Freeman v. Fallin, Civil Action No. 02-0386 (RMU).

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtUrbina
Citation422 F.Supp.2d 53
PartiesStephen D. FREEMAN, Lorraine A. Fairchild, Plaintiffs, v. Allen P. FALLIN et al., Defendants.
Docket NumberCivil Action No. 02-0386 (RMU).
Decision Date03 March 2006
422 F.Supp.2d 53
Stephen D. FREEMAN, Lorraine A. Fairchild, Plaintiffs,
Allen P. FALLIN et al., Defendants.
Civil Action No. 02-0386 (RMU).
United States District Court, District of Columbia.
March 3, 2006.

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Caroline E. Reid, Thomas Joseph Cosgrove, Covington & Burling, Washington, DC, for Plaintiffs.

Gail A. Perry, Office of the General Counsel, Peter Blumberg, United States Attorney's Office, Rolando N. Valdez, U.S. Attorney's Office, Washington, DC, for Defendants.


URBINA, District Judge.



This Bivens1 action comes before the court on the defendants' motion for summary judgment and the plaintiffs' motion for partial summary judgment, both brought pursuant to Federal Rule of Civil Procedure 56(c). The plaintiffs, Stephen Freeman and Lorraine Fairchild, are former criminal investigators with the Office of the Inspector General ("OIG") of the United States Environmental Protection Agency ("EPA"). The defendants, sued in their individual capacities, are former OIG Assistant Inspector General for Investigations Allan Fallin, OIG Deputy Assistant Inspector General for Investigations Emmett Dashiell Jr., OIG Assistant Inspector General for Management John Jones, OIG Counsel to the Inspector General Mark Bialek, and Department of Defense Criminal Investigator Arthur Hymons. The

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plaintiffs allege that the defendants violated the plaintiffs' rights under the Fourth Amendment of the U.S. Constitution by "using a warrantless drug test to gather evidence for a criminal investigation[.]" Am. Compl. ¶¶ 37, 43, 49. Because the warrantless drug tests conducted by the defendants began as a constitutional "special needs" test,2 the defendants did not violate a clearly established right of the plaintiffs. For this reason, the defendants are entitled to qualified immunity and the court grants the defendants' motion for summary judgment and denies the plaintiffs' motion for partial summary judgment.

A. Factual Background

From 1999 to 2000, both plaintiffs worked as criminal investigators for OIG, with plaintiff Freeman assigned to the San Francisco office and plaintiff Fairchild working in the District of Columbia office. Compl. ¶¶ 3-4, 10-11. As criminal investigators engaged in law enforcement and authorized to carry firearms, both plaintiffs were subject to random drug urinalysis testing by the OIG under the EPA's Drug Free Workplace Plan ("DFWP"). Defs.' Mot. at 3; Pls.' Stmt. of Genuine Issues ("Pls.' Stmt.") ¶ 1; Am. Compl. ¶ 12.

Under this program, Linda Wallace, the Director of Operations, Labor, and Employee Relations for the EPA, requests monthly that the database manager for the EPA's personnel system compile a random list of employees for drug testing. Defs.' Mot., Ex. 2 ("Wallace Decl.") ¶ 12. After the database manager compiles the list, Wallace informs the Component Drug Program Coordinators ("CDPC") for each office in which employees are selected for testing. Defs.' Mot. at 4.

After the local EPA office prepares logistically for the drug test, the selected employee is notified of the drug test and directed to report. Id. If the employee is not working in the office on that date, the drug test is scheduled for a date in the future when the employee will be in the office and available for testing. Id.

I. Plaintiff Lorraine Fairchild

On January 10, 2000, plaintiff Fairchild was randomly selected for a drug test pursuant to the DFWP. Am. Compl. ¶ 14. Because Fairchild was not in the office at the time, her drug test was scheduled for February 28, 2000. Defs.' Mot. at 5; Pls.' Stmt. ¶ 5. John Jones, the CDPC for the OIG informed Fairchild upon her return to work on February 28, of the scheduled drug urinalysis test. Defs.' Stmt. ¶ 8; Pls.' Stmt. ¶ 8. The parties do not dispute that the plaintiff became "stressed out" that she would not pass the drug test. Pls.' Stmt. ¶ 9; Defs.' Stmt. ¶ 9. The plaintiff attributes her concern for not passing the test to lawful prescription drugs that she was then taking. Pls.' Stmt. ¶ 10.

According to the defendants, Fairchild approached four coworkers and asked them to provide her with urine specimens for her to submit in her drug test instead of her own. Defs.' Stmt. ¶¶ 10, 11, 12, 13. The plaintiff does not dispute that two of these employees made allegations that she approached them for this purpose, but she stops short of affirming or denying the truth of the allegations. Pls.' Stmt. ¶¶ 10, 13. One of the coworkers, referred to by

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the parties as E.V., reported to defendant Dashiell that Fairchild had asked E.V. for a urine sample. Am. Compl. ¶ 18. Upon receiving this allegation from E.V., Dashiell notified defendant Fallin, the Assistant Inspector General for Investigations and third-line supervisor of plaintiff Fairchild. Defs.' Mot. at 10; Pls.' Mot. at 4. Together, Dashiell and Fallin informed defendant Jones of the allegation. Defs.' Mot. at 10; Pls.' Mot. at 4. Based on these allegations, Jones instructed a laboratory technician to visually observe Fairchild giving her urine sample. Am. Compl. ¶ 4.

On the afternoon of February 28, Fairchild reported to the testing facility and provided a urine specimen. Id. ¶ 16. Because the laboratory technician on duty failed to observe the sampling as directed by Jones, the technician discarded the sample. Id.; Defs.' Mot. at 11.

According to the plaintiffs, on March 6, 2000, the Department of Defense Criminal Investigation Service assigned defendant Hymons to conduct an investigation into Fairchild's alleged actions. Am. Compl. ¶ 20. Defendant Dashiell briefed defendant Hymons on the status of the investigation. Id. Hymons investigated plaintiff Fairchild's conduct by interviewing several EPA employees and keeping in close contact with Jones regarding the progress of Jones' attempt to subject Fairchild to a retesting. Id. ¶ 22.

As rescheduled, Fairchild submitted a drug test on March 9, 2000. Id. ¶ 25. Laboratory personnel observed Fairchild as she submitted the urine sample. Id. This urine sample was likewise discarded after laboratory technicians determined that the sample was insufficiently small. Id. Later that same day, at a meeting between Investigator Hymons, AIG Jones, and Bialek, Jones indicated that the plaintiff was scheduled to undergo testing, and Bialek asked Hymons to "present this matter" to the U.S. Attorney. Id. ¶¶ 22-24. On March 10, 2000, Investigator Hymons allegedly briefed an assistant United States Attorney ("AUSA") for the Southern District of Maryland on the allegations against the plaintiff, and the AUSA indicated that he would make a decision regarding prosecution once the test results were available. Id. ¶ 26.

On March 20, 2000, EPA personnel requested that Fairchild appear for drug testing. As she did for the March 9 drug test, Fairchild reported to the laboratory and provided a urine sample while being monitored by laboratory personnel. Id. ¶ 31.

2. Plaintiff Stephen Freeman

Meanwhile, on February 8, 2000, plaintiff Freeman was randomly selected for a drug test pursuant to the DFWP. Am. Compl. ¶ 15. Freeman was notified of his random selection on March 13, 2000, and he provided a sample that same day without incident. Id. ¶ 27; Defs.' Mot. at 14. Unbeknownst to Freeman, because Freeman and Fairchild were allegedly engaged in a romantic relationship, and because of the allegations that Fairchild solicited EPA cohorts for urine, plaintiff Freeman was under investigation in the investigation already underway as to Fairchild. Am. Compl. ¶¶ 20, 30, 33.

Freeman's urine sample tested negative for drugs. On March 20, 2000 and March 24, 2000, respectively, AIG Jones allegedly informed Investigator Hymons that test results for Freeman and Fairchild were negative. Id. ¶¶ 30, 32. The plaintiffs assert that Investigator Hymons then reported the results to the AUSA, who indicated that he would not go forward with prosecution. Id. ¶ 33.

B. Procedural History

On February 28, 2002, the plaintiffs filed a complaint alleging that the defendants

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violated their Fourth Amendment rights and requesting five million dollars in compensatory and punitive damages. Specifically, the plaintiffs, then pro se, alleged that the defendants manipulated the EPA's random drug-testing procedures to target the plaintiffs for testing in violation of the Fourth Amendment. Compl. ¶ 15.

1. The Defendants' Motion to Dismiss

The defendants moved to dismiss for lack of subject matter jurisdiction, improper venue, insufficient service of process, and failure to state a claim on which relief may be granted. Relevant to the instant motions, the defendants argue that they were entitled to qualified immunity under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). On March 24, 2003, the court denied the defendants' motion to dismiss. The court ruled that the plaintiffs have a Fourth Amendment right to protection against the use of agency suspicionless drug testing procedures to gather evidence for criminal proceedings, and that this right was clearly established at the time of the defendants' actions. Freeman v. Fallin, 254 F.Supp.2d 52, 59-60 (2003). In so ruling, the court noted that the "critical factor in the validity of suspicionless testing is the non-law enforcement nature of the special need asserted as justification." Id. at 60 (citing Ferguson v. City of Charleston, 532 U.S. 67, 79, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001)).

2. The Defendants' Motion to Alter or Amend the Judgment

On February 26, 2004, the court denied the defendants' motion for the court to alter or amend its judgment. Freeman v. Fallin, 310 F.Supp.2d 11 (D.D.C.2004). The court concluded that there was "no intervening change of law, new evidence, or need to correct a clear error or...

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