Swaters v. U.S. Dep't of Transp.
| Citation | 826 F.3d 507 |
| Decision Date | 24 June 2016 |
| Docket Number | No. 14-1277,14-1277 |
| Parties | Jeffrey Swaters, Petitioner v. United States Department of Transportation, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Tony B. Jobe, Madisonville, LA, argued the cause and filed the briefs for petitioner.
Lowell V. Sturgill Jr., Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Benjamin C. Mizer, Assistant Attorney General, Vincent H. Cohen, Jr., Acting U.S. Attorney, Leonard Schaitman, Attorney, Paul M. Geier, Assistant General Counsel for Litigation, United States Department of Transportation, and Paula Lee, Trial Attorney.
Before: Garland,* Chief Judge, Rogers, Circuit Judge, and Ginsburg, Senior Circuit Judge.
, Senior Circuit Judge:
Jeffrey Swaters, a former pilot with Spirit Airlines, challenges the Department of Transportation's refusal to consent to the release of the urine sample it says Swaters produced for a mandatory drug test. The sample, which tested positive for controlled substances, cost Swaters his job and his airman medical certificate. See Swaters v. Osmus , 568 F.3d 1315 (11th Cir. 2009)
; Sturgell v. Swaters , NTSB Order No. EA-5400, 2008 WL 3272390 (2008). Swaters now wants the urine sample in order to conduct a DNA test in the hope of proving, in a state court negligence action, the urine is not his. We hold that neither the DoT's general rule against releasing urine samples for DNA testing, nor its refusal to release the sample in this case, is arbitrary, capricious, or contrary to the Omnibus Transportation Employee Testing Act of 1991. We also hold that Swaters's constitutional challenges to the rule fail.1 We therefore deny Swaters's petition for review.
After captaining a flight to Ft. Lauderdale one day in 2007, Swaters was informed he had been randomly selected for a drug test. Swaters , 568 F.3d at 1316–17
. Such tests are required by law. The Omnibus Act, Pub. L. No. 102-132, 105 Stat. 952, requires the Federal Aviation Administration to establish drug-testing programs for “employees responsible for safety-sensitive functions,” including commercial pilots. See 49 U.S.C. § 45102(a). The FAA's testing regime is governed by 49 C.F.R. Part 40. As required by the Omnibus Act, the provisions of Part 40 for testing pilots accord with the testing guidelines of the Department of Health and Human Services. See 49 U.S.C. § 45104(2).
Part 40 contains detailed instructions for the collection and handling of urine samples. See 49 C.F.R. §§ 40.41
-73. Among other things, collectors must maintain personal control over a specimen throughout the collection process and ensure that no one other than the employee being tested touches the sample until it has been sealed. Id. § 40.43(d). After the sample is divided in two and each moiety is bottled and sealed (to allow for confirmatory testing), the collector must write the date on tamper-evident bottle seals and the employee must add his initials to certify that the bottles contain the sample he provided. Id. § 40.71(b). Both the employee and the collector must also sign a Federal Custody and Control Form (CCF). Id. § 40.73(a)
. The collector then places the specimen bottles and a copy of the CCF in a secured plastic bag in the employee's presence, puts the bag in a shipping container, seals the container, and sends the sample to a testing laboratory without delay. Id. § 40.73(a) -(c).
There is every indication these procedures were followed when Swaters gave his sample at the collection facility. See Swaters , 568 F.3d at 1322–23
. Swaters signed the CCF, declaring:
I certify that I provided my urine specimen to the collector; that I have not adulterated it in any manner; each specimen bottle used was sealed with a tamper-evident seal in my presence; and that the information provided on this form and on the label affixed to each specimen bottle is correct.
. He also initialed the sealed specimen bottles. Id.
Swaters's specimen was sent to Quest Diagnostics, Inc., an HHS-approved testing laboratory. Id.
Two weeks later, Quest reported to Spirit Airlines that Swaters's sample contained morphine at more than eight times the legal limit, a metabolite of heroin at more than 49 times the legal limit, and a metabolite of cocaine at more than 63 times the legal limit. Id. at 1317 n. 2.
Swaters denied using the drugs and requested that his split sample be tested at a different lab. Id. at 1317
. That was done by Diagnostic Sciences, Inc., another HHS-approved facility, which reported the same results as had Quest. Id. at 1317–18. On the basis of these positive tests, the FAA found Swaters had violated 14 C.F.R. §§ 91.17(a)(3) & 121.455(b), which prohibit intoxication by pilots, and issued an emergency order revoking his Airline Transport Pilot and First Class Airman Medical certifications. Id. at 1318.
Swaters appealed the revocation of his certificate to the National Transportation Safety Board. An Administrative Law Judge conducted a two-day evidentiary hearing at which both Swaters and the FAA put on multiple witnesses. See Swaters , 2008 WL 3272390 at *1. While Swaters offered several affirmative defenses—notably that he did not use any drugs and that his samples were mishandled—the ALJ found his testimony not credible and concluded there was “no reason to doubt” the validity of the positive tests. Id. at *7–8. The full Board affirmed, holding the testimony of Swaters and his witnesses was “insufficient to carry [Swaters's] burden to rebut the prima facie case” presented by the FAA. Id. at 5. On further review, the Eleventh Circuit Court of Appeals upheld the Board's decision, holding “it was not arbitrary and capricious for the Board to conclude that the FAA had made a prima facie showing,” and “that Swaters failed to rebut the FAA's prima facie case.” Swaters , 568 F.3d at 1327
.
Some months after the Eleventh Circuit upheld the revocation of his license, Swaters filed a lawsuit for negligence in Florida state court against Concentra, the company that had collected his urine sample. In that action, Swaters served subpoenas on Quest Diagnostics, Inc. and its subsidiary, Quest Diagnostics Clinical Laboratories, Inc. (collectively “Quest”), seeking to obtain his original urine sample. See Quest Diagnostics, Inc. v. Swaters , 94 So.3d 635, 636–37 (Fla. Dist. Ct. App. 2012)
. Quest objected to the subpoena, arguing DoT regulations prohibited it from releasing any samples without the Department's consent, which the DoT was not willing to give. Id. at 637. The trial court granted Swaters's motion to compel production, but the court of appeals quashed the order, finding that federal law prevented discovery without the DoT's consent. Id. at 638
. The Florida Supreme Court declined to review the decision.
In 2014, Swaters's attorney sent to Patrice Kelly, the Acting Director of the Office of Drug & Alcohol Policy & Compliance (ODAPC), a formal request that the DoT consent to Quest releasing Swaters's sample “pursuant to 49 C.F.R. § 40.331(f)
.” He sent a similar message to Anne Bechdolt, an attorney in the DoT Office of the General Counsel. Because the purpose of the request was to conduct DNA testing on the sample, Bechdolt explained, there was little she could do in light of the DoT's “long-standing position,” codified in 49 C.F.R. § 40.13, against “allow[ing] DNA testing on DoT specimens.” Citing the preamble to the Department's testing regulations, Procedures for Transportation Workplace Drug and Alcohol Testing Programs , 65 Fed. Reg. 79,462, 79,484 (Dec. 19, 2000), she explained: (1) the DoT believed a properly documented chain of custody was sufficient to establish the identity of a specimen; and (2) the DoT was concerned that a negative DNA match could not account for the possibility that the subject attempted to defeat the test by substituting either the original or control sample.
After several more exchanges with Bechdolt, Swaters's attorney wrote to the Acting Deputy Secretary of Transportation, Victor Mendez, and to the DoT General Counsel, Kathryn Thomson, about his request. Bechdolt and Thomson then spoke with Swaters's attorney by phone, reiterating that § 40.13
prohibits releasing samples for DNA testing and again explaining why. The attorney followed up by mailing Bechdolt and Kelly a lengthy questionnaire, at which point Thomson sent him a final decision stating “no further explanation is warranted” because the “regulations set forth in 49 CFR part 40 are clear.” Swaters then petitioned this court for review.
Swaters challenges the DoT's decision on three grounds. First, he argues the DoT's refusal to release his sample was arbitrary and capricious, both because the Department never explained its reasoning, and because it improperly interpreted its own regulations. Second, he argues that insofar as the DoT's regulations do prohibit the release of a sample for DNA testing, they are themselves arbitrary and capricious, and inconsistent with the Omnibus Act. Finally, he maintains that his inability to obtain his sample violates his constitutional rights. None of these arguments is persuasive.
Swaters argues the DoT's refusal to release his sample was arbitrary and capricious because the Department “failed to provide any rationale for its decision.” He is, of course, correct that an agency must offer “an explanation that will enable the court to evaluate the agency's rationale at the time of decision,” CSI Aviation Servs., Inc. v. U.S. Dep't of Transp. , 637 F.3d 408, 414 (D.C. Cir. 2011)
(quoting Pension Benefit Guar. Corp. v. LTV Corp. , 496 U.S. 633, 654, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) ); he is incorrect, however, in claiming the DoT failed to provide an adequate explanation for its decision in this case. As the Department correctly points out, DoT officials repeatedly explained the agency's longstanding...
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