Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
73 3. Severance Damages 449 In State by State Highway Commissioner v. Williams,319 a New Jersey appellate court held that when the government takes only part of a personâs property âthe measure of damages is the difference in the value of the tract before and after the taking, or the value of the land that is taken and compensation for the diminution in value [of the remainder] that will result from the taking.â320 4. Comparable Sales or Other Evidence 449 In United States v. 329.73 Acres of Land,321 the Fifth Circuit held that evidence other than comparable sales may be admissible in determining the value of property taken by condemnation. 5. Whether Injunctive Relief Is Available 449 In Osborne & Co. v. Missouri Pacific Railway Co.,322 the Supreme Court held that the courts may deny an injunction when a property ownerâs injury (i.e., the decrease in market value of the adjoining property) may be compensated fairly in damages. Article 450 6. Whether Just Compensation Should Include 450 Nonmarketable Elements A law review article argues that the compensation model for eminent domain should be adjusted to include ânonmarketable elements of home ownership.â323 XIX. EMPLOYEES AND DRUG AND ALCOHOL TESTING 452 A. Introduction 452 The Secretary of Transportation has issued detailed regulations implementing policies and procedures for testing railroad employees for the use of drugs and alcohol. Sections B through F discuss statutes, regulations, and cases on drug and alcohol testing. Section G 319 65 N.J. Super. 518, 168 A.2d 233 (N.J. App. Div. 1961). 320 Id., 65 N.J. Super. at 524, 168 A.2d at 236. 321 666 F.2d 281, 283 (5th Cir. 1982). 322 47 U.S. 248, 260, 13 S. Ct. 299, 303, 37 L. Ed. 155, 161 (1893). 323 John Fee, Eminent Domain and the Sanctity of the Home, 81 NOTRE DAME L. REV. 783 (2006).
74 discusses an article on the expansion of searches without prior suspicion. Section H discusses the use of drug and alcohol testing for other purposes such as unauthorized genetic testing. B. Policies and Procedures Applicable to Drug and Alcohol Testing 453 Statutes and Regulations 453 1. Secretary of Transportationâs Authority to Promulgate Regulations 453 on Drug and Alcohol Testing The DOT Secretary is empowered to issue regulations on the use of controlled substances and alcohol through programs that require âpreemployment, reasonable suspicion, random, and post-accident testing of all railroad employees responsible for safety-sensitive functionsâ;324 to âprescribe regulations and issue orders requiring railroad carriers to conduct periodic recurring testing of railroad employees responsible for safety-sensitive functionsâ¦for the use of alcohol or a controlled substance in violation of law or a Government regulationâ;325 and to issue regulations regarding rehabilitation programs for drug and alcohol use or abuse.326 2. Regulations for the Control of Alcohol and Drug Use in 454 Railroad Operations Transportation employers are subject to detailed requirements for drug and alcohol testing in the workplace for safety-sensitive employees.327 The applicable regulations describe in detail the prohibitions and procedures that apply to railroad employees.328 Case 455 C. The Fourth Amendment Applies to Drug and Alcohol Testing of 455 Railroad Employees In Skinner v. Railway Labor Executivesâ Association,329 the Supreme Court held that although the federally required testing of employees for the use of drugs and alcohol implicated the Fourth Amendmentâs protection from unreasonable searches and seizures, the testing was reasonable and did not violate the Constitution. 324 49 U.S.C. Â§ 20140(b)(1)(A) (2014). 325 49 U.S.C. Â§ 20140(b)(2) (2014). 326 49 U.S.C. Â§ 20140(d) (2014). 327 49 C.F.R. Â§ 40.1(b) (2014); see generally 49 C.F.R. pt. 40 (2014). 328 49 C.F.R. Â§Â§ 219.101â219.107 (2014). 329 489 U.S. 602, 614, 616, 109 S. Ct. 1402, 1411, 1413, 103 L. Ed. 2d 639, 658, 659 (1989).
75 Statutes and Regulations 457 D. 2008 Modifications and More Stringent Requirements for 457 Returning Employees DOT modified its drug and alcohol testing requirements in 2008 by making them more stringent for employees who return to work after failing a drug test and completing a drug treatment program. The District of Columbia Circuit held in BNSF Railway Co. v. United States Department of Transportation330 that the modified regulations did not violate the Fourth Amendment. E. 2014 Proposed Regulations to Expand Alcohol and Drug 458 Testing to Employees Performing Maintenance-of-Way Activities Pursuant to Congressâs mandate in the Rail Safety Improvement Act of 2008, FRA âis proposing to expand the scope of its alcohol and drug regulations to cover employees who perform maintenance-of-way (MOW) activitiesâ and to amend and clarify current alcohol and drug regulations, including the addition of regulations applicable to âregulated service,â a new term.331 Case 461 F. Civil Rights Claims Under Section 1983 461 In Griffin v. Long Island Railroad,332 after the Long Island Railroad (LIRR) terminated Griffin for failing to pass a random drug test, a federal district court in New York held that Griffin could bring an action against LIRR under 42 U.S.C. Â§ 1983 because the statute authorizing FRA to promulgate regulations created a right that was intended to benefit the plaintiff. Articles 462 G. Expansion of Suspicionless Searches 462 A law review article entitled Special Needs and Special Deference: Suspicionless Civil Searches in the Modern Regulatory State examines the Supreme Courtâs expansion of the special needs exception, as seen in Skinner, supra, Part XIX.C, to the individualized suspicion and 330 566 F.3d 200, 209 (D.C. Cir. 2009). 331 Control of Alcohol and Drug Use: Coverage of Maintenance of Way Employees, Retrospective Regulatory Review-Based Amendments (RRR), 79 Fed. Reg. 43830, 43832, 43835 (proposed July 28, 2014) (to be codified in 49 C.F.R. pt. 219). 332 1998 U.S. Dist. LEXIS 19336, at *1, 36, 38 (E.D.N.Y. 1998).