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United States Department of Labor Employees Compensation Appeals Board MICHAEL R. LOGAN, Appellant and DEPARTMENT OF JUSTICE, DRUG ENFORCEMENT AGENCY, New York, NY, Employer))))))))) Appearances:

(This decision and order reflects the Board's holding of this action on December 7, 2003, and the oral argument of this case on December 7, 2005.) [1] This decision and order is a reversal of the Board's earlier decision and order denying petitioners' appeal on December 7, 2003, and granting the Department's motion for summary judgment on July 8, 2004. [2] We hold that respondent was denied motion for summary judgment by the Board on grounds that its employees did not have a contractual right to refuse to submit to a search of their vehicles. Accordingly, the Board must pay respondent's costs on appeal, although we limit the award to costs attributable to this decision and order. [3] As discussed below, the evidence was not clear that respondent had a contractual right to prevent employees from being asked to submit to roadside searches without reasonable suspicion. Nor was it clear whether the search of the plaintiffs' vehicles violated the Fourth Amendment, as defendants argued. Because our reversal on these points will have a substantial effect on these appeals, the court notes that this opinion is not to be considered as a substitute for this opinion and order. This appeal will be stayed pending our ruling on the department's appeals. Accordingly, the clerk of the district court has not entered a decree setting aside the Board's earlier decision and order denying petitioners' appeal and granting the department's motion for summary judgment.[1] Before we consider whether the search was unreasonable, we address respondent's argument that the Board erred in finding that, to the extent it was asking respondents to consent to searching their vehicles, the search was a “pat down” of the passenger compartment, rather than a pat down of the actual vehicle. [2] As the Board itself explains in its order, the search of respondent Robert Belong's vehicle was not “a pat-down” of petitioner Jennifer B. Rent, a passenger in the vehicle. Rather, it involved only the following: a pat down of Belong's person; a pat-down of the vehicle for any weapons he might have had on him; and a pat-down of the vehicle for anything incriminating. [3] Respondent contends that, as a “pat-down” of the passenger compartment would have involved contact with respondent's penis, it violated the Fourth Amendment.

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