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Lebron v. Sec'y of Fla. Dep't of Children & Families

United States Court of Appeals, Eleventh Circuit

December 3, 2014

LUIS W. LEBRON, Individually and as Class Representative, Plaintiff - Appellee,

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:11-cv-01473-MSS-DAB.

For LUIS W. LEBRON, Individually and as Class Representative, Plaintiff - Appellee: Randall Challen Berg Jr., Dante Pasquale Trevisani, Florida Justice Institute, Inc., Miami, FL; Maria Kayanan, Shalini Goel Agarwal, ACLU Foundation of Florida, Inc., Miami, FL; Shawn Alex Heller, Social Justice Law Collective PL, Washingtion, DC; Randall C. Marshall, American Civil Liberties Union, Montgomery, AL; Lisa Marie Raleigh, Office of the Attorney General, The Capitol Pl-01, Tallahassee, FL; Jason D. Williamson, New York Civil Liberties Union (NYCLU), New York, NY.

For Florida Department of Children And Families, Defendant - Appellant: Allen C. Winsor, Pam Bondi, Lisa Marie Raleigh, Adam Scott Tanenbaum, Jason Vail, Osvaldo Vazquez, Office of the Attorney General, The Capitol Pl-01, Tallahassee, FL.

For States of Alabama And Georgia, Amicus Curiae: Andrew Lynn Brasher, Alabama Attorney General's Office, Montgomery, AL.

Before HULL and MARCUS, Circuit Judges, and TOTENBERG,[*] District Judge.


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MARCUS, Circuit Judge

A Florida statute mandates suspicionless drug testing of all applicants seeking Temporary Assistance for Needy Families (" TANF" ) benefits. See Fla. Stat. § 414.0652. Luis Lebron sued the Secretary of the Florida Department of Children and Families (the " State" ), claiming that the statute violates the Fourth Amendment's prohibition against unreasonable searches and seizures, applied against the states through the Fourteenth Amendment. After we affirmed the entry of a preliminary injunction barring the application of the statute against Lebron, the State halted the drug-testing program. See Lebron v. Sec'y, Fla. Dep't of Children & Families (Lebron I), 710 F.3d 1202 (11th Cir. 2013). Since then, the district court granted final summary judgment to Lebron, declared § 414.0652 unconstitutional, and permanently enjoined its enforcement.

We affirm. On this record, the State has failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion. Even viewing the facts in the light most favorable to the nonmoving party, the State has not demonstrated a more prevalent, unique, or different drug problem among TANF applicants than in the general population. The ordinary government interests claimed in this case are nothing like the narrow category of special needs that justify blanket drug testing of railroad workers, certain federal Customs employees involved in drug interdiction or who carry firearms, or students who participate in extracurricular activities because those programs involve " surpassing safety interests," Skinner v. Railway Labor Execs. Ass'n, 489 U.S. 602, 634, 109 S.Ct. 1402,

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103 L.Ed.2d 639 (1989), or " close supervision of school children," Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (quoting New Jersey v. T.L.O., 469 U.S. 325, 339, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)).

Moreover, as we held in Lebron I, the State cannot circumvent constitutional concerns by requiring that applicants consent to a drug test to receive TANF payments. When a government benefit is conditioned on suspicionless drug testing, the voluntariness of the program is properly viewed as a factor baked into the special needs reasonableness analysis, not as an exception to it.



Congress created TANF in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105. TANF provides federal block grants for state programs " that provide[] assistance to needy families with (or expecting) children and provide[] parents with job preparation, work, and support services to enable them to leave the program and become self-sufficient." 42 U.S.C. § 602(a)(1)(A)(i). Florida began disbursing TANF benefits, including Temporary Cash Assistance, to families in 1996 through its Department of Children and Families (" DCF" or the " Department" ). To apply for TANF benefits in Florida, an individual must complete an application and must satisfy a number of eligibility requirements. Fla. Stat. § 414.095. Only expectant mothers and families with children qualify. Id. § 414.095(14)(a). In the application, an individual must disclose certain information, including medical history, immunization records, living arrangements, social security numbers, family income, employment history, and job-search activities. For families of two like Lebron and his son, the maximum Temporary Cash Assistance benefit currently is $241.00 per month. Id. § 414.095(10)(c). An individual generally may not receive TANF Temporary Cash Assistance for more than a lifetime cumulative total of 48 months. Id. § 414.105.

Congress specified in the 1996 Act that states were not prohibited " from testing welfare recipients for use of controlled substances nor from sanctioning welfare recipients who test positive for use of controlled substances." 21 U.S.C. § 862b. In 2011, Florida enacted a statute requiring suspicionless drug screening for all TANF applicants as a condition of eligibility. Fla. Stat. § 414.0652. Under that law, applicants must provide a DCF-approved laboratory with a urine sample to be tested for Amphetamines, Methamphetamines, Cannabinoids (THC), Cocaine, Phencyclidine (PCP), Opiates, Barbiturates, Benzodiazepines, Methadone, and Propoxyphene. The statute does not require testing for alcohol. DCF must " [a]dvise each individual to be tested, before the test is conducted, that he or she may, but is not required to, advise the agent administering the test of any prescription or over-the-counter medication he or she is taking." Id. § 414.0652(2)(d). Applicants bear the cost of testing, which during the period of the statute's implementation generally ranged between $24 and $45. However, if an applicant tests negative for controlled substances, the Department increases the amount of TANF benefit to compensate for the testing expense. Id. § 414.0652(2)(a). State law provides that " [a] sample shall be collected with due regard to the privacy of the individual providing the sample, and in a manner reasonably calculated to prevent substitution or contamination of the sample." Id.

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§ 112.0455(8)(a).[1] Notably, an applicant may arrange the timing of filing an application; after the State determines that the applicant has satisfied all non-drug testing eligibility factors (e.g., income, assets, etc.), the applicant must pass a drug test within ten days.

Under § 414.0652, an individual who tests positive for controlled substances is ineligible for TANF benefits for one year, though those who fail drug tests may reapply for benefits after six months if they can document successful completion of a substance abuse treatment program and pass another drug test. Id. § § 414.0652(1)(b), (2)(j). A parent cannot receive benefits without passing a drug test, but the parent's failure of a test does not affect a child's eligibility to receive TANF benefits; instead, a protective payee would be designated to receive benefits for the child. Id. § 414.0652(3).

The § 414.0652 drug-testing requirement went into effect on July 1, 2011, and was enforced until the district court entered a preliminary injunction on October 24, 2011. During that period, 4,046 TANF applicants submitted to drug testing. Only 108 -- 2.67% -- tested positive for drug use: 44 for cannabinoids (marijuana); 24 for benzodiazepines (e.g., Xanax); 10 for cocaine; 9 each for barbiturates and opiates; 10 for methadone; 3 for propoxyphene; 5 for amphetamines or methamphetamines; and 2 for PCP.[2] Throughout that period, 2,306 additional applicants did not complete applications and submit drug-test results to DCF, even though they were otherwise eligible for TANF Temporary Cash Assistance.

When he brought suit, Lebron had sole custody of his five-year-old son. A veteran of the United States Navy and a college student, Lebron was a thirty-five-year-old single-parent who lived with and cared for his disabled mother in Orlando, Florida. On July 16, 2011, Lebron applied to DCF for TANF benefits for himself and his son. Lebron initially signed a form agreeing to drug testing, but he later revoked his consent and refused to take the test. If Lebron had passed a drug test and submitted the results, the Department determined, he and his son would have been eligible for TANF benefits. Without the test, however, the Department deemed him ineligible to receive TANF assistance and denied his application on August 25, 2011.


On behalf of himself and a class of similarly situated persons, Lebron commenced this lawsuit in the United States District Court for the Middle District of Florida on September 6, 2011, against the Secretary of DCF in his official capacity. Lebron sought a declaration that requiring suspicionless drug testing for TANF eligibility

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under § 414.0652 violated the Fourth Amendment right to be free from unreasonable searches. Lebron also asked for a permanent injunction barring the enforcement of § 414.0652. Lebron filed a motion for a preliminary injunction with his complaint.

On October 24, 2011, the district court preliminarily enjoined the State from requiring that Lebron submit to a suspicionless drug test pursuant to § 414.0652 as a condition for receiving TANF benefits until the case was resolved. Lebron v. Wilkins, 820 F.Supp.2d 1273, 1293 (M.D. Fla. 2011). The court found that Lebron was substantially likely to succeed on the merits of his challenge, that he would suffer irreparable injury without an injunction, that his threatened injury outweighed the possible injury to the State, and that an injunction would not disserve the public interest. See id. at 1281 (citing Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1326 (11th Cir. 2001)). Because the State stipulated that it would apply the ruling to all similarly situated persons, the district court initially denied without prejudice Lebron's motion for class certification. Shortly thereafter, though, out of concern that Lebron's individual claim might become moot during the litigation, the district court certified a class of Florida TANF applicants.[3] In response to the preliminary injunction, DCF suspended the § 414.0652 TANF drug-testing program statewide, approved all applications that had been pending based on drug testing, approved benefits for individuals who had tested positive, and reimbursed TANF applicants for drug tests to the extent they had not already received reimbursement. In total, the Department restored TANF Temporary Cash Assistance to approximately 1,727 families.

The Secretary appealed the preliminary injunction, and a panel of this Court affirmed. Lebron I, 710 F.3d 1202. We found it undisputed that government-mandated drug testing is a Fourth Amendment " search." Id. at 1206. The Court explained that, to qualify as a constitutionally reasonable search, § 414.0652 drug testing either must be based on individualized suspicion of wrongdoing, or must involve certain limited and exceptional circumstances, when the government shows substantial " special needs." Id. at 1206-07 (quoting Skinner, 489 U.S. at 619). Because this case did not involve either of the two exceptional circumstances recognized by the Supreme Court -- employees engaged in inherently dangerous jobs (such as railroad workers or federal Customs employees who are involved in drug interdiction or who carry firearms) and children in public schools -- we concluded that the district court did not abuse its discretion in determining that the State failed to establish a substantial special need justifying its TANF drug-testing requirement. The State's claimed special need -- ensuring that the goals of TANF are not jeopardized by drug use -- rested on a presumption of an unlawful drug-use problem among Florida TANF recipients that the State had failed to support with concrete facts. Id. at 1212-13. The Court also rejected the State's alternative claim that § 414.0652 drug testing was constitutionally permissible because TANF applicants gave their consent, citing " the Supreme Court's long-standing admonition that the government 'may not deny a benefit

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to a person on a basis that infringes his constitutionally protected interests.'" Id. at 1217 (quoting Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)). Ultimately, the Court held that the district court did not abuse its discretion in rejecting the State's consent argument due to the unconstitutional conditions doctrine. Id. at 1218. The State petitioned for rehearing en banc, which the Court denied.

Meanwhile, the State had not sought a stay of the matter in the district court pending appeal, and both parties filed motions for summary judgment before we decided Lebron I. After we issued our opinion in the preliminary injunction matter, and after the completion of discovery, the district court entered an order granting final summary judgment in favor of Lebron and denying the State's motion. The State argued in the district court that drug testing was constitutionally permissible because of three " special needs" : " (1) ensuring TANF participants' job readiness; (2) ensuring the TANF program meets its child-welfare and family-stability goals; and (3) ensuring that public funds are used for their intended purposes and not to undermine public health." Id. at 1291. Citing Lebron I, the district court concluded, however, that the State failed to show that TANF recipients fell within the " closely guarded category" for whom the Supreme Court has allowed suspicionless drug testing, and also failed to demonstrate that the statute was necessary to protect children because the TANF testing has no impact on the familial and custodial relationships of applicants. Id.

Significantly, the district court also found that the only competent record evidence addressing drug use among the Florida TANF population came from a 1998 study conducted by DCF that actually found a lower rate of drug usage among TANF applicants than among current estimates of the population of Florida as a whole. Id. at 1293. The court deemed inadmissible or irrelevant other evidence proffered by the State concerning the rate of drug use among Florida's TANF population. The district court concluded that " there simply is no competent evidence offered on this record of the sort of pervasive drug problem the State envisioned in the promulgation of this statute." Id. at 1298. Finally, the court rejected the state's consent argument, finding that consent under the statute was not voluntarily given. Id. Ultimately, because there was no set of circumstances under which § 414.0652 could be applied constitutionally, the court declared the statute facially unconstitutional and permanently enjoined the State from enforcing it. Id. at 1299. The State filed a timely notice of appeal of the district court's final order, which we have jurisdiction to review under 28 U.S.C. § 1291.


We review the district court's grant of summary judgment in favor of Lebron de novo, viewing all facts in the light most favorable to the State. Am. Fed'n of State, Cnty. & Mun. Emps. Council 79 v. Scott (AFSCME), 717 F.3d 851, 862 (11th Cir. 2013). We review evidentiary rulings, including the exclusion of evidence at summary judgment, for abuse of discretion. See Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). Thus, we defer to the district court's ruling unless it is " manifestly erroneous" : " Because the task of evaluating the reliability of expert testimony is uniquely entrusted to the district court . . . we give the district court 'considerable leeway' in the execution of its duty." Hendrix ex rel. G.P. v. Evenflo

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Co., 609 F.3d 1183, 1191 (11th Cir. 2010) (quoting Rink v. Cheminova, 400 F.3d 1286, 1291 (11th Cir. 2005)). Similarly, " [t]he ultimate decision as to the admissibility of lay opinion testimony is committed to the sound discretion of the district court and will not be overturned on appeal unless there is clear abuse of discretion." United States v. Myers, 972 F.2d 1566, 1576-77 (11th Cir. 1992). " Evidence inadmissible at trial cannot be used to avoid summary judgment." Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1313 (11th Cir. 2014) (quoting Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007)).

Under the " law of the case" doctrine, the " findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal." Heathcoat v. Potts, 905 F.2d 367, 370 (11th Cir. 1990) (per curiam) (quoting Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir. 1984)). This doctrine is limited to issues actually decided by the appellate court, and discussion in dicta " is neither the law of the case nor binding precedent." Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir. 1992). Still, law of the case includes " things decided by necessary implication as well as those decided explicitly." Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir. 1984) (per curiam) (quoting Dickinson v. Auto Ctr. Mfg. Co., 733 F.2d 1092, 1098 (5th Cir. 1983)). Our precedent recognizes three exceptions to the law of the case doctrine: " when (1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to that issue, or (3) the prior decision was clearly erroneous and would work manifest injustice." Id. (quoting United States v. Robinson, 690 F.2d 869, 872 (11th Cir. 1982)). We enforce this judge-made doctrine in the interests of efficiency, finality and consistency: " [f]ailure to honor its commands can only result in chaos." Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1511 (11th Cir. 1987) (en banc).

In Lebron I, we reviewed the grant of a preliminary injunction on an undeveloped record and asked only whether the district court had abused its discretion in determining that Lebron was likely to succeed on the merits of his claim. See 710 F.3d at 1206. The Court was not asked, and did not decide, the ultimate constitutionality of § 414.0652. See id. at 1218 (Jordan, J., concurring). Still, in reaching its decision, Lebron I noted a number of legal principles that apply equally to the issues presently before us.


" The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV. The drug testing by urinalysis required under ยง 414.0652 is undisputedly a Fourth Amendment search. Skinner, 489 U.S. at 617 (" Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, . . . these intrusions must be deemed searches under the Fourth Amendment." ). The question is whether mandatory, suspicionless drug testing of all TANF applicants amounts to a reasonable search. While the Constitution generally prohibits government searches conducted without individualized suspicion, the Supreme Court has ...

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