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Freeman v. Fallin

March 24, 2003


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 13




This Bivens *fn1 action comes before the court on the defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), (3), (4) and (6). The pro se plaintiffs, Stephen Freeman and Lorraine Fairchild ("the plaintiffs"), are former criminal investigators with the Office of the Inspector General ("OIG") of the United States Environmental Protection Agency ("EPA"). The defendants, who are sued in their individual capacities, are former OIG Assistant Inspector General for Investigations Allan Fallin, OIG Deputy Assistant Inspector General for Investigations Emmett Dashiell Jr., OIG Assistant Inspector General for Management John Jones, OIG Counsel to the Inspector General Mark Bialek, and Department of Defense Criminal Investigator Arthur Hymons. The plaintiffs' complaint alleges that these officials (collectively, "the defendants") manipulated EPA's random drug-testing procedures to target the plaintiffs for testing, thereby violating their Fourth Amendment right to freedom from unreasonable search and seizure. In response, the defendants filed a motion to dismiss for lack of subject-matter jurisdiction, improper venue, insufficient service of process, and failure to state a claim on which relief may be granted. For the following reasons, the court denies the defendants' motion to dismiss.


A. Factual Background

From 1999 to 2000, both plaintiffs worked as criminal investigators for OIG, with plaintiff Freeman assigned to the San Francisco office and plaintiff Fairchild working in the District of Columbia office. Compl. ¶¶ 3-4, 10-11. As criminal investigators engaged in law enforcement and authorized to carry firearms, both plaintiffs were subject to random drug urinalysis testing by OIG, their employer. Defs.' Mot. to Dismiss ("Defs.' Mot.") at 9-10.

According to the plaintiffs, at some time during fall 1999 and winter 2000, then-Assistant Inspector General ("AIG") for Investigations Fallin and Deputy Assistant Inspector General for Investigations Dashiell received what the plaintiffs describe as frivolous and unsubstantiated allegations concerning the plaintiffs' off-duty drug use. Compl. ¶¶ 12-13. The plaintiffs assert that AIG Fallin and Deputy AIG Dashiell then conferred with AIG for Management Jones, the coordinator for agency drug testing, to design a "random" drug test that would include the plaintiffs. Id. ¶ 15. Instead of following EPA policy by drawing a random sampling based on a neutral criterion (such as social security numbers), AIG Fallin allegedly chose last names beginning with the letter F, thereby ensuring that the plaintiffs would be among those tested. Id. ¶¶ 15-17.

On February 28, 2000, Ms. Fairchild received notice that in accordance with EPA's drug testing policy, she had been selected for random drug urinalysis testing. Id. ¶ 18. The plaintiffs state that although Ms. Fairchild reported to the testing facility, she attempted to evade the test due to concerns about her privacy regarding her prescribed medications. Id. According to the plaintiffs, her efforts were successful: the lab technician did not witness her provision of the sample, and thus had to destroy her sample. Id. The plaintiffs contend that unbeknownst to Ms. Fairchild, her efforts to evade the test were reported to AIG Fallin, Deputy AIG Dashiell, and AIG Jones. Id.

According to the plaintiffs, AIG Dashiell subsequently took the unusual step of asking Investigator Hymons, a personal friend, to conduct the investigation. Id. ¶ 19. On March 8, 2000, Investigator Hymons interviewed Ms. Fairchild's former boyfriend, who provided a "complicated and implausible story" regarding wiretaps implicating Ms. Fairchild in drug use. Id. ¶ 21. The following day, at a meeting between Investigator Hymons, AIG Jones, and OIG Counsel Bialek, AIG Jones indicated that both plaintiffs were scheduled to undergo testing in the next few days, and OIG Counsel Bialek asked Investigator Hymons to "present this matter" to the U.S. Attorney. Id. ¶¶ 22-23. On March 10, 2000, Investigator Hymons allegedly briefed an assistant U.S. attorney ("AUSA") for the Southern District of Maryland on the allegations against the plaintiffs, and the AUSA indicated that he would make a decision regarding prosecution once the test results were available. Id. ¶ 25

During the next two weeks, both plaintiffs underwent urinalysis testing. In San Francisco, Mr. Freeman provided a sample without incident on March 13, 2000. Id. ¶ 27. In the District of Columbia, Ms. Fairchild reported twice for testing, failing to provide a sufficient sample on March 9, 2000, but providing a sufficient sample on March 20, 2000. Id. ¶ 24. According to the plaintiffs, at some date between the two tests, Ms. Fairchild was relieved of her badge, weapon, credentials, and OIG access, and ordered to report to EPA headquarters for an indefinite period. Id. ¶ 26.

On March 20 and 24, respectively, AIG Jones allegedly informed Investigator Hymons that test results for Mr. Freeman and Ms. Fairchild were negative. Id. ΒΆΒΆ 29, 32. The plaintiffs assert that Investigator Hymons then reported the results to the AUSA, who ...

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