Drake v. F.A.A., 00-5329.

Citation291 F.3d 59
Decision Date31 May 2002
Docket NumberNo. 00-5329.,00-5329.
PartiesRichard DRAKE, Appellant v. FEDERAL AVIATION ADMINISTRATION, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (No. 99cv02790)

Andrew Dunlap, Student Counsel, argued the cause as amicus curiae in support of appellant. With him on the briefs were Steven H. Goldblatt, Director of the Appellate Litigation Program, Georgetown University Law Center, appointed by the court as amicus curiae, Wendy M. Marantz, Supervising Attorney, and Kristina Marlow, Student Counsel.

Richard Drake appearing pro se, was on the briefs for appellant.

Madelyn E. Johnson, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Christy A. Slamowitz, Assistant U.S. Attorney, entered an appearance.

Before: EDWARDS, HENDERSON, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This appeal arises from the District Court's dismissal of appellant Richard Drake's action against the Federal Aviation Agency ("FAA"). Drake believes that Delta Airlines infringed his legal rights when it processed a random drug test that Drake was required to take by virtue of his flight attendant position. Drake therefore contends that the FAA neglected its statutory responsibilities in finding that Delta did not violate agency regulations and breached a regulatory obligation in refusing to disclose information bearing on that determination. The District Court dismissed all of Drake's claims, concluding that they were barred by res judicata. This was error. Nevertheless, we affirm the dismissal on other grounds. The efforts of amicus curiae to convince us otherwise were ultimately unpersuasive.*

Drake's requests for information are moot, because he has received all the documents to which he is entitled under the Freedom of Information Act ("FOIA"). While Drake argues that a since-amended FAA regulation, 49 C.F.R. § 40.37 (1993), guaranteed him more, we defer to the agency's reasonable interpretation of that provision, under which it applies neither to requests made upon the agency itself nor to the broad class of information that Drake has sought here.

Next, we conclude that Drake cannot state a claim under the Administrative Procedure Act ("APA") against the FAA based on its failure to find that Delta had violated the agency's drug testing rules. Under the FAA's organic statute, the agency "may dismiss a complaint without a hearing when the Secretary [of Transportation] or Administrator is of the opinion that the complaint does not state facts that warrant an investigation or action." 49 U.S.C. § 46101(a)(3) (1994) (emphasis added). The FAA's decision to do just that here is "committed to agency discretion by law," and may not be reviewed under the APA. 5 U.S.C. § 701(a)(2).

The last two suggested bases for Drake's action are plainly meritless. First, Drake's complaint cannot be read to support an action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). A Bivens action cannot be maintained against a federal agency such as the FAA, and Drake has neither named nor served any individual defendants. Finally, Drake has asserted no basis for a claim under the Federal Tort Claims Act ("FTCA"). Just as the APA precludes review of the FAA's discretionary decision not to hold a hearing on Drake's complaint against Delta, that decision cannot give rise to FTCA liability either.

I. BACKGROUND

FAA regulations require that air carriers administer periodic drug tests on employees who perform certain safetysensitive functions. See 49 C.F.R. pt. 40 (1993) ("Part 40"). In 1989, the Department of Transportation promulgated the Part 40 rules that were in effect during the times relevant to this case. See Procedures for Transportation Workplace Drug Testing Programs, 54 Fed.Reg. 49,854 (Dec. 1, 1989). These rules included a number of detailed requirements relating to the scope of drug tests and the procedural protections afforded to employees subject to testing.

Under the applicable version of Part 40, an employee's positive test results had to be verified by the employer's Medical Review Officer ("MRO"). Before doing so, however, the MRO normally was required to give an employee a chance to discuss his test result before reporting it to the employer. See 49 C.F.R. § 40.33(c)(1), (5). Where there were questions about the accuracy or validity of a positive result, the MRO could order a retesting of the original specimen. If this reanalysis was negative, the MRO was required to cancel the test. 49 C.F.R. § 40.33(e). If the result was "scientifically insufficient for further action," the MRO could either declare the test negative or order a retest under § 40.33(e). 49 C.F.R. § 40.33(g). Moreover, in a provision entitled "Individual access to test and laboratory certification results," the FAA regulations indicated that an individual "shall, upon written request, have access to any records relating to his drug test and any records relating to the results of any relevant certification, review, or revocation-of-certification proceedings." 49 C.F.R. § 40.37.

While Part 40 by its terms conferred no private right of action against a carrier, employees may file a written complaint with the FAA if they believe a carrier has violated the agency's rules or regulations. See 49 U.S.C. § 46101(a). In turn, the Administrator "shall investigate the complaint if reasonable ground appears to the... Administrator for the investigation." Id. § 46101(a)(1). However, the Administrator "may dismiss a complaint without a hearing when the ... Administrator is of the opinion that the complaint does not state facts that warrant an investigation or action." Id. § 46101(a)(3). If there is a hearing, the Administrator "shall issue an order to compel compliance" with the regulations "if the Administrator finds in an investigation" that the regulations have been violated. Id. § 46101(a)(4).

In accordance with Part 40, Delta Airlines required its flight attendants to undergo random drug tests as a condition of their employment. In 1993, Drake was selected for testing four times, the last on October 28. His urine sample was sent to Delta's designated laboratory, CompuChem Laboratories, Inc., which pronounced it "unsuitable for testing," indicating that it was somehow adulterated or abnormal. A subsequent report suggested that this initial result was "indicative of adulteration with glutaraldehyde," a substance often used to mask the presence of drugs in the body. This finding was transmitted to Dr. William Whaley, Delta's MRO, who decided to forward an aliquot of Drake's sample to another lab, North West Toxicology Laboratory, for further testing. Dr. Whaley allegedly did so without informing Drake or obtaining his consent.

North West's test came back negative for glutaraldehyde, although it revealed a pH of below 4, which the lab considered "inconsistent with human kidney function and highly suggestive of adulteration." Dr. Whaley thus decided to send the urine for yet another retest, this one to be conducted by Dr. Malmoud ElSohly, who believed that he could adjust for the abnormal pH and determine if the sample had been tainted. However, Dr. ElSohly's test uncovered no positive indication of either drugs or adulterants. Thus, while his report did indicate that "the specimen might be adulterated," Dr. ElSohly recommended that Dr. Whaley take no action against Drake "because of presumed adulteration." On November 24, 1993, Dr. Whaley contacted Delta directly, reporting the inconclusive results to the airline's drug program managers. He recounted Drake's testing history, noting that the Part 40 regulations forbade any additional testing on the October 28 sample. Dr. Whaley therefore suggested that Drake be contacted, at which point a new specimen could be collected.

On November 29, North West performed a third retest on Drake's original sample. This test came back positive for glutaraldehyde. The next day, after Delta learned of this result, Drake was removed from active flight status. One month later, he was asked to resign, and was fired when he refused.

On December 28, 1994, Drake filed a pro se complaint against Delta in the United States District Court for the Eastern District of New York, arguing that the airline's testing procedures had violated both the Part 40 regulations and the Fourth Amendment. The District Court in New York dismissed the case on the ground that Part 40 provides no private right of action against a carrier and that the intrusion into Drake's privacy from the various retests of his urine was minimal. See Drake v. Delta Airlines, Inc., 923 F.Supp. 387 (E.D.N.Y.1996). On appeal, the Second Circuit affirmed as to the regulations, but reversed on the constitutional issue. See Drake v. Delta Air Lines, Inc., 147 F.3d 169 (2d Cir.1998). That aspect of the case is still pending. In rejecting Drake's bid to sue under Part 40, the court of appeals noted that Drake "could have sought redress of the alleged regulatory violations through administrative avenues, such as by filing a complaint with the Secretary of Transportation." Id. at 171 n. 2.

In September 1998, Drake formally requested that the FAA investigate Delta for its allegedly unlawful actions in processing his urine sample. Drake met with several agency employees, who purportedly told him that he would be given access to copies of all evidence and material collected during the FAA's investigation. Compl. in Civ. Act. No. 99-2790, at ¶ 11. The FAA conducted a week-long investigation of Delta between November 2 and November 6,...

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