Opposition Brief — Parry v. Mohawk Motors of Michigan, Inc.

JUN } 200)

No. 00-1655

CEKICE Uo 3

IN THE

Supreme Court of the United States

CHRISTOPHER J. PARRY,

Petitioner,

MOHAWK MOTORS OF MICHIGAN, INC., et al,

Respondents.

On PETITION FOR A Wait OF CERTIORARI TO THE

Unirep Srares Court OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION FOR

RESPONDENT MED EXPRESS

D. Fave CALDWELI

Counsel of Record

CALDWELL CLINTON

& Evans P.L.L.C.

Fk. DANIEL BALMER1

Vorys, SATER, SEYMOUR

& Prase, L.L.P.

2100 One Cleveland Center

2200 First City Tower 1375 East Ninth Street

100] Fannin Cleveland, Ohio 44114

Houston, Texas 77002 (216) 479-6100

(713) 654-3000

Attorneys for Respondent LabCorp Occupational Testing

Services, Ine., V/k/a National Laboratory Center, Inc..

operating under the service mark of Med Express

LS)

l

QUESTIONS PRESENTED

Whether an implied private right of action exists to

enforce federal drug testing regulations enacted pursuant

to the Omnibus Transportation Employee Testing Act of

1991, Pub. L. No. 192-143, 105 Stat. 952 (1992) and its

progeny.

Whether Petitioner’s claim under Bivens v. Six Unknown

Named Agents of the Fed. Bureau of Narcotics was

properly before the district court.

Whether the limited constitutional tort recognized by the

Supreme Court in Bivens v. Six Unknown Named Agents

of the Fed. Bureau of Narcotics provides Petitioner an

implied remedy for alleged procedural violations of

federal urine collection and testing regulations.

il

PARTIES TO THE PROCEEDINGS

Petitioner is Christopher J. Parry. Respondents are-

LabCorp Occupational Testing Services, Inc., f/k/a National

Laboratory Center, Inc., operating under the service mark

of Med Express; Mohawk Motors of Michigan, Inc.;

Austintown Ambulatory Emergency Room, Inc.; and Drug

Free, Inc.

STATEMENT PURSUANT TO RULE 29.6

Respondent LabCorp Occupational Testing Services,

Inc., f/k/a National Laboratory Center, Inc., operating under

the service mark of Med Express, is a wholly owned

subsidiary of Laboratory Corporation of America Holdings,

which is a publicly traded company.

i

TABLE OF CONTENTS

Page

Questions Presented ......................... i

Parties to the Proceedings ..................... il

Statement Pursuant to Rule 29.6 ............... 1

IED oo nono cccctsesweccocccact. i]

Table of Cited Authorities ...........:........ vi

statement of the Case ..............cc cc ccccee l

Reasons for Denying the Writ ................. 3

I. The Petition Does Not Present Issues

Appropriate For Review By This Court. ... 3

A. There is a complete absence of

controversy among the circuit courts of

appeals regarding the existence of an

implied private right of action to enforce

federal drug testing regulations. ...... 3

B. Petitioner’s putative Fourth Amendment

claim was not before the district court.

A TERETE LE ELEC E PD Oe Teer ere +

C. Petitioner's contentions require a review

of factual findings adverse to Petitioner

by both the district court and the Sixth

GR era ene ee 5

iv

Contents

Page

Il. There ls No Implied Private Right Of Action

SE Os vhs eae eh ee meee 7

A. The text and structure of FOTETA

demonstrate that Congress did not intend

to create an implied private right of 3

action to enforce federal drug testing

ETT eT ere fee ee 8

B. Petitioner provides the Court with no

support for his claims of an implied

private right of action. ......../...... 10

C. DOT and FHWA regulations cannot

create an implied private right of action.

PET I ee re ae er er re erry 13

D. Petitioner's policy argument regarding

his alleged lack of a remedy fails. .... 14

Ill. Bivens Does Not Provide Petitioner A

mr Pe ie a Pr Pee 17

A. The Fourth Amendment is_ not

implicated by alleged procedural

violations of drug testing regulations. . 17

B. Special factors counsel hesitation in

recognizing a Bivens cause of action in

| EP ee ey ere rey eT 20

Contents

Page

C. Petitioner fails to state a claim for a

violation of his constitutional rights. . . 23

|. Petitioner’s random drug test did not

violate Petitioner’s constitutional

WR ina cca ee eee as 23

2. The collection of the second urine

specimen was constitutionally

PIII 05s See ere 25

et he gle ene een tt 27

vw

TABLE OF CITED AUTHORITIES

Page

Cases:

Abate v. Southern Pac. Transp. Co., 928 F.2d 167

(Fis COP. TOON 6 vc ckveseusveseus ere 3

Alexander v. Sandoval, — U.S. __, 121 S.Ct. 1511

(SOGE) ociecnccéucsenescuceube sacneeeeaee passim

Benavidez v. Citv of Albuquerque, 101 F.3d 620

(100s Cis. TSGEN vc cntheenesesesiolee ee 26

Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) |... passim

Bush v. Lucas, 462 U.S. 367 (1983) .............21, 22

California v. Sierra Club, 451 U.S. 287 (1981)... 11

Cannon v. University of Chicago, 441 U.S. 677

CUDTSS . cccubacescésasueceaeee ee 10

Carlson v. Green, 446 U.S. 14 (1980) 2.02... 2. 20,21

Central Bank of Denver, N_A. v. First Interstate Bank

of Denver, N.A., 511 U.S. 164 (1994) 22000... 14

Chappell v. Wallace, 402 U.S. 296 (1983) . 2... .. 21

Daniels v. Williams, 474 U.S. 327 (1986) .. 2... .. 20

"Po -

Cited Authorities

Page

Davidson v. Cannon, 474 U.S. 344 (1986) .....-. 20

Davis v. Passman, 442 U.S. 228 (1979) .......--. 21

Dodd v. City of Norwich, 827 F.2d 1 (2d Cir. 1987),

cert. denied, 484 U.S. ft). ) ee 20

Drake v. Delta Airlines, Inc., 147 F.3d 169 (2d Cir.

1998) tay Terr Tt:

FDIC v. Mever. 510 U.S. 471 (1994) ......------ 21

First Pacific Bancorp, Inc. v. Helfer, 224 F.3d 1117

(Sth Cir. 2000) .. 2... eee cece rece ee ececes 12

Foman v. Davis, 371 U.S. 178 (1962) .....------ 4

Ford v. Dowd, 931 F.2d 1286 (8th & 2. | re 26

Fraternal Order of Police, Lodge No. 5 v. Tucker,

868 F.2d 74 (3d Cir. 1989) ........----+--- + 26

Hammons v. Norfolk Southern Corp., 156 F.3d 701

(6th Cir. 1998) .. 22.6... ee ee ee eee teers 19

Karahalios v. National Fed'n of Fed. Employees,

Local 1263. 489 U.S. 527 (1989) .......-.---- 16

Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S.

‘Tt, . rrr rrr er 16

vill

Cited Authorities

Page

Merrell Dow Pharm., Inc. v. Thompson, 478 U.S.

| Pr ary Perret pry eras peer 9

Nauonal Treasury Employees Union v. Von Raab,

og he, ere 17, 18, 23, 24

Northwest Atrlines, Inc. v. Transport Workers, 451

of Wo f) PRR er reer rrr rere re 7)

Rutherford v. Cuy of Albuquerque, 77 F.3d 1258

Sy ee Ie 6a baa one ak san ewendaseewes 19

Schmeling v.§ NORDAM, 97 F.3d 1336 (10th Cir.

SE “Pek odo ncaa ka toe FOREN OED RS 3,16

Schwetker v. Chilicky, 487 U.S. 412 (1988) 2... .. rs op 2

Skinner v. Railway Labor Executives Ass'n, 489 U.S.

OG CAGED 6 oki eae ae net Arse 17, 18, 23, 25, 26, 27

Stueart v. Arkansas Police Comm'n, 945 S.W.2d

igh” Re) Pee Pee eee ae rere 24, 25

Thompson v. Thompson, 484 U.S. 174 (1988) 8

Touche Ross & Co. v. Redington, 442 U.S. 560

RS a od re Nac Coa Nakao ad oda ee ale 8,9, 13, 16

Transamerica Mortgage Advisors, lnc. v. Lewis, 444

a EP ENP SS Ci Sch eed a baven aes ee: 8, 16

Universities Research Assn., Inc. v. Coutu, 450 U.S.

PI ES foc ca rae ee kde wa ek cee owen 10

ix

Cited Authorities

Page

United States Constitution:

Fourth Amendment ...........--ceeeeceeeee: passim

TO. er errr re re 20

Fourteenth Amendment ........-.-.---+++-+085 20

Statutes:

SOU SC. 6 SOTA) ccc ck cess ved ccsscsvess 15

49 U.S.C. § S2U(DMAMA) «2.20.6 c cece reece enee 15

Tin toe C. ?, ea eremrre cee 15

rR Oe Some Bb | rrr Ser 14

Oe Some el) / | ari ee 14

as, Ee face cnwewadeses 7,9, 10, 11, 12, 14

208 Foam oc | rere pierre mas fir Pa

Y 3)k Vom & 2 |) Ere rere ye ree rere 7

Pub. L. No. 102-143, 105 Stat. ae re ee

Cited Authorities

Page

Other Authorities:

Enforcement Considerations, 54 Fed. Reg. 49,854

SE 5 SONOS ko oko be ec oe eee eee 16

oe ee eer ara mera en ey Bar oe ar rare ore D 7

cow a 8 ey are ste eee seeeneeee 7

et ee Se eee ree oy ak ie

OE; Fe OR FO 6 ok ae eee 15

a ee Ee | iS ) er renrern ny 26

OP ee © OPI kick dsb hve eens nea we 26

PO PA. § COLA in 6 ea oon wns ca vee 13

OOS RE ee) Pe a egrets ay piper ty 13

a ee OR Ber oe err rere rear rs 3

Fe 6 ee, nn oho eee ees 7

eS ee eres re eer ee ere rr rr 7

eS err ror rey 15

CEES TG ise oe Ae

MCTR CA Os 7

xl

Cited Authorities

Page

137 Conc. Rec. S6133-02 (Sept. 17, 1991) .... 11,12, 22

137 Cona. Rec. $13170-02 (Sept. 17, 1991) ...... 22

S. Rep. No. 265, 103d Cong., 2d Sess. 1 (1994) ... 11

Respondent LabCorp Occupational Testing Services,

Inc., f/k/a National Laboratory Center, Inc., operating under

the service mark of Med Express (“Med Express”),

respectfully submits its response to Christopher J. Parry’s

(“Petitioner”) petition for writ of certiorari.

STATEMENT OF THE CASE

Petitioner was an interstate truck driver. On August 6,

1997, Petitioner was selected for a random drug test as

required by Federal Highway Administration (“FHWA”)

regulations. Petitioner proceeded to Respondent Austintown

Ambulatory Emergency Room,-Inc. (“Austintown ER”’) to

submit a urine specimen. Prior to receiving Petitioner’s urine

specimen, the collection site attendant marked Petitioner’s

chain of custody form to indicate the temperature of

Petitioner’s urine specimen was “in range.” When the

collection site attendant picked up Petitioner’s urine

specimen, however, she noticed that the urine specimen was

hot to the touch. The collection site attendant took

Petitioner’s temperature and measured the temperature of

his urine specimen. Petitioner’s temperature was 98.2 degrees

Fahrenheit. The temperature of Petitioner’s urine specimen

was 104.6 degrees Fahrenheit.

After measuring the temperature of Petitioner’s urine

specimen, the collection site attendant corrected all but one

of the copies of the chain of custody form to indicate the

specimen was not within the proper temperature range. The

correction does not appear on the Petitioner’s copy of the

multi-part federal drug testing chain of custody form because

Petitioner had been given his copy prior to the time the

collection site attendant documented the precise temperature

of Petitioner’s urine specimen. As required by federal

4

regulation, the collection site attendant sealed and shipped

Petitioner's urine specimen to Med Express for testing even

though the temperature of the urine specimen did not match

Petitioner's body temperature. The collection site attendant

then informed Petitioner that he would be required to submit

a second, observed urine specimen. Petitioner left the facility

before submitting a second urine specimen. Petitioner was

disqualified as a FHWA interstate truck driver for interfering

with the testing process.

On January 27, 1998, Petitioner filed this lawsuit in the

United States District Court for the Northern District of Ohio.

On March 25, 1999, the district court granted summary

judgment to all movant-respondents and stayed the

proceedings as to two bankrupt-defendants (these defendants

are not party to these proceedings). Thereafter, on June 8,

1999, Petitioner filed a Motion for Leave to File a Second

Amended Complaint. The district court denied Petitioner's

motion on June 18, 1999. On July 15, 1999, Petitioner filed

his motion to certify the interlocutory grant of summary

judgment for appeal to the Sixth Circuit Court of Appeals.

In an opinion dated December 29, 2000, the Sixth Circuit

affirmed the district court’s summary judgment on each of

Petitioner's claims against Respondents and affirmed the

district court’s denial of Petitioner’s motion for leave to

amend.

3

REASONS FOR DENYING THE WRIT

I. THE PETITION DOES NOT PRESENT ISSUES

APPROPRIATE FOR REVIEW BY THIS COURT.

A. There is a complete absence of controversy among

the circuit courts of appeals regarding the existence

of an implied private right of action to enforce federal

drug testing regulations.

Petitioner asks the Court to review the Sixth Circuit’s

holding that no implied private right of action exists to

enforce FHWA regulations enacted pursuant to the Federal

Omnibus Transportation Employee Testing Act of 1991

(“FOTETA”). See Petition for Writ of Certiorari (“Pet.’’),

p. 9. Each United States court of appeals that has decided

whether an implied private right of action exists to enforce

federal drug testing regulations, however, has held that there

is no implied private right of action to enforce FOTETA.

See Pet., App. B-19; Drake v. Delta Airlines, Inc., 147 F.3d

169, 170-71 (2d Cir. 1998) (flight attendant had no private

right of action to enforce FAA drug-testing regulations);

Schmeling v. NORDAM, 97 F.3d 1336, 1344 (10th Cir. 1996)

(no private right of action to enforce 49 C.F.R. § 40.35),

Abate v. Southern Pac. Transp. Co., 928 F.2d 167, 168 (Sth

Cir. 1991) (Federal Railroad Safety Act provides no private

cause of action to enforce regulations implementing federally

mandated drug-testing programs set out in 49 C.F.R. part

40). There is no conflict between the Sixth Circuit’s decision

and a decision of this Court, or that of any other United States

court of appeals. Therefore, the Petition does not raise any

issue of public or national interest such that the Court should

review this case.

4

B. Petitioner’s putative Fourth Amendment claim was

not before the district court.

Petitioner also urges that the Sixth Circuit erred when it

held that Petitioner’s First Amended Complaint did not

contain fair notice of Petitioner’s putative Bivens’ claim and

that Respondents would have been unduly prejudiced by the

addition of such a claim. See Pet., p. 22. Petitioner contends

that he should have been granted leave to file a Second

Amended Complaint alleging violations of Petitioner’s

constitutional rights secured to him by the Fourth

Amendment under the limited constitutional tort recognized

by the Court in Bivens. Leave to amend need only be granted

in the absence of undue delay, bad faith or dilatory motive

on the part of the movant, repeated failures to cure

deficiencies by amendments previously allowed, undue

prejudice to the other party by virtue of allowance of the

amendment, or futility of amendment. See Foman vy. Davis,

371 U.S. 178, 182 (1962).

On June 30, 1998, after conducting extensive discovery,

Petitioner filed his Motion for Leave to File his First

Amended Complaint. On July 6, 1998, the district court

granted Petitioner leave to file his First Amended Complaint.

The district court suspended discovery in this matter on

August 4, 1998. As of September 16, 1998, the date on which

Petitioner filed his First Amended Complaint, each

Respondent had filed its dispositive motion on each of

Petitioner’s claims in this lawsuit. Despite Respondents’

pending dispositive motions and the cessation of discovery,

Petitioner did not plead a Bivens cause of action in his First

1. Bivens v. Six Unknown Named Agents of the Fed. Bureau of

Narcotics, 403 U.S. 388 (1971).

5

Amended Complaint. On September 28, 1998, Petitioner

filed a combined response to Respondents’ pending motions

for summary judgment. Petitioner did not request leave to

add his putative Bivens claim until June 8, 1999, over ten

months after the suspension of discovery and more than two

months after the district court had granted Respondents’

dispositive motions.

Petitioner relies upon Count IX of his First Amended

Complaint to argue that Respondents had “fair notice” of

Petitioner's putative Bivens cause of action. See Pet., p. 22.

Count IX, however, merely alleges that Respondents violated

FHWA and Department of Transportation (“DOT”) drug

testing regulations and makes no reference to any alleged

violation of Petitioner’s Fourth Amendment rights or a

Bivens cause of action. Furthermore, Petitioner’s First

Amended Complaint does not allege that Respondents were

federal actors engaged in federal action. Petitioner’s First

Amended Complaint did not provide Respondents with

notice of a Bivens cause of action, and was untimely and

prejudicial. The district court’s denial of Petitioner’s Motion

for Leave to File a Second Amended Complaint, and the

Sixth Circuit’s decision affirming that ruling, do not provide

any reason for review by the Court. ;

C. Petitioner’s contentions require a review of factual

findings adverse to Petitioner by both the district

court and the Sixth Circuit.

Petitioner contends that his proposed Second Amended

Complaint stating a Bivens claim would not have been futile

because the drug test made the basis of this lawsuit was

inherently unreasonable due to “various procedural

problems.” See Pet., p. 23. Petitioner’s claims of perceived

6

procedural errors in the collection of his random urine

specimen, however, require a review of factual determinations

by the courts below that were adverse to Petitioner. In

claiming that the random drug test made the basis of this

lawsuit was inherently unreasonable, Petitioner cites to a

litany of alleged deficiencies including a “time delay in

taking temperature, altering chain of custody forms, leaving

specimen unattended, ear thermometer placed in urine

specimen for temperature measurement, specific gravity

being measured in [collection site attendant’s] hand... .”

See Pet., p. 23.

Petitioner, however, completely ignores the record in

both courts that establish that the collection site attendant

measured the temperature of Petitioner’s random urine

specimen as being 104.6° F. See Pet., App. B-5; Pet., App. E-7.

Petitioner also ignores the lower courts’ findings that he was

required to submit a second urine specimen because the

temperature of Petitioner’s random urine specimen was

outside the range considered normal under DOT drug testing

regulations, and was more than six degrees hotter than his

own body temperature at the time he submitted the random

urine specimen.

Petitioner was disqualified for failing to provide a second

urine specimen. The temperature of Petitioner’s random urine

specimen is dispositive regarding a determination of the

appropriateness of requiring Petitioner submit a second urine

specimen. Petitioner asks this Court to review the facts in

the record below and overturn findings of both the district

court and the Sixth Circuit that are adverse to Petitioner.

Petitioner’s request fails to provide a reason for review by

the Court.

a

a .

Pe ee eS ee Pree

7

Il. THERE IS NO IMPLIED PRIVATE RIGHT OF

ACTION UNDER FOTETA.’

Petitioner brought this action claiming Respondents

violated FHWA drug testing regulations in the collection

and testing of his August 6, 1997 random drug test. In 1991,

Congress passed FOTETA, which amended the Federal

Aviation Act, the Federal Railroad Safety Act, and the

Commercial Motor Vehicle Safety Act to require drug testing

for transportation workers in safety-sensitive positions.

See Omnibus Transportation Employee Testing Act of 1991,

Pub. L. No. 102-143, 105 Stat. 952 (1992) (codified in relevant

part at 49 U.S.C. § 31306 (1996)). FOTETA directed the

Secretary of Transportation to promulgate mandatory drug

testing programs for commercial motor vehicle operators

such as Petitioner. See 49 U.S.C. § 31306 (1996). FOTETA

further directed the Secretary of Transportation to incorporate

the Department of Health and Human Services (“DHHS”’)

scientific and technical drug testing guidelines dated April

11, 1988, and any amendments to those guidelines, into the

DOT’s drug testing programs.’ See 49 U.S.C. § 31306(c).

2. On the facts of this case as alleged by Petitioner, and in the

absence of any conflict of law in the U.S. courts of appeals, on its

face, the Petition does not articulate any reason for review by the

Court. In an abundance of caution, however, Med Express will

address the lack of any substantive basis for Petitioner’s request for

review by the Court.

3. The DHHS procedures and requirements for drug testing

and specimen collection are codified at 49 C.F.R. part 40. Each of the

DOT operating administrations utilizes these specimen collection and

testing regulations. See 14C.F.R. § 121.457 & 14C.F.R. App. I (Federal

Aviation Administration); 49 C.F.R. § 653.61 (Federal Transit

Administration); 49 C.F.R. § 219.703 (Federal Railroad Administration);

49 C.F.R. § 382.105 (Federal Highway Administration).

8

A. The text and structure of FOTETA demonstrate that

Congress did not intend to create an implied private

right of action to enforce federal drug testing

regulations.

Petitioner contends that FOTETA provides him an

implied private right of action to enforce DOT drug testing

regulations. See Pet., p. 9. A private right of action to enforce

federal law must be created by Congress. See Alexander v.

Sandoval, U.S. __, 121 §. Ct. 1511, 1519 (2001); Touche

Ross & Co. v. Redington, 442 U.S. 560, 578 (1979) (remedies

available are those “that Congress enacted into law”). In

determining the existence of an implied private right of

action, Courts must interpret the provisions of the relevant

statute to determine whether the statute displays an intent

by Congress to create not just a private right, but also

a private remedy.* See Alexander, 121 S. Ct. at 1519;

Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S.

11, 15 (1979). The focal point in determining the existence

of a private cause of action is whether Congress, expressly

or by implication, intended to create a private cause of action.

See Transamerica, 444 U.S. at 15-16; Touche Ross & Co. v.

Redington, 442 U.S. 560, 575 (1979); see also Thompson v.

Thompson, 484 U.S. 174, 189 (1988) (Scalia, J., concurring)

(“[WJe effectively overruled the Cort v. Ash analysis in

Touche Ross {and Transamerica], converting one of its four

factors (congressional intent) into the determinative

factor.”).°

4. Statutory intent on this latter point is determinative.

See Alexander, 121 S. Ct. at 1519.

5. To the extent Petitioner relies upon the three other factors

enunciated by this Court in Cort v. Ash, those factors remain relevant

(Cont'd)

9

Congress’s intent can be determined from the text and

structure of a statute. See Alexander, 121 S. Ct. at 1522:

Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77,

94-95 n.31 (1981) (interpretive inquiry begins with the text

and structure of the statute, and ends once it has become

clear that Congress did not provide a cause of action).

Without the requisite congressional intent to create not just

a private right but also a private remedy under FOTETA,

Petitioner’s claim fails. See Alexander, 121 S. Ct. at 1519-

20. FOTETA is framed as a general mandate to the Secretary

of Transportation to establish drug testing programs for

transportation workers in safety-sensitive positions and

develop comprehensive testing and laboratory requirements

(Cont'd)

insofar as they assist in determining congressional intent. See Touche

Ross, 442 U.S. at 575-76. The Cort factors are: (1) whether plaintiff

is part of the class for whose special benefit the statute was passed;

(2) whether the legislative history indicates a congressional intent

to confer a private right of action; (3) whether a federal cause of

action would further the underlying purpose of the legislative

scheme; and (4) whether plaintiff's cause of action is a subject

traditionally relegated to state law. See Merrell Dow Pharm., Inc.

v. Thompson, 478 U.S. 804, 810-11 (1986). Petitioner has wholly

failed to cite the Court to any legislative history evidencing

congressional intent to create an implied private right of action under

FOTETA. Petitioner merely states, without substantiation, that the

“overarching goal of 49 U.S.C. § 31306 is to protect the safety of

the public and to ensure adequate protection and privacy of drivers,

employees, and owner/operators through drug and alcohol testing

regulations and rehabilitation programs.” See Pet., p. 10. This is

insufficient. Furthermore, Petitioner cites the Court to no support

for his contention that a private cause of action would further the

purpose of FOTETA'’s legislative scheme, or how this would be

relevant in light of Alexander. Lastly, Petitioner fails to cite the

Court to any support for his contention that his cause of action is

a subject traditionally relegated to state law.

10

for such programs. See 49 U.S.C. § 31306. Like the statutes

found not to create a right of action in Alexander

and Universities Research Assn., Inc. v. Coutu,S FOTETA

is phrased as a general directive to a federal agency.

See 49 U.S.C. § 31306. A statute phrased as a directive to

federal agencies provides little reason to infer a private

remedy in favor of individual persons. See Alexander, 121

S. Ct. at 1519-20; see also Cannon y. University of Chicago,

441 U.S. 677, 690-92 (1979) (“far less reason to infer a

private remedy” if a statute was drafted merely as a

prohibition against agency disbursement of public funds to

institutions not complying with federal law). The language

of FOTETA provides no support for the implication that

Congress intended to provide Petitioner a private right of

action to enforce federal drug testing regulations. Petitioner

has failed to articulate a compelling reason for review.

B. Petitioner provides the Court with no support for his

claims of an implied private right of action.

Petitioner makes the disingenuous contention that

because transportation workers are specifically named by

FOTETA, he is a member of the class of beneficiaries for

whom FOTETA was enacted. See Pet., p. 11. As an operator

of a commercial motor vehicle, Petitioner is a regulated

6. 450 U.S. 754 (1981). In Coutu, the Court determined whether

section one of the Davis-Bacon Act provided a private right of action

to enforce its provisions. See Coutu, 450 U.S. at 772. Although the

statute was designed to benefit a particular class, the Court found

that the enactment under consideration was framed as a general

prohibition or command to a federal agency. See id. at 771-72. The

Court held that because Congress framed the section as a directive

to a federal agency, the Act's language provided no support for the

implication of a private remedy. See id. at 772-73.

ae Se ee eee

1]

worker under FOTETA. See 49 U.S.C. § 31306. Statutes that

focus on the person regulated rather than the individuals

protected, however, create “no implication of an intent to

confer rights on a particular class of persons.” See Alexander,

121 S. Ct. at 1521 (quoting California v. Sierra Club, 451

U.S. 287, 294 (1981)). Furthermore, FOTETA’s legislative

history demonstrates that FOTETA was “designed to prevent

needless deaths attributable to the use of drugs and alcohol

by the operators of our transportation systems.” 137 Conc.

Rec. $6133-02, $6137 (Sept. 17, 1991) (statement of

Sen. Hollings).” FOTETA was not enacted for the benefit of

commercial motor vehicle operators.

In Alexander v. Sandoval, the Court decided whether an

implied private right of action existed to enforce federal

agency regulations promulgated under authority of Title VI

of the Civil Rights Act of 1964. See Alexander, 121 S. Ct. at

1521. The Court found that the statute under consideration

in Alexander authorized federal agencies to effectuate the

statute’s provisions by issuing rules and regulations, or orders

of general applicability, but was completely devoid of any

“rights-creating” language on behalf of the class of persons

protected. See Alexander, 121 S. Ct. at 1520-21. Likewise,

FOTETA is a directive to the Secretary of Transportation to

promulgate drug testing programs for transportation workers.

7. The legislative findings accompanying the original passage

of FOTETA remain applicable even though the provisions have since

been revised. The statement of purpose accompanying the 1994

revision to FOTETA notes that its purpose is “to restate in

comprehensive form, without substantive change, certain general

and permanent laws related to transportation and to enact those laws

as subtitles II, Ill, and V-X of title 49, United States Code, and to

make other technical improvements in the Code.” S. Rep. No. 265,

103d Cong., 2d Sess. 1 (1994).

12

FOTETA focuses neither on the individuals protected nor

even on the individuals being regulated, but on the agencies

that will do the regulating. See 49 U.S.C. § 31306 (1996);

see also Alexander, 121 S. Ct. at 1521. Like the statute in

Alexander, the focus of FOTETA is twice removed from any

congressional intent to create new rights for the persons

regulated by its provisions.

To the extent that Petitioner relies upon the Ninth

Circuit’s opinion in First Pacific Bancorp, Inc. v. Helfer,

224 F.3d 1117 (9th Cir. 2000), as support for his argument

that he has an implied private right of action to enforce DOT

drug testing regulations as a “specifically named beneficiary”

under FOTETA, Petitioner’s argument is expressly

undermined by the Court’s decision in Alexander v.

Sandoval.* Far from displaying congressional intent to create

new rights for regulated workers such as Petitioner, FOTETA

focuses on those agencies effectuating a “drug testing

program ... crucial to public safety.” See 137 Conc. REc.

S6133-02, $6138 (Sept. 17, 1991) (statement of Sen.

Danforth). Petitioner has failed to identify a compelling

reason for granting Certiorari in this appeal.

8. Petitioner’s reliance on First Pacific Bancorp, Inc. v. Helfer

is misplaced. 224 F.3d 1117 (9th Cir. 2000). The issue in First

Pacific was whether a federal statute gave shareholders of a bank in

FDIC receivership a private right of action against the FDIC to

compel it to make available to such shareholders FDIC-prepared

annual reports of receivership as provided for by the text of the

statute. See First Pacific, 224 F.3d at 1122. It is doubtful that the

Ninth Circuit would concur with Petitioner’s contentions regarding

its holding in First Pacific, given the court’s express recognition

that general directives to federal agencies carry “no implication of

an intent to confer rights on a particular class of persons.” See First

Pacific, 224 F.3d at 1122-23 (citation omitted).

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13

C. DOT and FHWA regulations cannot create an

implied private right of action.

Petitioner contends that certain provisions of DOT drug

testing regulations and interpretive guidelines contain

“rights-creating” language and therefore must be privately

enforceable. See Pet., p. 19. Specifically, Petitioner relies

upon a FHWA regulation that mandates transportation

employees be provided information explaining drug testing,

and a DOT drug testing regulation that states that

transportation employees may not be required to waive

negligence by others.’ See Pet., p. 20. An agency regulation,

however, cannot create a private right. See Alexander v.

Sandoval, 121 S. Ct. 1522; Touche Ross, 442 U.S. at 577

n.18 (“[T]he language of the statute and not the rules must

control”). Petitioner’s argument that DOT drug testing

regulations and interpretive guidelines contain “rights-

creating” language and are consequently privately

enforceable therefore skips an important analytical step.

See Alexander, 121 S. Ct. at 1522.

The Court recently re-affirmed that agency regulations

cannot imply the existence of a private cause of action.

See Alexander, 121 S. Ct. at 1522. In the absence of

congressional intent to provide a private right of action, no

amount of “rights-creating” language in agency regulations

©. “The employee may not be required to waive negligence on

the part of any person participating in the collection, handling or

analysis of the specimen or to indemnify any person for the

negligence of others.” 49 C.F.R. § 40.25(f)(22)(ii) (1997). Petitioner

also relies upon a DOT drug testing regulation that states that the

quantification of test results may be disclosed “to the decisionmaker

in a lawsuit, grievance, or other proceeding.” See 49 C.F.R.

§ 40.29(g)(3) (1997).

14

will create one. See id. (“Agencies may play the sorcerer’s

apprentice but not the sorcerer himself.’’).'° The language

relied upon by Petitioner in DOT and FHWA regulations

does not manifest an intent by Congress to create a private

right of action to enforce federal drug testing regulations.

Therefore, Petitioner has failed to identify a compelling

reason for granting review in this case.

D. Petitioner’s policy argument regarding his alleged

lack of a remedy fails.

Petitioner misstates the law when he alleges that there

are no enforcement mechanisms available to drivers

aggrieved by alleged violations of the drug-testing

regulations, thereby leaving individuals such as Petitioner

without a remedy. See Pet., p. 17. An individual may make a

complaint of alleged violations of the drug testing regulations

to the Secretary of Transportation. The Secretary is required

to investigate nonfrivolous written complaints regarding

substantial violations of commercial motor carrier safety

regulations. See 49 U.S.C. § 31143(a) (1996). The Secretary

may receive evidence, issue subpoenas, and conduct hearings

to determine the merits of such complaints. See 49 U.S.C.

§ 31133(a) (1996 & 2000 Supp.). If the Secretary finds

10. Furthermore, Petitioner cannot bring a lawsuit pursuant to

a federal statute for alleged violations of DOT or FHWA regulations,

where the alleged violations are not specifically prohibited by the

text of the statute. See Alexander, 121 S. Ct. at 1522 (emphasis

added); see also Central Bank of Denver, N.A. v. First Interstate

Bank of Denver, N.A., 511 U.S. 164, 173 (1994) (a “private plaintiff

may not bring a [suit based on a regulation] against a defendant

for acts not prohibited by the text of [the statute]”). Drug testing

-and collection procedures are not part of the text of FOTETA.

See 49 U.S.C. § 31306.

:

15

a violation, the Secretary is required to inform the party in

violation of DOT safety regulations what action might be

taken in order to abate the violation. See 49 U.S.C.

§ 521(b)(1)(A) (2000 Supp.). The Secretary may also impose

civil penalties on parties found to be in violation of DOT

safety regulations, after notice and an opportunity for a

hearing. See 49 U.S.C. § 521(b)(2) (2000 Supp.). The

Secretary may also bring civil actions to enforce DOT safety

regulations against commercial motor carriers. See 49 U.S.C.

§ 507(a)(2) (1996).

The FHWA’s regulations reflect Congress’s express

provision for enforcement of motor carrier safety regulations.

See 49 C.F.R. part 386. The FHWA provides administrative

procedures and rules for proceedings

to determine whether any motor carrier, its agent,

employee or other person subject to the

jurisdiction of the FHWA under [the Commercial

Motor Vehicle Safety Act and the Motor Carrier

Safety Act] has failed to comply with any

provision or requirements of those statutes or

regulations issued under them and, if such a

violation is found to issue an appropriate order to

compel compliance with the statute or regulation,

assess a civil penalty, or both.

See 49 C.F.R. § 386.1. Petitioner had a remedy for

his perceived wrongs. He could have filed a complaint with

the Associate Administrator of the FHWA regarding

his claims of alleged violations of drug testing regulations.

See 49 C.F.R. § 386.12. He chose not to do so.

16

The DOT’s comprehensive statutory enforcement

mechanism is evidence of congressional intent as to who

has the power to enforce DOT drug testing regulations."'

See Schmeling v. NORDAM, 97 F.3d 1336, 1344 (10th Cir.

1996). Furthermore, the express provision of a comprehensive

remedial scheme is some evidence that Congress intended

to preclude other remedies. See Karahalios v. National Fed'n

of Fed. Employees, Local 1263, 489 U.S. 527, 533 (1989)

(““[W ]here a statute expressly provides a remedy, courts must

be especially reluctant to provide additional remedies. .. .

In such cases, ‘[i]n the absence of strong indicia of contrary

congressional intent, we are compelled to conclude that

Congress provided precisely the remedies it considered

appropriate.’ ’). Without congressional intent to provide a

private remedy, a private cause of action does not exist and

courts may not create one, no matter how desirable a private

remedy may be as a policy matter, or how compatible such

an action may be with the purpose of the statute.

See Alexander, 121 S. Ct. at 1520; see also Massachusetts

Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 145, 148 (1985);

Transamerica, 444 U.S. at 23; Touche Ross, 442 U.S. at 575-

76. Petitioner has failed to identify a reason for review by

the Court.

11. “The six operating administration rules to which part 40

{drug testing] procedures apply are part of existing statutory and

regulatory systems. Generally, they will be enforced in the same

way as the rest of those systems. For example, FAA and FHWA

personnel inspect the equipment and records of the carriers they

regulate. If they find rule violations, they may initiate enforcement

proceedings and impose civil penalties. The FAA and FHWA

personnel would add review of compliance with drug testing

requirements to the other checks they make of employers’

compliance with safety rules.” Enforcement Considerations, 54 Fed.

Reg. 49,854, 49,865 (December 1, 1989) (emphasis added).

17

Il. BIVENS DOES NOT PROVIDE PETITIONER

A REMEDY.

A. The Fourth Amendment is not implicated by alleged

procedural violations of drug testing regulations.

Petitioner alleges that the random drug test made the

basis of this lawsuit was inherently unreasonable due to

violations of drug testing regulations during the collection

of his urine specimen. See Pet., p. 23. Petitioner argues that,

under Bivens, he is therefore entitled to recover money

damages from Respondents for alleged violations of his

rights under the Fourth Amendment. See Pet., p. 22.

Petitioner has never, however, alleged that his selection for

the random drug test made the basis of this lawsuit violated

his constitutional rights. Upon de novo review of the record

in this lawsuit, the Sixth Circuit held that even if Petitioner

had been allowed to make a Fourth Amendment claim, on

the facts of this lawsuit, such a claim would fail to state a

claim for which relief could be granted. See Pet., App.

B-14-B-15.

This Court has held that suspicionless drug testing of

employees in safety-sensitive jobs is consonant with the

Fourth Amendment where the testing is part of a systematic,

uniformly applied testing program. See National Treasury

Employees Union v. Von Raab, 489 U.S. 656 (1989); Skinner

v. Railway Labor Executives Ass’n, 489 U.S. 602 (1989).

In Skinner and Von Raab, the Court concluded that the drug

testing at issue was permissible without the usual protection

of a warrant based on probable cause, and even without “any

measure of individualized suspicion.” See Von Raab, 489

U.S. at 668; Skinner, 489 U.S. at 633. In Skinner, railroad

employees’ privacy expectations, which were limited

18

because of the industry’s pervasive regulation, were

outweighed by the government’s compelling interest in

ensuring the safe operation of the rails. See Skinner, 489

U.S. at 633. In Von Raab, the Court similarly found that the

government’s interests in safety and the integrity of its

borders outweighed the individual privacy interests of

customs officials who carry firearms or are involved in drug

interdiction. See Von Raab, 489 U.S. at 668.

In both of these cases, “the circumstances justifying

toxicological testing and the permissible limits of such

intrusions [we]re defined narrowly and specifically” by the

drug testing programs at issue. Skinner, 489 U.S. at 622;

Von Raab, 489 U.S. at 667 (citing Skinner, supra). The Court

found that because “minimal discretion [was] vested in those

charged with administering the program,” a search warrant

authorized by a neutral magistrate is less crucial than in other

Fourth Amendment contexts. Skinner, 489 U.S. at 622;

see also Von Raab, 489 U.S. at 667 (every employee seeking

a transfer to a covered position knows that he must take a

drug test, and is likewise aware of the procedures the Service

must follow in administering the test). Petitioner does not

contend that his selection for the drug test made the basis of

this lawsuit was contrary to a systematic, uniformly applied

testing program. See Pet., p. 28. Petitioner contends that

alleged violations of DOT urine specimen collection

procedures made an otherwise permissible search

unreasonable under the Fourth Amendment.

In Drake v. Delta Airlines, Inc., the Second Circuit

examined the difference between the plaintiff's claims of

alleged violations of drug testing procedures and his claim

that his selection for a random drug test was not truly random.

147 F.3d 169, 171-72 (2d Cir. 1998). In analyzing the

19

plaintiff's claims, the Second Circuit held that the plaintiff's

allegations of violations of DOT drug testing regulations

failed to state a claim for which relief may be granted because

FOTETA does not provide an implied private right of action.

See id. at 170-71. In reviewing the plaintiff's complaint,

however, the Second Circuit found that the plaintiff's

pleadings could be construed to allege that the plaintiff's

selection for the drug test made the basis of the lawsuit

was not randomly administered. See id. at 172. The Second

Circuit held that the plaintiff's allegation that he was not

randomly selected for testing pursuant to a systematic,

uniformly applied drug testing program was sufficient to

make out a prima facie claim of unreasonableness under the

Fourth Amendment. See id.

In Drake, the Second Circuit properly draws the

distinction between: (1) an employer’s impermissible

exercise of discretion in requiring a transportation employee

to submit to a drug test contrary to a systematic, uniformly

applied random selection program, and (2) alleged violations

of urine specimen collection and testing regulations after a

properly random selection. See Drake, 147 F.3d at 171-72.

An allegation of an abuse of the former is sufficient to make

out a prima facie claim of unreasonableness under the Fourth

Amendment. See Drake, 147 F.3d at 172; see also Hammons

v. Norfolk Southern Corp., 156 F.3d 701, 702 (6th Cir. 1998)

(allegation that plaintiff was subjected to twenty-four random

drug tests in year and a half); Rutherford v. City of

Albuquerque, 77 F.3d 1258, 1261 (10th Cir. 1996) (officials

departed from substance abuse policy and wrongfully

exercised discretion in deciding plaintiff should be tested).

An allegation of the latter fails to state a claim for which

relief may be granted. See Drake, 147 F.3d at 170-71.

Petitioner’s claim of alleged violations of DOT regulations

20

does not make out a prima facie claim of constitutional

injury. Petitioner complains only of alleged violations of

DOT and FHWA drug testing regulations. Petitioner has

therefore failed to identify a compelling reason for review

in this case.

B. Special factors counsel hesitation in recognizing a

Bivens cause of action in this context.

Petitioner argues that Bivens provides him a remedy for

alleged procedural violations of DOT drug testing

regulations. See Pet., p. 22. A Bivens remedy does not lie in

two situations: (1) where Congress has provided an equally

effective alternative remedy and declares it to be a substitute

for recovery under the Constitution, and (2) where, in the

absence of affirmative action by Congress, there are special

factors that counsel hesitation. Carlson v. Green, 446 U.S.

14, 18-19 (1980).'* In each instance that the Court has

extended the scope of Bivens, as in Bivens itself, the Court

has found that there were no “special factors counseling

hesitation in the absence of affirmative action by Congress,”

12. Negligence will not generally serve as the basis for a claim

for violations of constitutional rights secured by the Fourth and Fifth

Amendments. See Davidson v. Cannon, 474 U.S. 344, 347 (1986)

(where a government official is merely negligent in causing the

injury, no procedure for compensation is constitutionally required);

see also Daniels v. Williams, 474 U.S. 327, 330-31 (1986) (mere

lack of due care by a state official cannot “deprive” an individual of

life, liberty, or property under the Fourteenth Amendment); Dodd

v. City of Norwich, 827 F.2d 1, 3 (2d Cir. 1987), cert. denied, 484

U.S. 1007 (1988) (Fourth Amendment proscribes only unreasonable

searches and seizures, not those conducted in a negligent manner).

To the extent Petitioner attempts to use Bivens as an end-run around

the absence of an implied private right of action under FOTETA,

his contentions should be summarily dismissed.

21

no explicit statutory prohibition against the relief sought,

and no exclusive statutory alternative remedy. See Davis v.

Passman, 442 U.S. 228, 246-47 (1979); Carlson, 446 U.S.

at 18-20. The concept of special factors counseling hesitation

in the absence of affirmative action by Congress includes

“an appropriate judicial deference to indications that

congressional inaction has not been inadvertent.”

See Schweiker v. Chilicky, 487 U.S. 412, 423 (1988).

In recent decisions, the Court has “responded cautiously to

suggestions that Bivens remedies be extended into new

contexts.” FDIC v. Meyer, 510 U.S. 471, 484 (1994) (citing

Schweiker, 487 U.S. at 421).

“When the design of a government program suggests

that Congress has provided what it considers adequate

remedial mechanisms for constitutional violations that may

occur in the course of its administration, the Court has

declined to create additional Bivens remedies.” Schweiker,

487 U.S. at 423."* In this case, there is more than a suggestion

13. The absence of statutory relief for a constitutional violation

does not, by itself, give rise to an implied damage remedy.

See Schweiker v. Chilicky, 487 U.S. 412, 421-22 (1988); see also

Chappell v. Wallace, 462 U.S. 296, 304-05 (1983) (no implied

damage remedy available even in the absence of a meaningful

statutory remedy).

14. In Bush v. Lucas, the Court refused to create a Bivens action

even though it assumed a First Amendment violation with relation

to an adverse employment action and acknowledged “existing

remedies do not provide complete relief for the plaintiff.” See Bush

v. Lucas, 462 U.S. 367, 388 (1983). In Schweiker v. Chilicky, the

Court again refused to create a Bivens action for alleged due process

violations in the denial of Social Security disability benefits.

See Schweiker, 487 U.S. at 429. In refusing to extend Bivens

(Cont'd)

22

in the “design” of the DOT drug testing program that

Congress provided what it considered adequate remedial

mechanisms for violations that may occur in the course of

the administration of those programs. Congress created a

comprehensive statutory enforcement scheme designed to

ensure compliance and to redress violations of those

regulations created by the DOT. See discussion, supra. The

safeguards provided by Congress in promulgating FOTETA

“include a requirement that testing follow Department of

Health and Human Services guidelines; that initial screening

tests be followed up by confirmatory tests by laboratories

that meet rigorous certification standards, and that the

confidentiality of the results and medical histories be

protected.” 137 Conc. Rec. $13170-02, $13172 (Sept. 17,

1991) (statement of Sen. Hollings). The legislative history

of FOTETA therefore establishes that Congress considered

the adequacy of the safeguards built in to the DHHS

certification process and federal workplace drug testing

procedures, and judged the regulatory enforcement authority

of the DOT operating administrations sufficient to prevent

and, when necessary, remedy violations of employee's rights

under the DOT drug testing program. Petitioner asks the

Court to extend a Bivens remedy into this heavily regulated

realm of commercial transportation. The Court should decline

Petitioner's invitation “to create a new substantive legal

liability without legislative aid because . . . Congress is in a

better position to decide whether or not the public interest

would be served by creating it.” See Bush v. Lucas, 462 U.S.

367, 390 (1983) (citation omitted).

(Cont'd)

remedies in Schweiker and Bush, the Court found the Bivens remedy

displaced because Congress had legislated an elaborate and

comprehensive remedial scheme. See Schweiker, 487 U.S. at 425;

Bush, 462 U.S. at 388.

23

C. Petitioner fails to state a claim for a violation of his

constitutional rights.

1. Petitioner’s random drug test did not violate

Petitioner’s constitutional rights.

Petitioner’s allegation of “various procedural problems”

during the collection of his urine specimen does not implicate

his rights under the Fourth Amendment. See Pet., p. 23.'°

This Court has acknowledged the vital governmental interest

in ensuring the sobriety and fitness of operators of dangerous

instrumentalities or equipment such as Petitioner.

See Skinner, 489 U.S. at 628. “[W]here the privacy interests

implicated by the search are minimal, and where an important

governmental interest furthered by the intrusion would be

placed in jeopardy by a requirement of individualized

suspicion, a search may be reasonable despite the absence

of such suspicion.” Skinner, 489 U.S. at 624; see also Von Raab,

489 U.S. at 665-66. The drug testing regulations codified at

49 C.F.R. part 40 were considered by this Court in Von Raab to

the extent they supplemented or displaced the Commissioner

of Customs’ directive. See Von Raab, 489 U.S. 661 n.1. To

the extent these regulations were not considered by this Court

in Von Raab, the drug testing regulations codified at

15. One of Petitioner’s complaints regarding the collection of

his random urine specimen is that there was an alleged “time delay

in taking [the] temperature” of the urine specimen. See Pet., p. 23.

Although there is no evidence to support this assertion, any delay in

measuring the temperature of Petitioner's urine specimen would have

resulted in a lower temperature. As it was, the urine specimen

provided by Petitioner was measured as being 6.4° F higher than

his body temperature at the time the specimen was submitted, which

1s a reasonable basis to suspect that Petitioner’s urine specimen had

been adulterated.

24

49 C.F.R. part 40, and in force as of 1997, closely track the

regulations sanctioned by this Court in that case. See 489

U.S. at 672-73 n.2. Petitioner alleges only procedural

violations of those urine specimen collection regulations.'°

In an effort to make a colorable claim under the Fourth

Amendment, Petitioner relies heavily upon the Arkansas

Supreme Court’s decision in Stueart v. Arkansas Police

Comm 'n.'’ See Pet., p. 25. Stueart involved a state employee’s

challenge of the state police commission’s decision to affirm

his termination for testing positive for a controlled substance.

See Stueart, 945 S.W.2d at 378. In Stueart, the Arkansas

Supreme Court reviewed that commission’s decision and

found that the commission’s decision was based upon

administrative findings that were not made 1n accordance with

required agency procedure. See id. The Arkansas Supreme

Court overturned the commission’s decision because the

commission ignored its own rules in upholding the plaintiff’s

termination. See id. at 379. Stueart merely reiterates an Arkansas

rule of law that a decision of a state administrative agency

will be overturned if the substantial rights of an

administrative petitioner are prejudiced by administrative

findings made upon unlawful procedure. See id. at 380."*

16. One of Petitioner’s perceived procedural violations of the

regulations was the use of an “ear thermometer” to measure the

temperature of his urine specimen. See Pet., p. 23. Petitioner’s

complaint regarding the method of temperature measurement is

irrelevant. Both of the courts below found that Petitioner’s urine

specimen was accurately measured as 104.6° F.

17. 945 S.W.2d 377 (Ark. 1997).

18. The Stueart court expressly found that numerous procedural

violations in the collection of the urine specimen at issue did not

(Cont'd)

25

The Stueart court did not hold that a violation of Arkansas

drug testing regulations constituted a violation of the

plaintiff's Fourth Amendment rights. See id. The Stueart

Opinion is inapposite to Petitioner’s factual and legal

allegations in this lawsuit. Petitioner was disqualified for

failing to submit a second urine specimen after the

temperature of his random urine specimen was measured as

being outside the range of 90°-100° F. Petitioner presents

the Court with no support for his contention that alleged

violations of DOT drug testing regulations violated his

constitutional rights and has therefore failed to identify any

reason for review in this case.

2. The collection of the second urine specimen was

constitutionally permissible.

Petitioner contends that the requirement that he submit

a second urine specimen was based upon non-existent

regulations and was therefore unreasonable. See Pet., p. 28.'"

(Cont'd)

affect the reliability of the drug test where the procedural violations

were cured by subsequent testimony. See Stueart, 945 S.W.2d at

379. Similarly, in this lawsuit, the collection site attendant testified

that she initially made an error regarding the temperature of

Petitioner's random urine specimen and further testified as to the

steps she took to correct and document the error. See Pet., pp. 3-4.

19. Med Express does not read Petitioner’s argument as a facial

challenge to individualized “reasonable suspicion” drug testing.

FOTETA does, however, provide for drug testing upon individual

suspicion of drug use. See 49 U.S.C. § 31306(b). If Petitioner is

making a facial challenge to drug testing based upon individualized

suspicion, such testing of transportation employees in safety-sensitive

positions is consonant with the Fourth Amendment. See Skinner,

489 U.S. at 624 (drug test reasonable absent individual suspicion).

26

Petitioner, however, ignores the record in both courts below

that established Petitioner’s urine specimen was measured

as having a temperature of 104.6° F. See Pet., App. B-5;

Pet., App. E-7. DOT drug testing regulations require that

when there is reason to believe a specimen has been

adulterated, a second observed specimen “shall be obtained

as soon as possible.” See 49 C.F.R. § 40.25(f)(16) (1997)

(emphasis added). A urine specimen temperature outside the

range of 32°-38° C/90°-100° F constitutes reason to believe

that a specimen donor has altered or substituted the specimen.

See 49 C.F.R. § 40.25(f)(13) (1997). Having reason to believe

the specimen was adulterated, the collection site attendant

informed Petitioner that he would be required to provide a

second, observed urine specimen and that Petitioner was not

to leave the clinic. Petitioner left the clinic without providing

a second urine specimen. Petitioner was disqualified as a

‘DOT truck driver for failing to provide a second urine

specimen.

Drug testing of transportation workers in safety-sensitive

positions is consonant with the Fourth Amendment when

there is individualized “reasonable suspicion” of a violation

of the prohibition against controlled substances. See Skinner,

489 U.S. at 624 (drug test reasonable absent individual

suspicion); see also Drake, 147 F.3d at 172; Benavidez v.

City of Albuquerque, 101 F.3d 620, 624 (10th Cir. 1996);

Ford v. Dowd, 931 F.2d 1286, 1290-92 (8th Cir. 1991); Fraternal

Order of Police, Lodge No. 5 v. Tucker, 868 F.2d 74, 77

(3d Cir. 1989). Petitioner submitted a urine specimen with a

temperature of 104.6° F. See Pet., p. 3. Petitioner’s body

temperature at the time he submitted his random urine specimen

was measured as 98.2° F. See Pet., p. 3. Based upon these facts,

there was a reasonable basis for an individualized suspicion

that Petitioner violated FHWA drug testing regulations.

27

The FHWA’s compelling public safety and security

interest did not dissipate after Petitioner’s submission of his

random urine specimen. See Skinner, 489 U.S. at 628 (such

employees “discharge duties fraught-with such risks of injury

to others that even a momentary lapse of attention can have

disastrous consequences” and make judgments that “can

cause great human loss before any signs of impairment

become noticeable to supervisors or others”). Petitioner

therefore suffered no constitutional injury when he was

required to submit a second ufineé specimen based upon

individualized suspicion of adulteration after he provided a

urine specimen that was more than six degrees hotter than

his own body temperature. See Pet., p. 3. Petitioner has failed

to identify any basis for review in this case.

- CONCLUSION

Each United States court of appeals to decide whether

an implied private right of action exists to enforce federal

drug testing regulations has held that no such cause of action

exists. The district court’s decision to deny Petitioner leave

to amend his pleadings after entry of judgment against him

is not a reason for the Court to review this case. Petitioner’s

requested review of factual determinations by the courts

below is also not a reason for the Court to review this case.

Lastly, the limited implied constitutional tort recognized by

this Court in Bivens does not provide Petitioner a remedy

for alleged violations of federal urine collection and testing

regulations. The issues presented in the petition for writ of

certiorari do not raise issues of great public importance or

national interest such that this Court should devote its limited

time and resources to a review.

28

Med Express respectfully requests this Court deny this

Petition for a Writ of Certiorari.

D. FAYE CALDWELL

Counsel of Record

CALDWELL CLINTON

& Evans P.L.L.C.

2200 First City Tower

1001 Fannin

Houston, Texas 77002

(713) 654-3000

Respectfully submitted,

F. DANIEL BALMERT

Vorys, SATER, SEYMOUR

& PEASE, L.L.P.

2100 One Cleveland Center

1375 East Ninth Street

Cleveland, Ohio 44114

(216) 479-6100

Attorneys for Respondent LabCorp Occupational Testing

Services, Inc., f/k/a National Laboratory Center, Inc.,

operating under the service mark of Med Express