
    burdens each party bears.
    There are several different burdens that arise in this case. For starters, on a
    motion for summary judgment, “[t]he moving party bears the burden of showing
    that there are no . . . genuine factual issues and that [it] is entitled to summary
    judgment as a matter of law.” Gossett v. Du-Ra-Kel Corp., 
    569 F.2d 869
    , 872 (5th
    Cir. 1978).6 Moreover, “in a [42 U.S.C.] § 1983 action, the plaintiff bears the
    burden of persuasion on every element.” Cuesta v. Sch. Bd. of Miami-Dade Cnty.,
    Fla., 
    285 F.3d 962
    , 970 (11th Cir. 2002). Thus, in Cuesta, when a § 1983 plaintiff
    alleged that she was subjected to a strip search without reasonable suspicion, it was
    “her burden to show that the County lacked reasonable suspicion to search her.” Id.
    6
    In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), this Court
    adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
    October 1, 1981.
    54
    Case: 12-12908     Date Filed: 05/29/2013    Page: 55 of 61
    There is no question, therefore, that the Union ultimately bears the burden of
    persuasion in this case.
    In the drug testing context, a plaintiff may initially meet both the burden of
    going forward and the initial burden of persuasion by demonstrating that (1) there
    was a search; and (2) it was conducted without individualized suspicion, which
    ordinarily is the minimum requirement of the Fourth Amendment. See Chandler,
    
    520 U.S. at 313
    . That showing creates a presumption that the search was
    unconstitutional and shifts the burden of production to the testing policy’s
    proponent to make the special-needs showing explicated in Skinner and its
    progeny. If the proponent of testing fails to respond, or fails to produce a sufficient
    special-needs showing, then the plaintiff would prevail. If the proponent does
    respond by demonstrating that it had special needs sufficiently important to justify
    a suspicionless search, then the district court must conduct the special-needs
    balancing test, bearing in mind that the ultimate burden of persuasion remains
    squarely on the plaintiff. In this case, the Union met its initial burden because on
    its face the EO mandates random, suspicionless testing across the board. At this
    point, the burden of going forward -- that is, the burden of production -- then
    shifted to the State to articulate its justification for conducting those tests without
    individualized suspicion.
    55
    Case: 12-12908      Date Filed: 05/29/2013   Page: 56 of 61
    We apply this burden-shifting framework for several reasons. To begin with,
    a panel of this Court in Lebron held that the burden of producing the special-needs
    showing rests with the State. See 710 F.3d at 1211 n.6 (“[T]he Supreme Court has
    unequivocally stated that it is the state which must show a substantial special need
    to justify its drug testing.”). As the concurring opinion in Lebron noted, “[i]t is
    undisputed that a drug test is a search under the Fourth Amendment, and that the
    government generally has the burden of justifying a warrantless search.” Id. at
    1219 (Jordan, J., concurring) (citing United States v. Bachner, 
    706 F.2d 1121
    , 1126
    (11th Cir. 1983)); accord 
    id.
     (explaining that “the government has the burden of
    establishing a ‘special need’ for a warrantless and suspicionless drug testing
    requirement.”). And although there is scant authority outside this Circuit
    discussing the distribution of burdens in suspicionless drug testing cases, the D.C.
    Circuit has observed that, “[a]lthough neither Von Raab nor Skinner directly
    addressed this question, Von Raab may hint that the burden rests with the
    government.” Am. Fed’n of Gov’t Emps. v. Skinner, 
    885 F.2d 884
    , 894 (D.C. Cir.
    1989).
    Indeed, the relevant Supreme Court cases suggest that the government bears
    the burden of producing the special-needs showing once the plaintiff has made an
    initial showing of an unconstitutional search. In Von Raab, for example, the
    Supreme Court concluded that “the Government has demonstrated that its
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    compelling interests in safeguarding our borders and the public safety outweigh the
    privacy expectations of employees.” 489 U.S. at 677 (emphasis added). Similarly,
    in Chandler, the Court stated, “[W]e note, first, that the testing method the Georgia
    statute describes is relatively noninvasive; therefore, if the ‘special needs’ showing
    had been made, the State could not be faulted for excessive intrusion.” 
    520 U.S. at 318
    ; accord 
    id.
     (“Georgia has failed to show, in justification of [its drug testing
    statute], a special need of that kind.”). These passages imply that the burden rests
    with the proponent of the testing policy to come forward with evidence of a special
    need. This is true even though both cases were civil lawsuits in which the plaintiffs
    challenged the testing and thus bore the ultimate burden of persuasion. What
    happened in those cases is that the plaintiffs met their initial burden, and the
    burden of production then shifted to the government to demonstrate a special need
    sufficiently important to outweigh the plaintiffs’ privacy interests.
    Moreover, this burden-shifting framework follows directly from Fed. R.
    Evid. 301, which states that, “[i]n a civil case . . . the party against whom a
    presumption is directed has the burden of producing evidence to rebut the
    presumption.” Once a § 1983 plaintiff proves that the Fourth Amendment’s
    ordinary requirements have not been met, we presume that a search is
    unconstitutional. Cf. Groh v. Ramirez, 
    540 U.S. 551
    , 564 (2004) (since a home
    search ordinarily requires a warrant, “a warrantless search of the home is
    57
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    presumptively unconstitutional”). Then, the government, which is the party against
    whom the presumption is directed, must make a sufficiently powerful showing to
    justify its intrusion on the plaintiff’s expectation of privacy. Consistent with the
    general rule in § 1983 cases, Fed. R. Evid. 301 “does not shift the burden of
    persuasion, which remains on the party who had it originally.”
    Shifting the burden of production to the government to justify a warrantless
    search is a familiar feature of § 1983 civil lawsuits raising Fourth Amendment
    claims. Thus, for example, when a plaintiff asserts that the police conducted an
    unconstitutional warrantless search, and the government claims that its search was
    legal under an exception to the warrant requirement, other courts of appeals have
    held that the plaintiff meets its initial burden by demonstrating the absence of a
    search warrant. At that point, it is the government that bears the burden of coming
    forward with evidence that an exception to the warrant requirement applied. See
    Der v. Connolly, 
    666 F.3d 1120
    , 1127-28 & n.2 (8th Cir. 2012) (when § 1983
    plaintiff shows a search is presumptively violative of the Fourth Amendment, the
    government has the “burden of going forward with evidence to meet or rebut the
    presumption,” e.g., “evidence of consent or of some other recognized exception”);
    Valance v. Wisel, 
    110 F.3d 1269
    , 1279 (7th Cir. 1997); Ruggiero v. Krzeminski,
    
    928 F.2d 558
    , 563 (2d Cir. 1991).
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    Finally, this allocation of burdens makes sense. The proponent of testing is
    the party best positioned to come forward with its reasons for conducting
    suspicionless drug testing. We will not require plaintiffs to do the impossible: to
    speculate as to all possible reasons justifying the policy they are challenging and
    then to prove a negative -- that is, prove that the government had no special needs
    when it enacted its drug testing policy. Here the plaintiff Union demonstrated that
    the State intended to conduct a suspicionless broad-based search, which shifted the
    burden of production to the State to justify itself based on a special-needs
    exception to the individualized-suspicion requirement. On remand, therefore, the
    State must come forward with the requisite special-needs showing for all
    categories of employees it seeks to test. For some categories, this showing may
    turn out to be quite simple and may amount simply to describing precisely the
    nature of the job and the attendant risks. Thus, for example, as to state law
    enforcement employees who carry firearms in the course of duty, the State likely
    will need to do little more than identify those employees. Von Raab’s holding
    makes it clear that those employees present the type of serious safety risk that
    justifies suspicionless drug testing. For other categories of employees, however,
    the State must make a stronger and more specific showing than it has produced
    thus far. Thus, as to run-of-the-mill office employees, for example, the State must
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    demonstrate how those employees present a serious safety risk comparable to those
    recognized in Skinner and its progeny.
    V.
    To date, the parties’ litigation strategies in this case seem to have focused on
    avoiding the kind of job-category-by-category balancing that Skinner and its
    progeny teach us is the proper modality for evaluating the constitutionality of a
    suspicionless drug testing policy. The Union originally sought, and ultimately
    received, facial relief that cannot be sustained in light of the Executive Order’s
    constitutional applications. Meanwhile, the State has resisted providing the district
    court with any specific special-needs showings that apply to individual job
    categories and instead has insisted that a few broad, abstract reasons can justify the
    EO across the board. Admittedly, providing job-category-specific reasons and
    evidence -- which the district court must have in order to conduct the proper
    analysis -- is a substantial, even onerous, task. Nonetheless, convenience cannot
    override the commands of the Constitution.
    Nor can the parties’ desire for expediency allow a court to conduct the
    necessary calculus in the abstract and in the absence of any real factual record.
    Since the State has failed to meet its burden of production under the special-needs
    balancing test, we can discern no basis to reverse the district court’s order and
    direct that judgment be entered in the State’s favor. The State has fallen far short of
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    justifying the breathtaking scope of the Executive Order, and we have found no
    precedent approving so indiscriminate a testing regime. On the other hand, the
    Union has presented a serious and substantial claim that large swathes of the EO’s
    applications are unconstitutional. But we cannot affirm a judgment and injunction
    that forbid both constitutional and unconstitutional conduct.
    Accordingly, we vacate both the declaratory judgment and the injunction
    and remand for further proceedings consistent with this opinion.
    VACATED AND REMANDED.
    61