Petition for Writ of Certiorari — Drake v. Federal Aviation Administration

Supreme Court, U.S.

FILE®

02 975 DEC 21 200g

No.

OFFICE OF THE OLERK

In The

Supreme Court of the United States

Richard Drake

Petitioner

v.

t

Federal Aviation Administration

Respondent

On Petition For Writ Of Certiorari

To The United States Court Of Appeuls

For The District Of Columbia

PETITION FOR WRIT OF CERTIORARI

Richard W. Drake

== a Manassas, VA, 10495

703-369-1211

OCi 29 cur Pro se

OFFICE OF THE CLERK

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QUESTIONS PRESENTED

Statement:

In 1993 the Petitioner (Richard Drake), a flight

attendant for Delta airlines was accused of failing a

government mandated DOT drug test because his sample

allegedly contained an adulterant. Drake did not adulterate his

sample and refused to resign. He was terminated.

Drake filed suit against Delta Airlines for various

violations of the DOT drug testing regulations. The N.Y. Dist.

Ct. ruled and the Appeals court affirmed that employees have

no right of private action for violations of the Federal Random

Drug Testing Program because they have a right under U.S.C.

46101(a) to obtain relief through a complaint to the FAA.

Drake unsuccessfully pursued this rout for relief and

the DC Circuit ruled that employees have no right to relief

under an APA claim or any other rights for relief under

46101(a), the very relief the 2nd Circuit claimed he did have.

In a report to Congressman Wolf, the DOT itself

confirmed that under its drug testing program, 46101 offers no

relief for employees. The DOT also stated that employees

relief lies in civil action. Drake has been fighting for nine

years, not to prove his innocence, but to have the right to have

his case heard.

Question 1. Is the DOT Random Drug Testing Program in

violation of Drake’s Constitutional due process nghts because

it does not afford any due process or remedy for the violations

of the testing regulations even though those violations have

been found by the Supreme Court to be Constitutional

violations under the Fourth Amendment.

(i)

Question 2. Because the 2nd Circuit denied Drake the right to

a private right of action for violations of the DOT drug testing

program mainly because of his administrative right of action

under U.S.C. 46101(a) and the DC Circuit has now ruled that

Drake has no right under 46101 for a remedy of the testing

violations, is the DOT testing program a violation of Drake’s,

and all similarly situated non-union flight attendants,

Constitutional rights because of the total lack of any due

process.

Question 3. Does the FAA have “unbridled” right of discretion

as to enforcement ofthe testing regulations.

Question 4. If the FAA does have this right as expressed in

question 3 above, does this “unbridled” discretion place all

actions, (tortious, Constitutional and procedural violations)

beyond the pale of an APA claim, Even if the FAA has the

discretion to investigate or not investigate, does that discretion

extend to total protection from otherwise legitimate claims

under the APA. Such claims as, hiding and lying about

documented evidence of testing violations they found,

intentional fraud, and covering up gross misconduct by the

employer, the labs and the Medical Review Officer in regards

to the DOT drug testing program.

Question 5. Does the FAA’s right of discretion to investigate

protect it from the findings in Motor Vehicle Mfts, Ass’n._ V.

State Farm Mutual Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856,

2866, 77 L.Ed.2d 443 (1983)(agency must articulate a

satisfactory explanation for its action)

Question 6. Must the people that are required to give up a

Constitutional protection for the good of the public be assured

(ii)

of due process rights to protect them from the greater exposure

to harm the Constitutional protection was put in place to

prevent.

Question 7. Did the court enlarge the meaning of

Chaney, 470 US, 821, 830 (1985), and Citizens to Preserve

Volpe, 401 U.S. 402 (1971) and

misapplied them to this case.

Question 8. When the Court of Appeals hears the case of a pro

se litigant should the court be allowed to introduce, and then

base its decision on, a novel legal issue not raised by the

defense in its pleadings for which the pro se litigant would not

be prepared to defend and then allow the court to deny a

motion for a rehearing on that issue.

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LIST OF PARTIES

All parties appear in the caption of the case on the cover

page.

(iv)

TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY PROVISIONS. 3

STATEMENT OF THE CASE. ..0...0csssssscsccccsssssteseeeeeeeoessece 4-4

REASONS FOR GRANTING THE WRIT .ooeccccccccsoeeccc.. 10-20

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INDEX TO APPENDICES

APPENDIX A.1. Decision of District Court, District Of

Columbia

APPENDIX A...Decision of U.S. Court of Appeals, DC Cir.

APPENDIX B...Decision of U. S. Court of Appeals, DC Cir.

APPENDIX C...Decision of U.S. Court of Appeals, 2nd Cir.

TABLE OF AUTHORITIES

Bowles v. Seminole Rock & Sand 0., 325 U.S. 410, 65 S.Ct.

1215, 89 L.Ed. 1700 (1945)

Citizens to Preserve Overton Park Inc. V. Volpe, 401 U.S.

402 (1971)

DeShaney v, Winnebago Co.,489 U.S. 189 (1989)

Drake v. Delta Airlines, Inc, 923 F, Supp, 387

(E.D.N. Y.1996).

Drake v, Delta, 147 F3.d 169 (2d Cir. 1998)

Drake v. FAA, 291 F.3d 59 (D.C. Cir. 2002)

Drake v, FAA, CV 99-2790, 2000 U.S. Dist Lexis 22097

(D.D.C. July 31, 2000)

Drake v. FAA, No. 00-5328 (DC Cir. Mar. 16, 2001)

Drake v. FAA, CV 98-2758 ( D.D.C. July 31,2000) ,

Heckler v. Chanev, 470 U.S. 821, 830 (1985),

Mathews v. Eldridge, 425 US 319 (1976).

Vehi sn V :

463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77

L.Ed.2d 443 (1983)

Skinner v, Railway Labor Exec. Ass’n, 489 U.S. 607 109 S.

Ct. 1402(1989)

Webster v. Doe, 486 U.S. 592, 599-600 (1988)

OPINIONS BELOW

Drake vi, FAA, 291 F.3d 59 (D.C. Cir. 2002)

Drake y. FAA, CV 99-2790, 2000 U.S. Dist Lexis 22097

(D.D.C. July 31, 2000)

Drake vy. FAA, No. 00-5328 (DC Cir. Mar. 16, 2001)

Drake v. FAA, CV 98-2758 ( D.D.C. July 31, 2000)

Drake y. Delta Airlines, Inc., 147 F.3d 169 (2d Cir. 1998)

JURISDICTION

This petition is timely filed.

The decision of the lower court, DC Court of Appeals, was

issued on, March 16, 2001.

Petition for rehearing was denied on July 22, 2002. The 90

day period to petition for a writ of certiorari ends on

Saturday October 19th 2002, making Monday, October 21,

the last day to file.

cee epee mee one one

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

1. Fourth Amendment to the United States Constitution.

The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the

persons or things to be seized.

2. Fourteenth Amendment to the United States Constitution.

Section 1.

All persons born or naturalized in the United States and

Subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

3. Fifth Amendment to the United States Constitution.

No person shall be held to answer for a Capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in time

of War or public danger, nor shall any person be subject for the

same offence to be twice put in jeopardy of life or limb, nor

shall be compelled in any criminal case to be a witness against

himself, nor be deprived of Life, Liberty, or property, without

due process of law; nor shall private property be taken for

public use without just compensation.

3

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STATEMENT OF THE CASE

In November of 1993, Drake, a Delta flight attendant with 35

years of spotless service, was selected for the fourth time in a

six month period for random drug testing under the DOT drug

testing program.

Statistically it would take sixteen years to be selected

four times. No other Delta Flight attendant was selected, or

has been selected, that often. These four selections occurred

right after an employee management meeting in which Drake

was a very vocal participant.

Before the Delta take-over of Pan Am, Drake had not

only been one of the major organizers of the new Pan Am

union of flight attendants, but he was the first New York

chairman and the strike marshal for the new unions successful

job action. Delta flight attendants are still non-union.

At her recent deposition, a Delta manager, Diane

Tennihan, who was the head of Delta’s drug testing program,

admitted that she had been asked by other un-named

management people to add certain employees names to the list

of people selected at random for testing.

As aresult of Drake’s last test on November 28, 1993,

Drake was informed that an un-named adulterant had been

found in his sample and he was asked to resign. Drake asked

to be shown these lab results. All information was denied and

he was terminated.

Drake was denied unemployment and appealed for a

hearing. The hearing in New York, before an administrative

law judge, was attended by a Delta attorney and two Delta

management witnesses. The judge found that “Drake had not

altered his sample, did not use drugs and was not fired for

cause.” Drake received full unemployment but Delta refused

to reinstate him.

Drake filed suit against Delta in District Court in New

4

York,(Drake v. Delta Airlines, Inc., 923 F. Supp, 387

(E.D.N.Y.1996). His motion for discovery was denied and his

case was dismissed. Because he was pro se, he was given a

chance to amend his complaint. He did amend and it was

dismissed again. He appealed and the 2nd Circuit affirmed

that employees do not have a right to private action for

violations of the drug testing regulations based mainly on the

fact that Congress had established a “comprehensive

mechanism for relief” through 49 U.S.C. $ 46101(a). They

remanded for hearing on Drake’s Fourth Amendment rights.

They also suggested that Drake be provided counsel, (Drake v.

Delta Airlines Inc.,147 F.3d 169 (2d Cir. 1998). Sam

Maduegbuna, a~New York attorney took the case. Some

limited issues are still ongoing in that case.

Because of the 1998 finding by the 2nd Circuit that

Drake had a right to relief under a $ 46101(a), Drake filed a

complaint with the FAA for that relief. Days after the initial

meeting with the FAA drug enforcement people, Drake filed a

suit in the DC District Court claiming lack of due

process.(Drake v. FAA, No. 98-2758 D.D.C.)(FAA I) Despite

Drake’s complaints, Judge Lambreth took no action on Drake’s

case for over a year.

In 1998 the FAA launched an investigation of Drake’s

complaints of testing violations and issued a report (the Hecht

letter) which claimed that-Delta had not violated any DOT

regulations in Drake’s testing.

After exhausting all administrative remedy’s, Drake

filed suit against the FAA for not reporting evidence the FAA

had found, for lying in their report about what they had found,

for allowing Delta to violate the DOT testing rules, for entering

into a conspiracy with Delta to cover-up serious testing

misconduct, and for not providing Drake with the promised

protection of $ 46101(a), (Drake v. FAA, Civ. Act No. 99-2790

D.D.C.)(FAA II)

5

On July 31, 2000, Judge Lambreth suddenly resurrected

FAAI and dismissed both cases on the same day. Dismissing

FAA I, the due process case for failure to state a claim upon

which relief can be granted, finding that new regulations had

superseded the ones in effect when Drake pleaded his case.

Drake argued that the new ones did not address or change the

due process rights for employees but the court failed to

consider this fact.

The court also dismissed the FAA violation case,

FAAIL, on the bases of res Judicata even though Drake argued

that the events in the second case had not even occurred at the

time of filing the first case. |

Drake appealed both cases at once. The DC Circuit

affirmed the dismissal of FAA I, on March 16, 2000, which

included Lambreth’s finding that Drake had a night to relief

under $ 46101(a).

On May 31, 2002, In FAA II, the same Circuit found

that Drake’s “claims were improperly dismissed on res

judicata grounds.”. In the same decision, the DC Circuit then

dismissed Drake’s claims on the very opposite understanding

of $ 46101(a) that the same circuit had affirmed in FAA I.

Namely that $ 46101(a) does not offer relief.

FAA I, unquestionably and at length stated that Drake

has no right under $ 46101(a) and that the FAA has

“unbridled” discretion to do as it wishes under that title. This

dismissal included the above listed misconduct of the FAA

which included fraud and intentional misrepresentation of

discovered facts.

As a result, Drake filed this Petition because at the end

of the day, Drake and aii others similarly situated have no

avenue for relief for their employers and the FAA’s self serving

abuse of the DOT Drug Testing Program. The court findings.

have allowed the employers and the FAA the unquestioned

right to violate the DOT regulations at will. The employers

6

and the FAA know they can getaway with any violation or

abuse and have not hesitated to do so.

Seven years after his testing and two years after the

1998 FAA investigation, the Freedom Of Information

Act(FOIA) provided Drake with hard documented evidence

that:

1. The confirmatory test on Drake’s sample at a second

lab using GC/MS testing (the highest level)was negative not

positive for adulterants and drugs as claimed in court

documents by both Delta and the FAA.

2. One of the two documents, the DOT Custody And

Control Form, which had been sent to Drake in 1994, had been

Xeroxed, altered with white-out to eliminate the negative

finding, re-Xeroxed and provided to Drake claiming to

represent the original. The FAA knew this and intentionally

covered it up. The original, viewed by Drake for the first ti me

in the Deposition of Dr. Whaley(April 29, 2001), still had the

checkmark in the “negative “ box. at

3. There was no chain of custody used for Drake’s

sample as it was sent from lab to lab for testing. The DOT

Inspector General confirmed this in his report to Congressman

Wolf and the FAA still to this date has covered this up and

refused to take action. Drake will spare this court the

supportive argument that lack of a chain of custody is fatal to

any testing result regardless of whether it is positive or

negative.

“..Wwe identified deficiencies in its[the FAA’s]

investigation, and found that Mr. Drake raised valid questions

about the manner in which Delta handled his test...Notably, we

concluded that Delta’s Medical Review Officer (MRO) did not

demonstrate for the FAA that he reviewed the chain of custody,

as required under the regulations, or that certain required

records ever existed to document the transfer of Mr. Drake’s-

specimen from one specific laboratory to another.”*(DOT IG

7

report to Congressman Wolf, July 18, 2001)

4. The FAA blatantly lied in there written statements

to the DC District Court about the facts of Drake’s testing in

order to support their lack of action on his complaint. This was

before Drake was provided with the documents through the

FOIA, which made it impossible for him to defend himself.

5. The FAA knew about and allowed at least 17 other

major violations of the DOT testing they discovered during

their investigation of Drake’s case.

Every one of the numbered items above is well

documented by papers obtained from the FAA itself under the

FOIA. Even in light of the fact that Drake now has this hard

evidence, Both the FAA and the DOT have refused to act

because they know that Drake has no legal recourse.

To Date, all three, Delta Airlines, the FAA and the

DOT have managed to avoid nine years of repeated attempts by

Drake to take some sort of legal action to expose and remedy

this outrageous conduct by those administering the DOT drug

testing program.

The Supreme Court must understand that the above

facts are not presented in order to have this court rule on

Drake’s individual case, but only as an example of ripeness

for the relief sought in this petition.

If this court grants Drake and those similarly situated

some right to due process, Richard Drake, N.B. Varlota,

Yasuko Ishikawa, Julia Jones, Cheryl Dumas, Donna Baker,

Richard Whitman, and Edith Smith to name a few, will address

the testing violations during that due process and succeed or

fall based on a fair hearing.

All of the above named non-union employees from

various airlines have well documented proof of their

innocence. All of them have had their lives ruined, been

8

unable to get other jobs they are well qualified for and had to

endure the stigma and embarrassment before their family and

friends of being branded a druggie.

Duke Siotkas, a Delta pilot, whose case like Drake’s

was not auctioned by the FAA, is back at work with full back

pay and allowances because he was able to present his case to

the NTSB. The outrageous conduct in his testing, which

included the shredding and falsifying of lab reports, use of

testing equipment that was not acceptable for the type of

testing conducted, and rounding off of test results to the

nearest whole number that resulted in his failing the test he

actually passed, resulted in his being accused of submitting-a

substituted sample and being unemployed for 2 years.

The DOT and the FAA failed to act in his case. Only

through his right to due process was he able to establish his

innocence and clear his name, Flight attendants Varlota and

Ishikawa with the exact same problem with the exact same lab

had no rights and got no relief form the FAA.

This special group of non-union employees need, and

justifiable should have some form of due process.

REASONS FOR GRANTING THE PETITION

There are four main reasons for granting the instant petition.

1. Due process protections must be extended to citizens that are

subjected to intentional Governmental Constitutional

violations.

When the Government created the DOT Random Drug

Testing Program, it knowingly had to violate the

Constitutional right of those to be tested.(see Skinner v.

Railway Labor Exec. Ass’n, 489 U.S. 607 109 S. Ct.

1402(1989) at 1410:

“« that the breath , blood, and urine tests contemplated

by the FRA(regulations)are Fourth Amendment searches.”

Random drug testing violates the 4th Amendment because

there is no “probable cause” for the search.

Whenever the Government feels that something is so

important to the social good that it must violate the

Constitutional rights of a segment of the population in order to

effect that very important social good, it must make every

effort to protect that segment of the population from the added

exposure to damage the violated Constitutional right may

cause.

DeShaney _v. Winnebago Co.,489 U.S. 189 (1989)

supports this concept finding that, when the action of the state

makes one more vulnerable to harm, procedural correctness is

required.

Taking away a Constitutional protection from selected

citizens is a serious event and certainly makes one more

vulnerable to harm. If this were not true there would be no

need for the Constitutional protection in the first place. To

take away that Constitutional protection, then go to the effort

of putting in place very strict and narrow regulations to protect

/O

those people from abuse is an effort in the right direction. To

then prevent those people from any form of due process to

remedy the violations of those regulations is arguably civil

injustice but certainly a violation of the intent of DeShaney.

Even worse are abuses committed in the name of a

social good by those that are supposed to be administrating

them fairly. These should be considered abuses of an even

higher degree then usual because of the Constitutional

deprivation involved. It is like demanding that someone wear

a blind fold for the benefit of society then hitting him on the

head with a club and denying him the same right to a remedy

that is extended to every citizen that did not have to wear the

blindfold. Our blind folded man should receive equal

protection at least but certainly not less protection.

Due process protections must be extended to citizens

that are subjected to intentional Governmental Constitutional

violations such as Government mandated random drug testing.

2. Three Courts of Appeal have ruled on the issue of Drake’s

right to private action for violations of the DOT drug testing

program. They are in opposition to each other.

The 2nd Circuit affirmed the dismissal of Drake’s

complaints that addressed Delta’s violations of 49 CFR part 40

(the DOT drug testing regulations),

“...because there is no implied private right of action

for employees under those regulations.” Noting that:

“We note as did the district court, that Drake could

have sought redress of the alleged regulatory violations through

administrative avenues,...citing 49 U.S.C. $ 46101(a).” (Drake

v. Delta, 147 F3.d 169 (2d Cir.1998)

Drake pursued this remedy with the FAA even though

Drake had pleaded to the 2nd Circuit back in 1996, that

46101(a) does not offer relief to employees. 46101(a) is only

a process for the FAA to compel the airlines not to do it again

/}

and possibly fine the airlines. The New York District Court

and the 2nd Circuit rejected Drake’s position.

The D.C. Circuit went even further away from the 2nd

Circuits position then Drake had in 1996, finding that:

“The language of $ 46101(a)(3), which set the terms for

the FAA’s decision to dismiss Drake’s complaint without a

hearing, is highly discretionary. Indeed, a provision that

allows the Administrator to act when she “is of the opinion that

the complaint does not state facts that warrant an

investigation,” gives the FAA virtually unbridled discretion

over such decisions.” Drake v, FAA, 291 F.3d 59 (DC Cir.

2002) |

This opinion by the DC Circuit does two things. First,

it flies in the face of the 2nd Circuits decision that 46101 gives

Drake an administrative mechanism for relief. Second, it also

reverses Justice Kennedy’s Supreme Court finding that:

“Circumstances justifying toxicological testing and the

permissible limits of such intrusions are narrowly and

specifically defined by the regulations and doubtless are well

known to covered employees, and since there are virtually no

facts for a neutral magistrate to evaluate, in light of the

standardized nature of the tests and the minimal discretion

vested in those charged with administering the

program.”Skinner_v, Railway Labor Exec, Ass’n, 489 U.S.

607 109 S. Ct. 1402(1989):

Judge Edwards Circuit Court Opinion changes Justice

Kennedy’s “minimal discretion” into “unbridled discretion”

over the enforcement of the 7 and specifically defined

regulations.

Since the two Courts of appeal find a different

understanding and use of U.S.C. $ 46101, and Judge Edwards

seems to reverse Justice Kennedy, this Court should address

the question of; Does U.S.C. $ 46101(a) give Employees a

right to compel a fair and honest investigation of DOT drug

1a

testing violations, or is it subject to FAA unbridled discretion

thus leaving employees with no right to address Dot drug

testing violations and obtain relief? This decision also, as it

did in Drake’s case, eliminated any right of the employee’s to

question the violations of the FAA in the drug testing program

as well.

The DOT agency itself supports the DC Circuit’s

decision in FAA TI and the fact that Drake’s remedy lies ina

private lawsuit. The courts say go to the FAA. The FAA says

go to the court. The result is nowhere to go.

In the DOT IG report (signed by Kenneth Mead) to

Congressman Wolf the DOT noted as follows:

“The regulatory authority of the FAA (as well as DOT’s

other operating administrations) is limited to effecting

enforcement action (e.g., civil penalties) against employers

who violate the drug testing regulations, and does not extend

to providing personal relief for aggrieved employees.”(Wolf

report, page 4.)

And

~Mr. Drake’s avenue for personal relief in this matter

rests with his litigation against Delta, we are transmitting our

report of investigation with accompanying recommendations

to the Departmental Office of Drug & Alcohol Policy and

Compliance, as well as to the FAA, for appropriate action.”

(Wolf report, page 4.)

This court is urged to accede to the DOT’s

interpretation that Drake has no remedy under its regulations

or under $ 46101. The Supreme Court’s seminal decision in

wles v ,» 325 U.S. 410, 65 S.Ct.

1215, 89 L.Ed. 1700 (1945) established the basic principle that

an agency’s interpretation of one of its own regulations

commands substantial judicial deference. That interpretation

“becomes of controlling weight unless it is plainly erroneous

or inconsistent with the regulation.”

13

The testing regulations themselves specifically

contemplate lawsuits. The regulations contain many cites

concerning an employee’s right to bring a lawsuit for injury

arising from a drug test.

“The MRO may reveal the quantification of test results

to the employer, the employee, or the decisionmaker in a

lawsuit, grievance or other proceeding initiated by or on behalf

of the employee...”40.29(g)(3)

“The laboratory shall be required to maintain any

specimens known to be under legal challenge for an indefinite

period.”40.29(h)

“The laboratory shall disclose information related to a

positive drug test of an individual to the individual, the

employer, or the decisionmaker in a lawsuit, grievance or other

proceeding initiated by or on behalf of the individual...”40.35

“Another confidentiality issue concerns formal

proceedings (e.g. lawsuits, grievances, arbitrations) in which an

employee challenges action taken by an employer as the result

of a drug test...It would be unfair if in an adversarial

proceeding, one side had access to information which the other

did not.” 49 CFR part 40 page 49861(d)(1989)

The provisions of the regulations therefore leave little

doubt that challenges to the drug testing under the regulations

may he addressed in judicial and quasi-judicial forums,

including filing lawsuits.

3. Drake is aware of the “balancing” test formulated in

Mathews v. Eldridge, 425 US 319 (1976). In Drake’s case, the

action of being terminated for failing a DOT drug test in the

14

airline industry destroyed his 35 year spotless career. It also

branded him a drug user. This destroyed any chance of

employment in the airline industry as well as almost any

chance of employment at all. This would be true of any person

terminated under the DOT drug-program and in fact is true of

all the named employees listed above.

Pilots have the right to a hearing before the

NTSB(National Transportation Safety Board) because they

have a certificate. Many pilots have been returned to work

after a hearing before the NTSB because it was discovered that

gross errors and misconduct had been found in their testing.

Flight attendants do not have a certificate and do not have the

equal right to a hearing even though the errors and misconduct

are the same. The bottom line is that a fair adversarial hearing

can have great value in obtaining justice for innocent

employees.

The Government of course has no interest in unjustly

destroying the life of an innocent person. However that is

what is happening. Any system of law enforcement that simply

accuses a person, they are automatically found guilty, punished

severely and have no right to complain is an unjust system.

Non-union flight attendants, of which there are

thousands, should have the same rights under the government

drug program as pilots and union employees. Pilots have the

NTSB and union employees can file grievances.

4. Heckler v. Chaney may apply to the FAA decisions to abort

its investigation and not pursue Delta, but it does not apply to

its decision not to enforce its own regulations or publish lies

that harm Drake. Especially when the regulations involved

(Lies, Chain of Custody and fraud violations) have long

established legal norms in our society.

Both Heckler v, Chaney, and Overton Park, only apply to

situations where there is “No substantive legal criteria against

IS

which an agency’s conduct can be seriously evaluated.” These

cases only apply when “the courts have no legal norms

pursuant to which to evaluate the challenged action, and thus

no concrete limitations to impose on the agency’s exercise of

discretion.”

When the agency ‘lies” in its reports and clear

documented evidence support that they did lie, the question of

“legal criteria” has been met and neither Chaney or Overton

Park applies. When the FAA says that the chain of custody

was proper and complete and documented evidence prove it

was not, Chaney and Overton Park can not be used to dismiss

the APA claim.

Any court can rely on long established law about the

proper use or condition of a chain of custody. When the FAA

permits, and enters into a conspiracy to hide, the fact that a

copy of a federal document was Xeroxed, “Negative” was

changed with white-out and then re-Xeroxed and sent to Drake

fraudulently representing it as a copy of the original, Chaney

and Overton Park can not be used to block the APA claim that

the FAA failed to enforce their own rules. This is a vile abuse

of the intent of Chaney and Overton Park. There is “law” that

can be applied here.

This Court cannot say that it was ever the intent of any

cited court ruling to allow this level of agency misconduct. It

was never the intent to allow an agency to hide its abuse of

power behind an interpretation of the law involving

discretionary acts. | Where the court cites Chaney, to allow

the FAA to rely on its discretionary right, it only applies to its

discretion not to have a hearing and not to pursue Delta. It

does not protect it from all APA claims for misconduct and not

enforcing the DOT Drug Testing Rules. Especially when the

violations in question are not obscure but grounded on solid

established legal criteria.

The court should be made aware that the statuary requirement

lo

to “enforce” the drug testing rules is not part of 46101 which

deals with “investigation and punishment”. 46101 is only a

part of the FAA’s responsibilities of enforcement. Congresses

main direction for enforcement comes from Section 3 of the

Testing Act which compels the FAA to “enforce” the testing

rules.

The court did notice that there was a separation

between the FAA’s findings and the resultant actions it took.

However the court then tries to tie them together again on the

grounds that the result of one is the only use for the other. This

is totally untrue for two reasons.

First, that the FAA’s “factual findings were

inextricably intertwined with its decision not to issue a

compliance order”. This falls short of the complete situation

and completely disregards the issue of Drake’s innocence as a

result of that same investigation and the FAA’s misconduct.

Drake’s innocence is a much larger and more important issue

then fining Delta. It also completely disregards the FAA’s

motive to hide its own failures and misconduct in the testing

process. The testing program at Delta that the FAA is

responsible for is loaded with errors and illegal activity that the

FAA is allowing and the DOT IG pointed out. By shelving

EVERY complaint and investigation it is abusing its

discretionary power to bury investigation after investi gation by

simply saying “no violation occurred”. Did the Appeals Court

read the DOT’s own report to Congressman Wolf. The report

said “ no chain of custody ever existed”. The FAA said no

violations!!! What was the court thinking. The FAA’s factual

findings are intertwined with many motives and many results.

It is unfair to consider only one use of the factual findings and

use it to dismiss the others. It is unfair to point to only one

reason for the investigation, the pursuit of possible “action —

against Delta, when it is clear that there are many reasons for

the investigation including the most important one,

|'7

“maintaining the integrity of the testing program and its rules”.

The Courts opinion that

“the FAA’s decision, that the facts did not

show a violation of Part 40 was inseparable

from its decision to take no further prosecutorial

action against the carrier.”(Apl. Ct. Opinion, pg 17.)

is simply untrue. The FAA’s decision that the facts did not

show a violation are part and parcel of many other issues

affecting many other things. Especially when the DOT says

there were violations. The overarching result of the

investigation is the guilt or innocence of Drake. There are

many reasons and effects of the FAA’s intentional

misrepresentations in its investigation.

Second, as mentioned above, there is “law to apply” as

in the sense indicated by the Supreme Court in Overton Park.

The statute at issue does not give the FAA “virtually unfettered

discretion to do as it did”. No case has ever supported lying

about evidence, fraudulent alteration of evidence and

destruction of evidence.

The result of what the FAA did was a finding that

Drake was guilty of failing a drug test in which all the rules in

Part 40 were followed. Which is untrue. This finding has

nothing to do with 46101 and this is the real “intertwined”

reason for the investigation and clearly a reason to allow Drake

to proceed on his APA claims.

In any case, It was really unfair for the court to spring

Chaney on Drake when the FAA had not properly raised it in

their pleadings. He wasn’t prepared and until now did not fully

understand Chaney. A rehearing on the application of Chaney

and Overton Park to Drake’s case should be granted.

As the court correctly noted, the FAA has the power to

cancel Drake’s test if it finds violations of Part 40. Such a

finding would effectively clear Drake of having failed a

properly administrated drug test. 46101 does not address any

1g

discretion on the part of the FAA concerning enforcement or

investigation or the production of improper findings on the

issue of canceling Drake’s test for violations or the guilt or

innocence of Drake.

Webster v. Doe, 486 U.S. 592, 599-600 (1988) excludes

any blockage of an APA claim because the claimed improper

actions of the FAA infringes on Drake’s Fourth Amendment

protections.

In any case, Webster, 486 US at 603-4 excludes any

blockage of an APA claim because, as Supreme Court J ustice

Kennedy held in Skinner v, Railway Exec. 109 S.Ct 1402, 1989

, “The Fourth Amendment was applicable to drug...testing”

And “urinalysis at the direction of the Government and must

be considered a search under the F ourth Amendment.”

Therefore, denial of the protections as outlined in Part 40,

would be Fourth Amendment infringements the same as any

other “governmental search”, and not subject to agency

discretion under Webster. The testing rules implicate the

Fourth Amendment and are not subject to denial under

_ The court also failed to consider the fact that by

allowing the FAA to say that they found no violations of Part

40,(violations that are Fourth Amendment violations) they have

allowed the FAA to say that Drake is guilty of drug abuse.

For the above reasons the Opinion of the Appeals Court

Should be reversed and Drake’s Case against the FAA

remanded for trial.

5. Question (8) above stands apart from the entire issue of

drug testing. It applies to any pro se litigant(or an Amicus law

Student) that comes to oral argument before a court of appeals.

There appears to be no case on point. The main support for my

Position is the last part of Section one of the Fourteenth

Amendment and old fashion basic fairness.

Drake does not argue that the court Should not have the

1g

right to present new or novel case law at hearings. The court

must however not blind side a pro se litigant that is not familiar

with every major precedent case as an attorney may be. It is

hard enough for a lay person to try and present a case to the

court of appeals without being blind-sided by a completely new

defense that one may not be prepare for. Especially when it

becomes the controling issue upon which the courts decision

is based. This process denies the pro se litigant “equal

protection of the law” as expressed in the 14th Amendment and

is unquestionably unfair.

This court should require that in cases where a pro se

litigant is presented with issues and supportive case law that

were not raised by the opposition in its pleadings, the court

must provide the pro se litigant time to respond either in

writing or rehearing.

AO

CONCLUSION

For the reasons listed above, the

petition for a writ of

certiorari should be granted.

Respectfully submitted,

cat

Date: 21 October 2002

a]

ne et en ae ees we eee ae | -

No.

IN THE

SUPREME COURT OF THE UNITED STATES

RICHARD DRAKE -- PETITIONER

VS.

FAA --RESPONDENT

PROOF OF SERVICE

I, Richard Drake, do swear that on this date, October 21,

2002, per rule 29, I have served the enclosed PETITION

FOR A WRIT OF CERTIORARI on each party required by

first class mail, postage paid or by hand delivery to the

address listed below. Corrected copies of Appendix served

on (2fiz, OA.

Christy Slamowitz Solicitor General of the United States

United States Attorney Room 5614

555 4th St. NW Department of Justice

Room 10818 950 Pennsylvania Ave., NW

Washington, DC Washington, DC 20530-0001

20001

21 October 2002,

Richard Drake- Prose

No.

In The

Supreme Court of the United States

Richard Drake

Petitioner

V.

Federal Aviation Administration

Respondent

-On Petition For Writ Of Certiorari

To The United States Court Of Appeals

E For The District Of Columbia

APPENDIX

Richard W. Drake

10495 Butterfield St., Apt 31

Manassas, VA, 10495

703-369-1211

Pro se

MEAN DIN 0),

THE SUPREME COURT READERS OF JUDGE

LAMBRETH’S DISTRICT COURT DECISION MUST

BE AWARE THAT ALL OF THE FACTS PRESENTED

IN HIS OPINION WERE DISPUTED BY DRAKE IN

HIS APPEAL AND IN HIS ORIGINAL COMPLAINT.

THE COURT OF APPEALS HOWEVER IGNORED

THIS ISSUE IN IT DECISION AND CHOSE TO

ACCEPT THE UNTRUE UNSUPPORTED

STATEMENTS OF THE FAA AS OPPOSED TO

DRAKE’S DOCUMENTED FACTS.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

| RICHARD DRAKE, )

Plaintiff, _) Civil Action No. 99-2790

| (RCL)

v. )

FEDERAL AVIATION _)

ADMINISTRATION, FILED, July 31, 2000

)

Defendant.

MEMORANDUM OPINION

This matter comes before the court upon a complaint

filed by plaintiff Richard Drake against the Federal Aviation

Administration (“FAA”) seeking 1) a court order compelling

the FAA to conduct a “proper, fair investigation” of plaintiff s

complaint against Delta Airlines (“Delta”),2) a court order

requiring the production of reports and other pertinent

information from the FAA’s investigation of Delta, and 3) a

right of private action against the FAA. See Plaintiff's

Complaint (filed October 21, 1999). For the following reasons,

the FAA’s motion to dismiss will be granted.

I. Facts

|

On November 21, 1988, the FAA issued regulations

requiring airline employees who perform “safety sensitive”

tasks to submit to random drug tests. The Department of

Transportation (“DOT”) expanded the drug testing regulations

in 1989 to include flight attendants within the Category of

employees required to undergo testing. Soon thereafter. Delta

established a drug testing program in accordance with the FAA

mandate and randomly selected Richard Drake, a flight

attendant, to be tested on October 23, 1993. Under the testing

procedures, plaintiff submitted a urine sample to the

designated collector, who forwarded the sample to

CompuChem Laboratories. On November 4, 1993,

CompuChem informed Delta that plaintiffs urine sample was

unsuitable for testing due to the presence of glutaraldehyde,

and artificial chemical used to mask the presence of

amphetamines. To Confirm that Drake’s sample had been

adulterated with glutaraldehyde, Delta arranged for Drake’s

sample to be tested by a second laboratory, NorthWest

Toxicology. After NorthWest Toxicology confirmed the

Presence of glutaraldehyde, plaintiff was terminated on

December 29, 1993. Subsequently, plaintiff was granted a

formal hearing to assert his innocence, but in February 1994

Delta reaffirmed its decision to terminate plaintiff's

ot

employment. See Drake v. Delta Airlines, Inc., 923 F.Supp.

387, 389 (E.D.N.Y., 1996), aff'd in part and vacated in part.,

147 F.3d 169 (2d. Cir. 1998).'

1. Plaintiff brought suit against Delta Airlines in the United

States District Court for the Eastern District of New York after

he was fired from his job following the same drug test that is

at issue in this case. Drake claimed that the airline violated his

Fourth Amendment rights as well as his rights under the

Department of Transportation (DOT) drug testing regulations.

The court dismissed Drake’s suit against Delta Airlines after

finding that 1) no private right of action existed for violations

of the FAA’s drug regulations, and 2) the procedures followed

by the airline to examine plaintiff's urine sample did not

violate Drake’s Fourth Amendment nghts. Plaintiff appealed,

and the Court of Appeals vacated the judgment only insofar as

it dismissed Drake’s Fourth Amendment nghts. Plaintiff

appealed, and the Court of Appeals vacated the judgment only

insofar as it dismissed Drake’s Fourth Amendment claims,

ruling that the District Court’s 12(b)6 dismissal of these claims

was improper.

On August 20, 1994, plaintiff requested from Delta all

records pertaining to his drug test pursuant to 49 C.F.R. 40.37.

Both parties stipulate that Delta initially provided plaintiff with

only a portion of the relevant information. During a routine

investigation in January 2000, the FAA identified the specific

3

documents that were not originally disclosed and ordered the

airline to release them to plaintiff

Meanwhile, Drake had contacted management

personnel in the FAA’s Drug Abatement Branch with

numerous allegations of Drug Testing Act violations in

connection with the acquisition and examination of his urine

sample. On October 12, 1998, Drake submitted a written

request for the FAA to conduct an inquiry on his behalf. The

agency responded by rescheduling a routine annual inspection

of Delta and conducting a week-long investigation of the

airline, during which a seven-member FAA inspection team

failed to uncover any evidence of wrongdoing.

Four days later, plaintiff brought suit against the FAA

in United States District Court for the District of Columbia

seeking procedural due process rights for all employees

alleging violations of the federal testing regulations. See

Drake v, Federal Aviation Administration, Civil Action No. 98-

2758 (hereinafter Drake 1). Citing the pending lawsuit, the

FAA rejected a subsequent written request from plaintiff for all

information pertaining to the FAA investigation. The plaintiff

then filed this action on October 21, 1999 (hereafter Drake 2)

alleging that the FAA’s refusal to release this information,

coupled with the agency’s failure to corroborate his allegations

Lf

|

OO

against Delta indicated that the two organizations were

engaged in a conspiracy to cover up irregularities in Delta’s

drug testing procedures.

: Il. Analysis

| A. Plaintiff's Claim is Barred by Res Judicata

Res judicata prohibits the plaintiff from litigating this

case in light of this court’s 12(b)6 dismissal in Drake 1 of

. plaintiff's first action against the FAA. See Nowak v,

Ironworkers Local 6 Pension Fund, 81 F.3d 1182 (W.D.N_Y.

1996) (“[A] dismissal under Rule 12(b)6) is a dismissal on the

merits of the action - a determination that the facts alleged in |

the complaint fail to state a claim upon which relief can be

granted.”) The essence of res judicata is that it “precludes

relitigation in a subsequent proceeding of all issues arising out

of the same cause of action between the same parties..whether

or not the issues were raised in the first trial.” Faulkner v,

Government Employees Insurance Company (GEICO) 618

A.2d 181, 182 (D.C. Cir. 1992)emphasis added)

In Drake 1, alleged irregularities surrounding Drake’s

drug test prompted plaintiff to sue the FAA to obtain additional

procedural rights for airline employees subjected to drug

testing. When Drake brought this initial suit against the FAA,

he was legally obliged to assert all of his claims against the

=

agency and to seek a/l forms of relief to which he was entitled

given the alleged violations of federal regulations that occurred

during his drug test and subsequent termination. Ee Stutsman

v. Kaiser Foundation, 546 A.2d 367, 370 (D.C. Cir. 1988) (It is

the factual nucleus, not the theory upon which a plaintiff

relies, which operates to constitute the cause of action for

claim preclusion purposes.”) Instead, plaintiff deliberately

divided his claims for relief between the two lawsuits he

brought against the agency: “The first case filed against the

FAA was only to obtain some form of due process rights for all

Delta flight attendants. The first case in no way addresses the

violations of his personal case...” See Plaintiffs Brief

Statement of Case II (filed Feb. 1, 2000) Under the broad

definition of “cause of action” set forth in Stutsman, a party

cannot create an additional cause of action simply by alleging

new theories of recovery or by requesting remedies that were

not sought in the original lawsuit. Since this court finds that

the same “factual nucleus” forms the foundation of both cases,

the doctrine of claim preclusion requires this court to dismiss

Drake 2.

In concluding that plaintiff's second lawsuit is barred

by claim preclusion, this court acknowledges the substantial

body of case law supporting the principle that pro se litigants

6

are entitled to more latitude during the pleading phase than

parties represented by counsel. See e.g., Davidson v, Flynn, 32

F.3d 27, 31 (2d Cir. 1994) (pro se litigants should be given

additional opportunities to amend insufficient pleadings);

Foxa v. Stockland, 837 F.2d 507 (D.C. Cir. 1988) (district

courts must take additional steps to advise pro se litigants of

the consequences of failing to respond to a dispositive motion).

Yet courts have refused to extend these procedural protections

to the realm of res judicata: “Despite the federal courts’

generally flexible approach to pro se pleadings, the pro se

litigant must be bound by the same rules of law, including

preclusion law, as those represented by counsel.” Carlin v

Gold Hawk Joint Venture, 778 F. Supp. 686, 693 (S.D.N.Y.

1991). Indeed, the important policies served by res judicata

outweigh the potential unfairness to pro se litigants and justify

this court’s refusal to bend the rules of claim preclusion for

plaintiff in this case: “Spurred by considerations of judicial

economy and a policy of certainty and finality in our legal

system, the doctrines of res judicata and collateral estoppel

have been established to avoid repetitive litigation so that at

some point litigation over a particular controversy must come

to an end.” Eastern Marine Construction Corp. v, First

Southern Leasing, Ltd, 525 A.2d 709, 711 (N.H. 1987).

<i

. Plaintiff Cannot Seek Relief Based on the Merits

While res judicata is dispositive of the outcome in this

se, this court feels compelled to comment on the merits of

take’s complaint in light of his repeated attempts to seek

mpensation from Delta Airlines and the FAA. In brief,

vereign immunity would preclude this court from granting

aintiff legal or equitable relief even if the merits of his case

uld be adjudicated. Furthermore, this court finds that

ake’s failure to exhaust his administrative remedies for

taining the FAA investigation reports prohibits this court

m compelling their production.

Sovereign immunity precludes this court from

granting plaintiff monetary or equitable relief

Even though Drake’s complaint seeks to cast doubt on

integrity of the FAA investigation into Delta’s drug testing

cedures, sovereign immunity precludes this court from

nting plaintiff the relief he requests since the FAA’s

cision not to seek sanctions against the airline was an act of

ency discretion. See Memorandum of Points and Authorities

Support of Defendant’s Motion to Dismiss, p.3 (filed

luary 21, 2000). Generally, private causes of action against

' government are barred by sovereign immunity unless

ngress through a statute explicitly waives the government’s

>

0 Nepean nee. se . -

right not to be sued. See United States v. Kubrick, 444 U.S.

111 (1979). In Drake v. Delta Airlines, 923 F.Supp. 387

(E.D.N.Y. 1996) aff-d in part and vacated in part, 147 F.3d 169

(2d. Cir. 1998) the district court ruled that Congress did not

incorporate any such waiver into the Testing Act: “It is clear

that Congress in enacting the Testing Act intended to provide

a general benefit to the public by increasing the level of

passenger safety, and did not intend to establish a private right

of action for the transportation industry’s employees.” Id. at

392.

The discretionary nature of the FAA investigation also

eliminates the Federal Tort Claims Act as a potential vehicle

for relief in this case. According to 28 U.S.C.A. 2680(a): “The

provisions of [the Tort Claims Act] shall not apply to any claim

based upon an act or omission of an employee of the

Government...or based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty

on the part of a federal agency whether or not the discretion

involved be abused.” The purpose of this exception is “to

prevent judicial second-guessing of legislative and

administrative decisions grounded in social, economic, and

political policy through the medium of an action in tort.” See

Varig Airlines, 467 U.S. 797, 798 (1984). vi

9

Federal courts have frequently invoked 26 U.S.C.A.

ew investigation. As the United District Court for the

ther District of Indiana observed in Koppie v. Busey, 832

4/O

F.Supp. 1245 (N.D.Ind. 1992): “Even if the FAA acted in a

negligent manner, or even if their behavior constituted a gross

abuse of discretion, sovereign immunity is not waived if the

agency is performing a discretionary function.” Id at 1252.

y This Court cannot compel the FAA to furnish

plaintiff with the November 1998 investigation

reports

The one element of Drake’s complaint that is not

precluded by the doctrine of sovereign immunity is plaintiff's

claim that he was entitled to receive a copy of the investigation

report and any “supportive findings” of the investigation

pursuant to 49 C.F.R. 40.37, which states: “Any employee who

is the subject of a drug test conducted under this part shall,

upon written request, have access to any records relating to his

or her drug test and any records relating to the results of any

relevant certification, review, or revocation-of-certification

proceedings.” The FAA asserts, however, that the results of

their investigation are protected from public disclosure by

Freedom Of Information Act (“FOIA”) exemption 7(a) to 5

U.S.C. 522b part(c), which permits the FAA to withhold

information if they “properly determine that releasing [this]

information is likely to disclose investigatory records

compiled for law enforcement purposes...but only to the extent

L/

iceman aia

that the production of such records or information would

interfere with enforcement proceedings.”

This court finds that the release of FAA documents

pertinent to this case is governed by FOIA regulations, and not

encompassed by the language in 49 C.F.R. 40.37. Section 40.37

is entitled: “Individual access to test and laboratory

certification results,” and therefore not germane to the body of

information produced during the agency investigation. Indeed,

the inspection reports and “supportive findings” sought by

plaintiff clearly cannot not be characterized as Drake’s “test

results,” and the circumstances surrounding plaintiff's request

for the investigation indicate that the FAA inspection was not

conducted for the purposes of laboratory certification. Thus,

while the language of the regulation may appear sufficiently

broad to compel the production of this information, the title of

the regulation significantly restricts its scope.

This court cannot grant Drake relief since the FOIA

regulations require plaintiff to exhaust all administrative

remedies prior to judicial review. See Stebbins v, Nationwide

Mutual Insurance Co,, 757 F.2D 364, 366 (D.C.Cir. 1985) (per

curiam) (“Exhaustion of [administrative] remedies is required

under the Freedom of Information Act before a party can seek

judicial review.”); Center to Prevent Handgun Violence v,

| i

United States Department of the Treasury, 981 F.Supp. 20, 23

(D.D.C. 1997) (“Strict enforcement of the exhaustion doctrine

is favored in FOIA cases.”). After the FAA initially refused to

release the investigation report, Drake had thirty days in which

to appeal the decision to the FAA’s Assistant Administrator for

Region and Center Operations. See DEX 13, August 27, 1999

letter to Drake. In light of the cases cited above, plaintiff's

failure to file an appeal pursuant to the instructions in the

August'27 letter precludes him from receiving relief from this

court.

Conclusion

This court finds that res judicata precludes the

litigation of plaintiff's complaint. Furthermore, this court

observes in the alternative that plaintiff has no grounds for

relief on the merits of his case. Not only does sovereign

immunity prevent this court from granting plaintiff monetary

or equitable relief, but this court is prohibited from ordering

the production of the investigation reports given plaintiffs

failure to exhaust his administrative remedies.

A separate order shall issue this date dismissing the

complaint.

DATE: 7-31-00 Royce C. Lamberth

United States District Court Judge

13

.

APPENDIX A

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

7—_—

Argued May 3, 2002 Decided May 31, 2002

No. 00-5329

RICHARD Drake,

APPELLANT

We

FEDERAL AVIATION ADMINISTRATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 99ev02790)

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, ap-

pointed by the court as amicus curiae, Wendy M. Marantz,

Supervising Attorney, and Kristina Marlow, Student Coun-

sel.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

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, Assis-

tant U.S. Attorney. Christy A. Slamowitz, Assistant U.S.

Attorney, entered an appearance.

Before: Epwarps, HENDERSON, and GARLAND, Circuit

Judges.

Opinion for the Court filed by Circuit Judge Epwarps.

Epwarps, Circuit Judge: This appeal arises from the Dis-

trict Court’s dismissal of appellant Richard Drake’s action

against the Federal Aviation Agency (“FAA”). Drake be-

lieves 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 there-

fore contends that the FAA neglected its statutory responsi-

bilities 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 unper-

suasive.*

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 rea-

sonable interpretation of that provision, under which it ap-

* On August 15, 2001, the court appointed Georgetown University

Law Center’s Appellate Litigation Program as amicus curiae on

Drake’s behalf. A third-year law student, Andrew Dunlap, present-

ed argument in support of the appellant. The court commends Mr.

Dunlap on the excellence of his oral advocacy, which greatly assist-

ed our deliberations and judgment in this case.

3

plies 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 stat-

ute, 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 sup-

port an action under Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics, 403 U.S. 388 (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 com-

plaint against Delta, that decision cannot give rise to FTCA

liability either.

I. Backcrounp

FAA regulations require that air carriers administer peri-

odie drug tests on employees who perform certain safety-

Sensitive 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 protec-

tions afforded to employees subject to testing.

oe Om were a

4

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 com-

plaint 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.” Jd. § 46101(a)(1). However, the Administra-

tor “may dismiss a complaint without a hearing when the ...

Adrninistrator 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 regula-

tions have been violated. Jd. § 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 prdnounced it “unsuitable for testing,” indicating

5

that it was somehow adulterated or abnormal. A Subsequent

report suggested that this initia] result was “indicative of

adulteration with glutaraldehyde,” a Substance often used to

ed 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

North West’s test came back negative for glutaraldehyde,

although it revealed a PH of below 4, which the lab consid-

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

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

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6

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 constitu-

tional issue. See Drake v. Delta Airlines, 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 Transpor-

tation.” Jd. 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

111. The FAA conducted a week-long investigation of Delta

between November 2 and November 6, 1998.

This inquiry was not yet completed when, on November 12,

1998, Drake filed a second pro se lawsuit, this one against the

FAA itself in the United States District Court for the District

of Columbia. See Drake v. FAA, Civ. Act. No. 98-2758

(D.D.C.) (“FAA I’). In this action, Drake alleged that the

Part 40 regulations themselves violated the Fourth Amend-

ment as well as “procedural due process.” He contended that

Part 40 failed to provide adequate hearing opportunities for

tested employees and should have included a private right to

sue carriers who run afoul of the rules’ requirements.

Compl. in Civ. Act. No. 98-2758, at 116, 9-10. This case was

assigned to Judge Lamberth.

On March 25, 1999, while this matter was proceeding, the

FAA informed Drake of the results of the agency’s investiga-

tion. The FAA reported that it had found no evidence to

support Drake’s allegations against Delta. The agency also

ee

TS

7

informed Drake that any documents uncovered by the agency

during the course of its investigation could be released to him

only through FOIA. Thus, “as a courtesy,” the FAA inter-

preted Drake’s previous request for documents as a FOIA

request, and submitted it to the appropriate office on his

behalf.

7(a). This exemption applies to records complied for law

enforcement to the extent that production “could reasonably

be expected to interfere with enforcement proceedings.” 5

U.S.C. § 52(b)(7)(A). The agency noted, however, that the

protection of Exemption 7 would terminate when its investi-

gation of Delta was complete.

The instant case commenced on October 20, 1999, when

Drake filed a second pro se action against the FAA in the

tion that Delta had not violated Part 40 was unreasonable,

and the product of a conspiracy between the agency and the

case following the transfer of FAA IT in response to Drake’s

motion to reconsider. On July 31, 2000, however, Judge

Lamberth granted the FAA’s motion to dismiss both cases.

8

As to FAA I, the District Court found that the Part 40

regulations attacked by Drake did not violate procedural due

process. Moreover, noting that those regulations had been

superseded by new ones, the court declined to pass judgment

on the constitutionality of the replacement regulations, which

Drake had not challenged. See FAA I, Civ. Act. No. 98-2758,

at 5-9 (D.D.C. July 31, 2000). Finally, the District Court

concluded that no private right of action existed under Part

40. Id. at 9.

The District Court then dismissed Drake’s action in FAA

II, holding that the action was barred by res judicata,

because it grew out of the same factual nucleus as did FAA I.

See FAA II, No. 99-2790, at 3-5 (D.D.C. July 21, 2000).

However, the District Court elected to “comment” on the

merits, finding that Drake had failed to state a valid legal

claim. Jd. at 5.

The District Court suggested that the federal government’s

sovereign immunity precluded Drake from obtaining the re-

lief that he sought from the FAA. As to Drake’s information

request, the court agreed with the FAA that FOIA governed,

and that Drake was not entitled to judicial review of the

FAA’s decision to invoke Exemption 7(a), because he had

failed to exhaust his administrative remedies. In support of

this conclusion, the District Court read § 40.37 to apply only

to the material referenced in its title: “test and laboratory

certification results.” The regulation did not, in the court’s

view, apply to the “body of information produced during the

agency investigation.” Jd. at 8-9.

Drake appealed both decisions. On March 16, 2001, this

court summarily affirmed the dismissal of FAA J. See Drake

v. FAA, No. 00-5328 (D.C. Cir. Mar. 16, 2001). However, we

denied the FAA’s motion for summary affirmance of FAA IJ,

suggesting that it was not clear that the District Court’s

judgment on res judicata was a proper application of that

doctrine. Moreover, we directed the parties to address two

merits issues in their briefs: (1) whether appellant’s request

for information pursuant to § 40.37 is governed by FOIA;

and (2) what is the proper disposition of appellant’s claims for

9

all other relief (aside from the release of information). We

now turn to these questions.

II. Discussion

A. Res Judicata

The first issue presented in this appeal is whether the

District Court correctly dismissed FAA JJ on res judicata

grounds. Also known as “claim preclusion,” this doctrine

holds that “a judgment on the merits in a prior suit bars a

second suit involving the same parties or their privies based

on the same cause of action.” Parklane Hosiery Co. v. Shore,

439 U.S. 322, 326 n.5 (1979). Whether two cases implicate the

Same cause of action turns on whether they share the same

“nucleus of facts.” Page v. United States, 729 F.2d 818, 820

(D.C. Cir. 1984). Thus, under res judicata, “a final judgment

on the merits of an action precludes the parties or their

privies from relitigating issues that were or could have been

raised in that action.” Allen v, McCurry, 449 U.S. 90, 94

(1980) (emphasis added).

In this case, the District Court misapplied the claim preclu-

sion doctrine. It is clear that, for the most part, the causes of

action asserted in FAA IJ are different from those asserted in

FAA I. The first case was concerned with the Part 40

regulations as a whole, and the related allegation that the

laxity of these regulations may have allowed Delta to violate

Drake’s rights when it processed his urine sample. In

marked contrast, the bulk of FAA JJ attacks the agency’s

subsequent determination that Delta did not violate those

regulations and the FAA’s refusal to disclose information ae

bearing on that determination. Compl. in Civ. Act. No.

99-2790, at 1123-31. Plainly, then, the claims underlying

FAA II are based on a different nucleus of facts than were

those advanced in FAA I.

What is particularly noteworthy here is that many of the

central events underlying FAA JJ had not even taken place at

the time when Drake instigated FAA I. While it is not clear

from the record when exactly the FAA prepared the investi-

gation report attacked in FAA II, it is undisputed that the

SEE SOS SS. GEO we on eens gee -oe

10

agency did not tell Drake about its contents until March 25,

1999. FAA I, of course, had been filed months before, on

November 12, 1998. Moreover, Drake’s claim in FAA IT that

the agency improperly disregarded the terms of 49 C.F.R.

§ 40.37 plainly arose after his first action began. It was not

until April 12, 1999 that the FAA informed Drake that it was

treating his request for information as one made under FOIA,

thus rejecting his assertion that he was entitled to the

information under § 40.37.

Accordingly, the District Court’s conclusion that Drake

should, or could, have raised these claims in FAA J was

misguided. Res judicata does not preclude claims based on

facts not yet in existence at the time of the original action.

Page, 729 F.2d at 820 & n.12; see also Stanton v. District of

Columbia Court of Appeals, 127 F.3d 72, 78-79 (D.C. Cir.

1997). So it is here. The doctrine does not bar a litigant

from doing in the present what he had no opportunity to do in

the past. Therefore, insofar as FAA I] challenges the nature

of the agency’s investigation and its refusal to disclose the

fruits of that investigation, those claims were improperly

dismissed on res judicata grounds.

B. Drake’s Request for the Release of Information

Drake contends that the FAA has provided no reasoned

basis for its refusal to apply 49 C.F.R. § 40.37 to his requests

for documents gathered or generated during the agency’s

investigation of Delta. If this regulation does not apply, then

the issue is now moot. On May 9, 2000, the FAA informed

Drake that because its investigation of Delta was over, FOIA

no longer barred the release of the information gathered

during that inquiry. Thus, the bulk of what Drake had

requested, including the FAA’s Enforcement Investigation

Report and documentation relating to his 1993 drug test, was

released to him.

In light of this disclosure, Drake’s claim is moot, unless he

can show that § 40.37 entitles him to certain documents that

he has requested but not yet received. This he is unable to

do, because the FAA reasonably interpreted that regulation

as not applying to Drake’s requests. The FAA asserts that

1]

Drake’s demands for documents based on § 40.37 must fail,

because the regulation is addressed to laboratories, not the

agency, and, in any event, the regulation is limited to test and

laboratory certification results, not agency investigatory ma-

terials. Therefore, according to the FAA, Drake was obliged

to rely on FOIA, not § 40.37, in his quest for documents from

the FAA. We agree.

In the Notice of Proposed Rulemaking (“NPRM”) issued to

amend Part 40, the FAA indicated that the existing regula-

tions “require[ ] laboratories to provide certain information

about, among other things, their HHS certifications.” Proce-

dures for Transportation Workplace Drug and Alcohol Test-

ing Programs, 64 Fed. Reg. 69,076, 69,085 (Dec. 9, 1999)

(emphasis added). This suggested that any disclosure obli-

gation imposed by § 40.37 was on the laboratories that con-

ducted the actual drug testing, or on the employers for whom

the tests were conducted, not the FAA. Neither the NPRM

nor the rule itself states that an employee may rely on

§ 40.37 to obtain information amassed by the FAA in the

course of its investigation of a carrier or laboratory. More-

over, since the NPRM was aimed at “laboratories,” this

Suggested that the regulation applied only to laboratory

results and not to documents relating to FAA investigations

of carriers.

This interpretation of the regulation was never expressly

advanced by the FAA when it rejected Drake’s request for

documents. Agency officials merely advised Drake that he

was bound to use FOIA, not § 40.37, in his quest for docu-

ments. Drake also points out that § 40.37 does not expressly

foreclose his claim and, further, that the regulation can be

plausibly read to support his position. We agree with Drake

that the regulation, on its face, is ambiguous. However, this

is not fatal to FAA’s position. Recent decisions of this court

make it clear that we owe deference to an agency’s interpre-

tation advanced during litigation regarding the meaning of an

ambiguous regulation, if the position is not inconsistent with

the agency’s prior statements and actions regarding the

disputed regulation. See Bigelow v. Dep't of Defense, 217

F.3d 875, 878 (D.C. Cir. 2000); Akzo Nobel Salt, Inc. v. Fed.

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12

Mine Safety and Health Review Comm’n, 212 F.3d 1301,

1304-05 (D.C. Cir. 2000). The FAA’s interpretation here is

consistent with the position the agency took in its NPRM and

offers a perfectly reasonable interpretation of § 40.37, one to

which we defer.

In support of its interpretation, the FAA first points to

§ 40.1. This provision provides that Part 40 “applies to

transportation employers (including self-employed individu-

als) conducting drug urine testing programs pursuant to

regulations issued by agencies of the Department of Trans-

portation and to such transportation employers’ officers, em-

ployees, agents and contractors.” Thus, according to the

FAA, the mandate of § 40.37 - like the rest of Part 40 - was

directed to regulated carriers, such as Delta, and not to the

FAA itself. See Br. of Appellee 19. The agency finds further

support for this view in § 40.37’s title, which refers only to

“test and laboratory certification results.” The FAA claims

that information generated during an agency investigation of

the kind mounted by the FAA here does not fit within the

confines of this title. See id. at 18.

We accede to this interpretation of § 40.37. The Supreme

Court’s seminal decision in Bowles v. Seminole Rock & Sand

Co., 325 U.S. 410 (1945), established the basic principle that

an agency’s interpretation of one of its own regulations

commands substantial judicial deference. That interpretation

“becomes of controlling weight unless it is plainly erroneous

or inconsistent with the regulation.” Jd. at 414. More

recently, in Auer v. Robbins, the Court held that such defer-

ence is not to be withheld merely because the agency’s

reading of the regulation comes in form of a legal brief. See

519 U.S. 452, 462 (1997); see also Natl Wildlife Federation v.

Browner, 127 F.3d 1126, 1129 (D.C. Cir. 1997) (“The mere

fact that an agency offers its interpretation in the course of

litigation does not automatically preclude deference to the

agency.”).

There are at least three preconditions for applying this so-

called Auer deference. First, the language of the regulation

in question must be ambiguous, lest a substantively new rule

13

be promulgated under the guise of interpretation. See Chris-

tensen v. Harris County, 529 U.S. 276, 588 (2000). Second,

there must be “no reason to Suspect that the interpretation

does not reflect the agency’s fair and considered judgment on

the matter in question.” Auer, 519 U.S. at 462; see also

Bigelow, 217 F.3d at 878. Finally, the agency’s reading of its

regulation must be fairly supported by the text of the regula-

tion itself, so as to ensure that adequate notice of that

interpretation is contained within the rule itself. See Auer,

519 U.S. at 461.

There is no doubt that § 40.37 is ambiguous in its reach.

And the interpretation advanced by the FAA, which applies

the rule only to test or laboratory certification results, and

not to requests presented to the agency itself, resolves that

underlying ambiguity quite sensibly. The phrase “relating to

his or her drug test” is. plastic, and can plausibly be read

either narrowly, particularly in light of the provision’s title, or

broadly, as referring to any records bearing on or connected

to a drug test. By focusing on the title to determine the

Scope of the text, the FAA has adopted a reasonable construc-

tion.

The regulation is silent on the question of to whom the

employee may present a “written request” in order to gain

access to his or her testing records. It is not inconsistent

with the provision — and actually quite consistent with the

structure of the Part 40 regulations as a whole - to construe

this silence as the agency has now done. Part 40 imposes

obligations on regulated carriers and affiliated laboratories,

not on the FAA itself. These are the entities that actually

conduct the drug testing, and who therefore would generally

maintain records relating to such tests. It therefore makes

perfect sense to read § 40.37 to allow employees to seek such

information from private entities, -

Accordingly, the interpretation of the regulation advanced

by the FAA during this litigation is controlling unless we

discern some reason to believe that it is not “fair and consid-

ered.” In conducting this inquiry, we consider whether the

agency has “ever adopted a different interpretation of the

14

regulation or contradicted its position on appeal.” National

Wildlife, 127 F.3d at 1129. Where the agency’s litigation

position is consistent with its past statements and actions,

there is good reason for the court to defer, for then the

position seems “simply to articulate an explanation of long-

standing agency practice.” Akzo Nobel, 212 F.3d at 1304; see

also Ass’n of Bituminous Contractors, Inc. v. Apfel, 156 F.3d

1246, 1252 (D.C. Cir. 1998) (distinguishing between explana-

tions of a rationale implicitly adopted by the agency in its

prior actions and explanations that offer new explanations for

conduct previously defended on other grounds).

So it is here. The FAA’s litigation position that § 40.37

applies neither to the FAA nor to documents relating to FAA

investigations of carriers is in accord with the agency’s han-

dling of Drake’s information requests solely under FOIA and

treating the Part 40 rules as irrelevant. The FAA did not

vacillate or reverse itself on this point. See Akzo Nobel, 212

F.3d at 1304-05 (concluding that the “flip-flops here mark the

Secretary’s position as the sort of ‘post hoc rationalizations’ to

which courts will not defer”) (quoting Martin v. OSHRC, 499

U.S. 144, 156 (1991)). Furthermore, Drake can point to no

prior situations during which the FAA has followed a practice

different from the one it has invoked in this case. See

Bigelow, 217 F.3d at 878 (deferring where there were “no

past practices or pronouncements” inconsistent with agency’s

“current interpretation”). And, finally, as noted above, the

FAA’s litigation position finds support in the NPRM issued to

amend Part 40.

Accordingly, we have no reason to believe that the FAA’s

reading of § 40.37 represents anything but its fair and consid-

ered understanding. Deferring to that reasonable interpreta-

tion, we find that § 40.37 does not apply to Drake’s request

for documents, and that accordingly his claim is moot.

C. Drake’s Remaining Claims

The District Court invoked sovereign immunity to support

its dismissal of the remainder of Drake’s action. Drake

contends that this was error, arguing that the court instead

should have viewed his pro se allegations as three separate

15

claims each of which survives the Government’s 12(b)(6)

motion. We address each of these claims in turn.

1. APA Claim

Drake claims that the FAA’s decision not to find Delta in

violation of the agency’s Part 40 rules violated the APA. In

other words, according to Drake, Delta so manifestly disobey-

ed the FAA’s regulations in processing Drake’s urine sample

that the FAA abused its discretion in concluding otherwise.

The agency’s actions in this context were governed by 49

U.S.C. § 46101. Under this Provision, any person may file a

complaint with the FAA asserting a violation of one of the

agency’s regulations. The agency is directed to look into the

matter “if a reasonable ground appears to the Secretary [of

Transportation] or Administrator [of the FAA] for the investi-

gation.” § 46101(a)(1). Here, Drake filed such a complaint

against Delta, and the FAA conducted an investigation.

What happened next falls within the ambit of § 46101(a)(3),

which provides that:

The Secretary of Transportation or Administrator may

dismiss a complaint without a hearing when the Secre-

tary or Administrator is of the opinion that the complaint

does not state facts that warrant an investigation or

action.

(Emphasis added.) It is this dismissal that Drake now seeks

to challenge. We reject this challenge, because we find that

the FAA’s decision to dismiss Drake’s complaint without a

hearing is “committed to agency discretion by law,” and thus

excluded from review under the APA. 5 U.S.C. § 701(a)(2).

While the APA embodies a “basic presumption of judicial

review,” Abbott Laboratories vy. Gardner, 387 U.S. 136, 140

(1967), § 701(a)(2) bars judicial review of agency action when

the matter in dispute has been “committed to agency discre-

tion by law.” The Supreme Court’s first significant discus-

sion of § 701(a)(2) came in Citizens to Preserve Overton Park,

Inc. v. Volpe, 401 U.S. 402 (1971). There, the Court indicated

that this is a “very narrow exception,” which applies only “in

those rare instances where ‘statutes are drawn in such broad

16

terms that in a given case there is no law to apply.’” Id. at

410 (quoting S. Rep. No. 79-752 (1945)).

Since the Court’s decision in Overton Park, the “no law to

apply” formula has come to refer to the search for substan-

tive legal criteria against which an agency’s conduct can be

seriously evaluated. If no such “judicially manageable stan-

dards” are discernable, meaningful judicial review is impossi-

ble, and agency action is shielded from the scrutiny of the

courts. Heckler v. Chaney, 470 U.S. 821, 830 (1985); Webster

vy. Doe, 486 U.S. 592, 599-600 (1988). In such circumstances,

the courts have no legal norms pursuant to which to evaluate

the challenged action, and thus no concrete limitations to

impose on the agency's exercise of discretion. In other

words, § 701(a)(2) encodes the principle that an agency can-

not abuse its discretion, and thus violate § 706(2)(A), where

its governing statute confers such broad discretion as to

essentially rule out the possibility of abuse.

In determining whether a matter has been committed

solely to agency discretion, we consider both the nature of the

administrative action at issue and the language and structure

of the statute that supplies the applicable legal standards for

reviewing that action. See, e.g., Legal Assistance for Viet-

namese Asylum Seekers v. Dep't of State, Bureau of Consu-

lar Affairs, 104 F.3d 1349, 1353 (D.C. Cir. 1997). The

Supreme Court has recognized that certain categories of

administrative decisions, including refusals to take enforce-

ment actions, are presumptively outside the bounds of judicial

review. See Chaney, 470 U.S. at 831-34; see also Lincoln v.

Vigil, 508 U.S. 182, 191 (1993).

In tl present case, the FAA’s decision to dismiss Drake’s

complaint without a hearing was equivalent to a decision not

to commence an enforcement action. Such a hearing is a

prerequisite to an FAA finding that a carrier has committed a

statutory or regulatory violation. See 49 U.S.C.

§ 46101(a)(4). Here, the agency determined that no hearing

was necessary because the facts stated in Drake’s complaint

were insufficient to warrant further action. The FAA’s action

in this case was thus analogous to an exercise of “prosecutori-

ome . ee ee oe id ee ae

~

17

al discretion” of the sort discussed in Chaney. And, as

Chaney makes clear, when prosecutorial discretion is at issue,

the matter is presumptively committed to agency discretion

by law. See Block v. SEC, 50 F.3d 1078, 1082 (D.C. Cir. 1995)

(concluding that an agency’s refusal to hold a hearing for the

purpose of establishing the factual basis for subsequent en-

forcement action is subject to Chaney’s presumption against

judicial review).

In an effort to avoid Chaney’s presumption against judicial

review, Drake argues that he is merely challenging the

specific findings of the FAA that led the agency not to

commence an enforcement action. In other words, Drake

contends that there is “law to apply” in the sense indicated by

the Supreme Court in Overton Park, because the agency

made specific findings to support its judgment and these

findings are subject to review under § 706(2)(A) of the APA.

This is a superficially appealing argument, but it ultimately

fails for two related reasons.

First, it is clear that the FAA’s factual findings were

inextricably intertwined with its decision not to issue a com-

pliance order against Delta. In other words, the FAA’s

decision that the facts did not show a violation of Part 40 was

inseparable from its decision to take no further prosecutorial

action against the carrier. This is not to suggest that such

agency findings are never subject to judicial review. Instead,

our point is that when, as here, such determinations are a

prerequisite to an enforcement action, we would read Chaney

far too narrowly to conclude that a challenge to the adequacy

of agency findings is not in substance a challenge to the

agency’s refusal to enforce. See Block, 50 F.3d at 1081

(suggesting that Chaney applies not merely to an agency’s

decision not to commence enforcement action in the case of a

recognized violation, but also to “its antecedent judgment

upon the question of whether a violation has occurred”)

(internal quotation marks omitted).

Second, whether this case is governed by Overton Park

(“no law to apply” so the presumption of reviewability is lost)

or Chaney (agency action involved an exercise of prosecutori-

(et Te oe OE ee ee eee

18

al discretion and presumption of non-reviewability has not

been overcome), Drake cannot prevail. This is so because, in

the end analysis, the statute at issue gives virtually unfet-

tered discretion to the FAA to act as it did in this case.

Chaney’s presumption against judicial review may be re-

butted where the relevant statute supplies meaningful stan-

dards to cabin the agency’s otherwise plenary discretion. See

Chaney, 470 U.S. at 832-33; see also Vigil, 508 U.S. at 193

(“Congress may always circumscribe agency discretion to

allocate resources by putting restrictions in the operative

statutes....”); Block, 50 F.3d at 1082 (noting that “an en-

forcement decision that would otherwise be unreviewable is

subject to judicial review if the Congress or the agency itself

has provided a meaningfu! standard for the agency to follow

in exercising its enforcement power”). Accordingly, we may

review the FAA decisions challenged by Drake only if the

operative statute provides clear guidelines by which to do so,

or otherwise evinces an intent to constrain the FAA’s discre-

tion.

In this case, however, the statute does just the opposite.

The language of § 46101(a)(3), which set the terms for the

FAA’s decision to dismiss Drake’s complaint without a hear-

ing, is highly discretionary. Indeed, a provision that allows

the Administrator to act when she “is of the opinion that the

complaint does not state facts that warrant an investigation,”

gives the FAA virtually unbridled discretion over such deci-

sions. The only statutory reference point is the Administra-

tor’s own beliefs. Therefore, a court has no meaningful

standard against which to judge the agency’s exercise of

discretion, at least so long as the agency’s action does not

otherwise infringe some constitutional right or protection.

See Webster, 486 U.S. at 603-04.

The Supreme Court has relied on an analogous distinction

between a subjective standard (whether the agency thinks

that a condition has been met) and an objective one (whether

the condition in fact has been met) in deciding that agency

action was unreviewable. In Webster, the Court held that a

provision allowing termination of a CIA employee whenever

i

19

the agency’s Director “shall deem such termination necessary

or advisable in the interests of the United States” precluded

judicial review of that decision. Jd. at 600 (quoting 50 U.S.C.

§ 403(c)). What may be thought necessary may not in fact be

necessary, but a court may pass judgment only on the latter,

not the former.

Thus, whether this case involves a presumption of non-

reviewability under Chaney or, instead, a presumption of

reviewability under Overton Park, Drake’s claim still fails

because there is “no law to apply.” See, €.g., Claybrook v.

Slater, 111 F.3d 904, 908-09 (D.C. Cir. 1997) (decision of

agency representative to adjourn a meeting whenever “he

determines it to be in the public interest” was committed to

agency discretion by law) (emphasis added). In sum, then, it

is clear that the relevant Statutory language “fairly exudes

deference” to the FAA, and “foreclose[s] the application of

any meaningful judicial standard of review.” Webster, 486

U.S. at 600. We therefore have no basis upon which to

review the FAA’s decision to dismiss Drake’s complaint with-

out a hearing. Appellant has therefore failed to State a claim

under the APA.

2. Bivens Claim

We need not linger long over Drake’s argument that his

complaint states a colorable Bivens claim. The complaint

names only the FAA itself as defendant. Drake neither

named nor served any individual defendants. It is of course

well-settled that Bivens liability cannot be imposed on an

agency of the Federal Government. See FDIC y, Meyer, 510

U.S. 471 (1994). Drake’s constitutional claim against the

FAA thus fails.

Aware of this problem, amicus asks us to allow Drake to

correct this pleading deficiency on remand. Because we have

rejected all of appellant’s claims, however, there is nothing to

remand. Insofar as we are being asked to send the case back

merely so that Drake may amend his complaint, this request

comes too late. See Gov't of Guam v. Am. President Lines,

SO Py Pew Se ee. e- oom

20

28 F.3d 142, 149-51 (D.C. Cir. 1994) (holding that plaintiffs

whose complaints are dismissed waive their right to amend

following appeal if they failed to seek leave to amend from the

District Court); United States ex rel. Totten v. Bombardier

Corp., 286 F.3d 542, 552-53 (D.C. Cir. 2002) (confirming that

this rule applies so long as the Court of Appeals affirms the

dismissal of the complaint).

3. FTCA Claim

Finally, we reject Drake's complaint resting on the Federal

Tort Claims Act. By its own terms, the FTCA does not

apply to any claim that is “based upon the exercise or

performance or the failure to exercise or perform a discre-

tionary function or duty on the part of a federal agency ..-

whether or not the discretion involved be abused.” 28 U.S.C.

§ 2680(a). As our discussion of appellant’s APA claim has

demonstrated, the FAA’s decision to dismiss Drake’s com-

plaint without a hearing in light of its finding that Delta did

not violate Part 40 plainly represents an exercise of the

agency’s discretion. Accordingly, the District Court’s deci-

sion that Drake stated no claim under the FTCA was entirely

correct.

Drake argues that the FAA’s governing statute contains

certain mandatory elements that, if disregarded, could serve

as the basis for an FTCA action. Specifically, he points to

the provision mandating that the Administrator “shall issue

an order to compel compliance with this part if the Secretary

or Administrator finds in an investigation under this subsec-

tion that a person is violating this part.” 49 US.C.

§ 46101(a)(4) (emphasis added). We have no occasion to

address whether disobeying such a statutory command could

give rise to FTCA liability, because there has been no such

disobedience in this case. The whole basis for Drake’s com-

plaint is that the FAA did not find a violation. Accordingly,

whatever obligations this statutory scheme may impose on

the FAA simply have not been triggered.

ot ie an Kae Sage sean wre apy eee wen me Sg Ue Le STO ~———3

21

III. CONCLUSION

For the reasons given above, the decision of the District

Court is affirmed.

It is so ordered.

a

APPENDIX B

APPENDIX B

UNITED STATES COURT OF APPEALS

For The District Of Columbia Circuit

No. 00-5329 September Term, 2000

7 99cv02790

Richard Drake

Appellant

v.

Federal Aviation Administration

Appellee

BEFORE: Sentelle, Rogers, and Tatel, Circuit Judges

ORDER

(filed Aug 15 2001)

Upon consideration of the motion for summary

affirmance, the response thereto,filed May 1, 2001, also

containing appellant’s reply in support of motins for

summary reversal, to allow discovery, and to bar dispositive

motions; the motion for summary reversal and the response

thereto (styled “reply”); the court’s order filed March 21,

2001, deferring consideration of the motion for discovery

until further order of the court; the renewed motion for

discovery filed April 20, 20011; the motion for a conference;

and the motion to bar any dispositive motions by appellee,

and the combined response to the procedural motions, it is

{

ee ee epee ee ae o

ORDERED That the motions for discovery be

denied. It is

FURTHER ORDERED that the motion for

conference be denied. It is

FURTHER ORDERED that the motion to bar any

dispositive motions by appellee be denied. Appellees are

under no obligation to file dispositive motions, and the

Federal Aviation Administration did not file such motion by

the November 6, 2000 deadline set by the court’s September

22, 2000 order. By the time appellant moved for summary

reversal, the case had been placed in abeyance, thus

obviating the need for the appellee to respond to appellant’s

motion at that point. The court’s abeyance order filed

December 12, 2000, directed the parties to file motions to

govern following the disposition of No. 00-5328. Both

parties acted in accordance with that directive in filing the

motions for summary disposition now before the court. It is

FURTHER ORDERED that the motion for

summary reversal and the motion for summary affirmance

be denied for the reasons stated in the attached

memorandum. The merits of the parties’ positions are not so

clear as to warrant summary action. See Taxpavers

Watchdog, Inc, V. Stanlev, 819 F.2d 294, 297 (D.C. Cir.

1987) (per curiam); Walker v. Washington, 627 F.2d 541,

545 (D.C. Cir.) (Per curiam), cert, Denied, 449 U.S. 994

(1980). It is

FURTHER ORDERED, on the court’s own motion,

that

Professor Steven Goldblatt

Oo

Appellate Litigation Clinic

Georgetown University Law Center

111 F St. N.W.

Washington, DC 20001

202-662-9555

a member of the Bar of this court, be appointed as amicus

curiae to present arguments in favor of appellant’s position.

Because the court has determined that summary

disposition is not in order, the Clerk is instructed to calender

this case for presentation to a merits panel.

Per Curiam

RWR

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i

UNITED STATES COURT OF APPEALS

For The Distnct Of Columbia Circuit

No. 00-5329 September Term, 2001

99cv02790

Richard Drake

Appellant

v.

Federal Aviation Administration

Appellee

BEFORE: Ginsburg, Chief Judge, and Edwards, Sentelle,

Henderson, Randolph, Rogers, Tatel and Garland,Circuit

Judges

ORDER

(filed on, July 22, 2002)

Upon consideration of appellant’s petition for rehearing

in banc, and the absence of a request by any member of the

court for a vote, it is

ORDERED that the petition be denied.

Per cunam

FOR THE COURT:

Mark J. Langer, Clerk

By: Michael C. McGrail, Deputy Clerk

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 1997

(Argued: May 14, 1998 Decided: June 17, 1998)

Docket No. 97-9039

RICHARD W. DRAKE,

Plaintiff-Appellant,

—V——

DELTA AIR LINES, INC.,

Defendant-Appellee.

Before:

FEINBERG, CARDAMONE, and CABRANES,

Circuit Judges.

Appeal from judgments of the United States District Court

for the Eastern District of New York (Frederic Block, Judge)

dismissing plaintiff’s complaint, which alleged violations of

Federal Aviation Administration regulations, Fourth Amend-

ment violations, and wrongful termination in connection with

4045

employee drug testing by Delta Air Lines, for failure to state

a claim under Fed. R. Civ. P. 12(b)(6).

Affirmed in part with respect to appellant’s regulatory and

wrongful termination claims, vacated in part with respect to

appellant’s Fourth Amendment claims, and remanded.

RICHARD W. DRAKE, pro se, Manassas, Vermont.

IRA G. ROSENSTEIN, Orrick, Herrington &

Sutcliffe, New York, New York (Michael

Delikat, Robert S. Whitman, Orrick, Her-

rington & Sutcliffe; Thomas J. Munger,

Andrew J. Fisher, Delta Air Lines, Inc., on

the brief), for Defendant-Appellee.

PER CURIAM:

Plaintiff-appellant Richard W. Drake appeals from the

judgment of the United States District Court for the Eastern

District of New York (Frederic Block, Judge) of April 26,

1996 dismissing for failure to state a claim those portions of

his complaint alleging violations by defendant-appellee Delta

Air Lines, Inc. (“Delta”) of Federal Aviation Administration

(“FAA”) regulations and of Drake’s Fourth Amendment

rights, see Drake v. Delta Air Lines, Inc., 923 F. Supp. 387

(E.D.N.Y. 1996) (“Drake I’), and from the July 28, 1997

final judgment of that same court dismissing for failure to

state a claim his amended complaint alleging wrongful ter-

mination and procedural due process violations in connection

with his termination, see Drake v. Delta Air Lines, Inc., 1997

WL 397498 (E.D.N.Y. July 10, 1997) (“Drake IT”). Sub-

stantially for the reasons stated in the opinions below, we

4046

affirm the judgments of the district court in all respects but

one; we vacate the judgment of the district court with respect

to Drake’s Fourth Amendment claims (which, construed lib-

erally, contain allegations overlooked by the district court)

and remand for further proceedings.

Taking the facts alleged in plaintiff’s pleadings’ as true, as

we must in reviewing a dismissal for failure to state a claim

under Fed. R. Civ. P. 12(b)(6), see Murray v. Miner, 74 F.3d

402, 403-04 (2d Cir. 1996), Drake claims the following: He

was employed by Delta as a flight attendant beginning in

1991. He was tested for drugs four times between April 1993

and October 28, 1993. On October 28, 1993, Drake was

required to provide a urine sample for a drug test. On

November 10, 1993, he was told that there was “something

wrong with his [October 28] sample,” but was never supplied

with written results of the drug test. He was removed from

flight status and suspended on November 28, 1993, and one

month later he was asked to resign; when he refused to do so,

his employment was terminated. Drake was informed in

February 1994 that a Delta administrative hearing (in which

he had not been permitted to personally participate) had con-

firmed his termination.

With respect to the October 28, 1993 drug test, the first

laboratory to which Drake’s urine sample was sent found the

sample to be “unsuitable for testing.” The sample was then

sent to a second laboratory to determine if it had been adul-

terated with a substance designed to prevent the detection of

' Like the district court, we deem Drake's complaint to include the facts con-

tained in his memorandum of law filed in response to Delta’s 1996 motion to

dismiss. See Drake 1, 923 F. Supp. at 388 (citing Le Grand v. Evan, 702 F.2d

415,416 n.3 (2d Cir. 1983)).

4047

illegal drugs. (Delta states, but did not supply Drake with

documentation indicating, that the second test established

that the sample had in fact been adulterated.) Drake contends

that Delta’s procedures in connection with both the Original

test and the subsequent test for adulterants involved multiple

violations of FAA drug testing regulations, see 14 C.FR.

pt. 121, app. I (adopting procedures specified in 49 C.F.R.

pt. 40).

II.

We affirm, substantially for the reasons stated in its

thoughtful and detailed opinions below, the district court’s

dismissal under Fed. R. Civ. P. 12(b)(6) of (i) Drake’s claims

based on Delta’s alleged violations of drug testing regula-

tions, because there is no implied private right of action for

employees under those regulations,? see Drake I, 923 F.

Supp. at 389-393; and (ii) Drake’s statutory, common law,

and constitutional claims based on Delta’s allegedly wrong-

ful termination of his employment because, inter alia, Drake

was an at-will employee and Delta was not a state actor with

respect to the employment action, see Drake IJ, 1997 WL

397498, at *2-*4.

The district court’s analysis of Delta’s alleged Fourth

Amendment violations, however, rests on a key assumption

about the nature of Drake’s complaint that is colorably chal-

lenged on appeal—namely, the assumption that Drake took

issue with only the second test of his October 28, 1998 urine

sample. See Drake I, 923 F. Supp. at 394 (“Drake, however,

does not take issue with the initial test, but rather, challenges

2 We note, as did the district court, 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. See Drake 1, 923 F.

Supp. at 393 n 9 (citing 49 U.S.C. § 46101 (a)).

4048

Delta’s subsequent test for adulteration.”). Having concluded

that the Fourth Amendment was implicated in the second

test, the district court held that the test was nevertheless a

“reasonable” intrusion on Drake’s Fourth Amendment inter-

ests. That conclusion of “reasonableness” rested in !arge part

on the reasoning that “[t]o the extent that Drake retained any

privacy interest in his urine sample after it had been tested

the first time’”—the propriety of which test the district court

took to be unchallenged—“that interest was minimal.” Jd. at

396. More specifically, the district court noted thai the sec-

ond test did not involve any additional physical invasion

beyond that already occasioned by the original test. See id. at

396-97.

On appeal, however, Drake objects to the district court’s

characterization of his complaint, and contends that he did

indeed challenge the original test as well. It is certainly the

case that Drake’s papers before the district court focused

principally, and indeed overwhelmingly, on his assorted

objections to Delta’s procedures in connection with the sec-

ond test for adulterants. In light of the rather impenetrable

state of some of Drake’s pleadings, it is understandable that

the district court—which was commendably conscientious in

construing and resolving his claims—would have read the

complaint as it did. However, Drake now points to a portion

of his pro se complaint that, when construed liberally, see

Haines v. Kerner, 404 U.S. 519, 520 (1972), can be read to

take issue with the original drug test as well. See Plaintiff’s

Complaint (Dec. 27, 1994) at 2 (“Delta Air Lines violated the

Plaintiff’s right that drug testing be done on a ‘RANDOM’

basis. Delta Air Lines manipulated the random DOT testing

for [its] own agenda which made the testing not random, but

intentionally oppressive and discriminatory.”)

If Drake’s complaint is construed to raise objections

not only to the second test for adulterants, but also to the

4049

original drug test itself, we cannot say that “it appears

beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.” Con-

ley v. Gibson, 355 U.S. 41, 45-46 (1957); Northrop v. Hoff-

man of Simsbury, 134 F.3d 41, 44 (2d Cir. 1997). Taking

Drake’s allegations (liberally construed) as true for purposes

of the motion to dismiss, he has pléd a legally cognizable

claim for violation of the Fourth Amendment. Although the

Fourth Amendment prohibits only “unreasonable” searches

and seizures,? see Skinner v. Railway Labor Executives’

Ass'n., 489 U.S. 602, 619 (1989), Drake’s allegation that the

October 28, 1993 test was not randomly administered is suf-

ficient to make out a prima facie claim of unreasonableness.

Warrantless drug urinalysis testing of employees in safety-

sensitive jobs may be consonant with the Fourth Amendment

where part of a systematic, uniformly applied testing pro-

gram (such as random testing), see Skinner, 489 U.S. at 624;

National Treasury Employees Union v. Von Raab, 489 U.S.

656, 665 (1989), or where based on the employer’s individ-

ualized “reasonable suspicion” of drug use by the employee,

see Coppinger v. Metro-North Commuter R.R., 861 F.2d 33,

35-36 (2d Cir. 1988). See also Benavidez v. City of Albu-

guerque, 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).

However, Drake’s complaint can be construed to allege that

Delta’s collection and first test of his urine sample was not

administered within the parameters of its systematic testing

program, and the record is silent (as is Delta) as to any basis,

3 As the district court noted, see Drake 1, 923 F. Supp. at 394, and as coun-

sel for Delta conceded several times at oral argument before this Court, the

sample collection and initial drug test, which were carried out under the author-

ity of the FAA mandatory drug testing regulations implicated the Fourth

Amendment; that is, Delta was a “state actor” for Fourth Amendment purposes

when it required Drake to submit to the October 28, 1993 test.

4050

arising prior to the test’s administration, for a reasonable sus-

picion that Drake was using drugs.

Whether or not the October 28, 1993 collection and testing

of Drake’s urine sample was conducted as part of Delta’s sys-

tematic, FAA-mandated, random drug testing program, and

whether or not Delta possessed any reasonable suspicion

of Drake, are factual questions to be taken up on summary

judgment or at trial. In reviewing the dismissal on the plead-

ings, however—where we are required to construe liberally

Drake’s complaint, accept as true his allegations, and draw

all reasonable inferences in his favor—we cannot conclude

that Drake has failed to state a facially cognizable claim of

a Fourth Amendment violation in connection with the orig-

inal drug test. Additionally, because Drake has stated a claim

with respect to the original sample collection and testing, he

has also stated a Fourth Amendment claim with respect to the

further testing for adulterants of that allegedly unconstitu-

tionally obtained sample.

Accordingly, while affirming in all other respects, we

vacate the judgment of the district court insofar as it dis-

missed Drake’s Fourth Amendment claims under Fed. R. Civ.

P. 12(b)(6), and we remand for further proceedings in con-

nection with those claims. On remand, the district court

might wish to consider whether Drake’s action merits the

appointment of counsel under its local procedures governing

the appointment of attorneys in pro se civil actions.

4051

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