Hammons v. Norfolk Southern Corp.

• Citation: 156 F.3d 701
• Decision Date: 02 October 1998
• Docket Number: No. 97-3465,97-3465
• Parties: 136 Lab.Cas. P 10,260 Jerry HAMMONS, Plaintiff-Appellant, v. NORFOLK SOUTHERN CORPORATION, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 701

156 F.3d 701

136 Lab.Cas. P 10,260

Jerry HAMMONS, Plaintiff-Appellant, v. NORFOLK SOUTHERN CORPORATION, et al., Defendants-Appellees.

No. 97-3465.

United States Court of Appeals, Sixth Circuit.

Argued June 19, 1998.

Decided Oct. 2, 1998.

David G. Torchia (argued and briefed), Tobias, Kraus & Torchia, Cincinnati, OH, for Plaintiff-Appellant.

Robert A. Dimling (briefed), Frost & Jacobs, Cincinnati, OH, Jeffrey S. Berlin (briefed), Mark E. Martin (argued and briefed), Sidley & Austin, Washington, DC, for Defendants-Appellees.

Before: MOORE, CLAY and GILMAN, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Appellant, Jerry Hammons, appeals from the district court's order granting the motion of Appellees, Norfolk Southern Corporation, et al. ("Norfolk"), to dismiss Count I of his Second Amended Complaint, which asserts a Bivens ¹ claim against Norfolk, and denying Hammons' motion to amend the complaint. For the reasons set forth below, we REVERSE the order of the district court and REMAND for proceedings consistent with this opinion.

I.

Hammons was employed by Cincinnati, New Orleans, and Texas Pacific Railway Company ("CNT") ². On June 15, 1990, Hammons was subjected to a random urine drug screen pursuant to Norfolk's company policy and the Federal Railroad Administration's Control of Alcohol and Drug Use Regulations ("FRA Regulations"), 49 C.F.R. §§ 219 et seq. ³ He tested positive for marijuana and was suspended from service. A new urine sample was provided by Hammons, which tested negative for drugs. Because the results of the second drug screen were negative, J.P. Salb, M.D., Norfolk's Director of Medical Services, notified Hammons, in a letter dated July 30, 1990, that he would be returned to service. However, the letter also warned Hammons that "[s]hould any future test be positive, you will be subject to dismissal." (J.A. at 88.) Thereafter, Hammons was allegedly subjected to approximately twenty-four random drug screens during the next year and a half. (Id. at 21.)

On February 27, 1992, Hammons' urine sample tested positive for cocaine. Consequently, on April 14, 1992, Hammons was discharged from service for failure to comply with company policy and the terms of the July 30, 1990 letter. As permitted by the collective bargaining agreement ("CBA") Hammons, represented by the United Transportation Union ("Union"), appealed his dismissal within the company. The appeal was denied, by letter dated May 11, 1992. In that letter, Norfolk stated that as a result of the hearing held on April 9, 1992, to determine the facts surrounding Hammons' alleged failure to comply with company policy, "substantial evidence clearly proved the claimant was guilty as charged. The discipline applied was fully warranted and this claim is declined in its entirety." (J.A. at 97.)

In accordance with the CBA, Hammons then appealed the matter to Public Law Board No. 959 ("the Board"), which upheld the discharge based on its finding that Hammons did not proffer any evidence to disprove the laboratory results or show them to be flawed. The underlying action was then initiated as a result of the Board's decision.

Count I of Hammons' original complaint asserted a claim against Norfolk under 42 U.S.C. § 1983. Hammons alleged that by testing him for drugs in violation of 49 C.F.R. § 216.601, Norfolk violated his right under the Fourth Amendment to be free of unreasonable searches and seizures. ⁴ Norfolk moved to dismiss Count I on the ground that Hammons had not alleged that Norfolk acted under color of state law. In response, Hammons moved to file a second amended complaint in order to assert a Bivens claim against Norfolk instead of the § 1983 claim. ⁵ Norfolk opposed the motion, contending that a Bivens action cannot be maintained against a private entity. In support of its argument, Norfolk relied upon Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223 (D.C.Cir.1994). Kauffman held that a Bivens action cannot be brought against private entities engaging in federal action. In turn, Hammons argued that the District of Columbia Circuit's holding in Kauffman is contrary to the Sixth Circuit's holding in Yiamouyiannis v. Chemical Abstracts Service, 521 F.2d 1392 (6th Cir.1975) which, according to Hammons, permitted a Bivens claim against a private corporation. ⁶

The lower court granted Hammons' motion to file a Second Amended Complaint. Count I of Hammons' complaint asserted a Bivens claim against Norfolk alone. Hammons again alleged that by testing him for drugs in violation of 49 C.F.R. § 216.601, Norfolk violated his Fourth Amendment right to be free of unreasonable searches and seizures.

Norfolk moved to dismiss Count I pursuant to Fed.R.Civ.P. 12(b)(6), again asserting that a Bivens action cannot be brought against a private corporation. Hammons opposed the motion and stated, in the alternative, that if the court accepted Norfolk's argument, he should be allowed to amend the complaint to name individual defendants. Hammons also stated that he was "not able to currently identify with any specificity the individual(s) ... responsible for the violation of his constitutional rights" and, therefore, he would need more discovery. (J.A. at 192-93.)

On March 12, 1996, the magistrate judge issued a report which recommended that Norfolk's motion to dismiss Count I be granted, and that Hammons' motion to amend the complaint to name individual defendants be denied. The district court adopted the magistrate judge's report and recommendation by entry of order dated April 24, 1996. Hammons now appeals.

II.

We review dismissals brought pursuant to Fed.R.Civ.P. 12(b)(6) de novo. Merriweather v. City of Memphis, 107 F.3d 396, 398 (6th Cir.1997). A complaint may be dismissed under 12(b)(6) "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). Moreover, in determining whether dismissal is appropriate, "the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

III.

A. Bivens Actions

Bivens actions are a creation of federal judicial law. Their roots can be found in the opinion 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). In Bivens, a complaint was filed against agents of the Federal Bureau of Narcotics alleging that while acting under the color of federal authority, the agents conducted a warrantless search of the petitioner's apartment, and arrested him without probable cause in violation of the petitioner's Fourth Amendment rights. Id. at 389-90, 91 S.Ct. 1999. The Bivens Court ultimately held that the petitioner could recover damages from the federal agents for the injuries that they allegedly inflicted in violation of the petitioner's Fourth Amendment rights. Id. at 392-97, 91 S.Ct. 1999. However, this remedy may be defeated when "special factors counselling hesitation" exist, or "Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).

Bivens authorized damages have since been extended by the Supreme Court to Fifth and Eighth Amendment violations. See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (holding that "[a] cause of action and damages remedy can be implied directly under the Constitution when the Due Process Clause of the Fifth Amendment is violated"); Carlson, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (holding that Bivens remedy was available to the respondent, who alleged that federal prison officials violated his Eighth Amendment rights, even though the allegations could also support a suit under the Federal Tort Claims Act).

It is clear that in order to maintain a claim under Bivens, there must be a showing of "federal" governmental action as opposed to "state" governmental action. See Bivens, 403 U.S. at 392, 91 S.Ct. 1999. The doctrine encompassing both terms, however, is commonly referred to as "state action". See Dobyns v. E-Systems, Inc., 667 F.2d 1219, 1220 n. 1 (5th Cir.1982) "As a matter of substantive constitutional law the state-action requirement reflects judicial recognition of the fact that 'most rights secured by the Constitution are protected only against infringement by governments.' " Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978)). ⁷ It should be noted that the issue of whether Norfolk engaged in state action significant enough for Hammons to maintain a Bivens claim is not for us to decide at this juncture, but for purposes of this appeal we will assume that sufficient state action has been alleged. ⁸

B. Liability of Private Corporations Under Bivens

1. The Meyer Decision

Hammons argues that the lower court erred when it held that Norfolk, a private corporation, could not be sued under Bivens. Specifically, Hammons asserts that the lower court's reliance on Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), was misplaced inasmuch as that decision did not address the specific issue of whether a Bivens action can be maintained against a private corporation. We agree.

In Meyer, the Supreme Court held that a Bivens action cannot be brought against a federal agency. 510 U.S. at 486, 114 S.Ct. 996. The Court based its holding primarily on its belief that a damages remedy against federal agencies would undermine the purpose of Bivens--deterring the individual wrongdoer. Id. at 485, 114 S.Ct. 996. The Court noted that "the deterrent effects of the Bivens remedy would be...