memorandum."); Alexander v. Coughlin, 1991 U.S. Dist. LEXIS 10661, No. 90 Civ. 3231, 1991 WL 150674, at *1 (E.D.N.Y. July 26, 1991) (Raggi, J.) (deeming complaint amended to include factual allegations asserted in plaintiff's memorandum of law); Langert v. Festa, 563 F. Supp. 692, 696 (E.D.N.Y. 1983) (McLaughlin, J.) (same).
Drake was a Delta flight attendant who was required to undergo random testing for illegal drugs pursuant to regulations issued by the FAA and DOT ("FAA drug testing regulations"). On October 28, 1993, he submitted a urine sample to be tested by a laboratory, but the laboratory found the sample "unsuitable for testing."
Drake's sample was then sent to a second laboratory to determine if it had been adulterated. According to Delta, this additional test established adulteration and Drake was subsequently called into Delta's New York office and asked to resign. Upon his refusal to resign, he was fired and informed that he had a right to a hearing.
The hearing apparently consisted of two steps. First, Drake was provided with the opportunity to explain to a Delta employee the facts he thought were relevant to prove his innocence. Second, the Delta employee then presented the information the employee deemed relevant at a hearing Drake was not permitted to attend. Drake alleges that he was not provided with any information regarding the charges which resulted in his termination prior to his meeting with the Delta representative. In mid-February 1994, Drake was informed that this hearing had affirmed his termination.
Thereafter, Drake filed for unemployment benefits. He was initially denied benefits and requested a hearing before the New York State Unemployment Insurance Appeal Board. At this hearing, two Delta witnesses and a Delta attorney appeared, but "no proof [was] submitted by [Delta] that [Drake's] sample contained an adulterant." (Pl. Mem. of Law at 2.) According to Drake, the ALJ determined that his discharge was not due to misconduct in his employment, that he did not alter his urine sample, and that he should be awarded the maximum unemployment compensation.
Drake complains of violations of the FAA drug testing regulations.
He also alleges that Delta's testing of his urine sample for adulterants violated his rights under the Fourth Amendment. In his request for relief, he makes a number of demands, including reinstatement to his position as a Delta flight attendant, recovery of all lost back pay and benefits, and compensatory and punitive damages.
In support of its motion to dismiss the complaint, Delta contends that it cannot be the subject of a private cause of action for allegedly violating the FAA drug testing regulations, and that the Fourth Amendment does not apply to its actions in testing Drake's sample for adulterants because it is a private employer and was not acting as an agent of the government. The Court agrees with Delta's first contention, but disagrees with Delta's second contention. The Court, however, deems the search for adulterants to be reasonable under the Fourth Amendment.
I. Is There a Private Right of Action for Violations of the FAA's Drug Testing Regulations?
The FAA drug testing regulations were promulgated under the authority of the Omnibus Transportation Employee Testing Act of 1991 ("Testing Act") which, inter alia, amended the Federal Aviation Act, the Federal Railroad Safety Act, and the Commercial Motor Vehicle Safety Act to require drug testing for transportation workers in safety-sensitive positions. See Omnibus Transportation Employee Testing Act of 1991, Pub. L. No. 102-143, 105 Stat. 952 (1992). The Testing Act also placed Congress' imprimatur on drug testing regulations that had been promulgated in the 1980's by the administrative agencies governing the transportation industry, including regulations authorizing mandatory random testing issued by the FAA.
In this latter regard, the Testing Act required the mandatory testing of transportation workers in safety-sensitive positions throughout the transportation industry. Section 3 of the Testing Act, the portion which governs testing in the aviation industry, specifically directs the FAA to establish a program requiring air carriers to conduct drug testing of employees prior to their employment, upon reasonable suspicion, at random, and after accidents.
The procedures currently used for the selection of employees to be tested, the collection of urine samples, and the testing of those samples are detailed in the FAA drug testing regulations which were issued pursuant to the directives of the Testing Act. 14 C.F.R. pt. 121, app. I (1995).
Employees who perform flight attendant duties are expressly included in the group subject to testing. 14 C.F.R. pt. 121, app. I(III)(B) (listing safety-sensitive positions subject to mandatory drug testing). The regulations which apply to flight attendants provide for mandatory random drug testing. 14 C.F.R. pt. 121, app. I(V)(C) (describing the percentages of employees who must be tested pursuant to the random testing provisions).
In Salomon v. Roche Compuchem Lab., Inc., 909 F. Supp. 126 (E.D.N.Y. 1995), the only reported case addressing the issue, Judge Johnson held that no private right of action exists to remedy violations of the FAA's drug testing regulations. See 24 Hour Fuel Oil Corp. v. Long Island R.R. Co., 903 F. Supp. 393, 397 (E.D.N.Y. 1995) (Trager, J.) ("Private causes of action are either explicit -- a statute or regulation specifically states that individuals have a right to sue under them -- or implicit -- the apparent intent of Congress or administrative agencies is to have individuals use them to litigate."). In applying the appropriate analysis under Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), and its progeny,
Judge Johnson correctly noted that: 1) the enabling statute was silent with respect to the existence of a private right of action to enforce the regulations; 2) there was an administrative enforcement mechanism in place to address alleged violations of the regulations; and 3) no rights were created in the statute for a specific class of persons.
Indeed, under Part A, Subtitle VII of Title 49, Congress provided comprehensive administrative mechanisms for the enforcement of the FAA drug testing regulations and other aviation safety measures. See 49 U.S.C. § 46101, et seq. Amongst them is one that enables an individual to initiate an investigation by the Secretary of Transportation. Section 46101(a)(1) provides:
A person may file a complaint in writing with the Secretary of Transportation . . . about a person violating this pan or a requirement prescribed under this part. . . The Secretary . . . shall investigate the complaint if a reasonable ground appears to the Secretary . . . for the investigation.