United States District Court for the District of Columbia
February 26, 2004.
STEPHEN D. FREEMAN, LORRAINE A. FAIRCHILD, Plaintiffs,
ALLEN P. FALLIN et al., Defendants
The opinion of the court was delivered by: RICARDO URBINA, District Judge
DENYING THE DEFENDANTS' MOTION TO ALTER OR AMEND
This matter comes before the court on the defendants' motion to alter
or amend the court's judgment pursuant to Federal Rule of Civil Procedure
59(e). 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 plaintiffs brought suit against several current and
former OIG officials (collectively, "the defendants") in their individual
The plaintiffs claim that the defendants deprived them
of their Fourth Amendment rights by subverting EPA's suspicionless drug
testing procedures to gather evidence of alleged drug use for use in
criminal proceedings. After the court denied the defendants' motion to
dismiss, the defendants filed the pending motion. Because the court
concludes that there is no intervening change of law, new evidence, or
need to correct a
clear error or prevent manifest injustice, the court denies the
The allegations set forth by the plaintiffs are as follows. From 1999
to 2000, both plaintiffs worked as criminal investigators for OIG, with
Mr. Freeman in the San Francisco. office and Ms. Fairchild in the
District of Columbia office. Freeman v. Fallin, 254 F. Supp.2d 52, 54
(D.D.C. 2003). As criminal investigators engaged in law enforcement and
authorized to carry firearms, both plaintiffs were subject to random drug
urinalysis testing. Id. According to the plaintiffs, at some time during
fall 1999 and winter 2000, then-AIG for Investigations Fallin and Deputy
AIG for Investigations Dashiell received what the plaintiffs describe as
frivolous and unsubstantiated allegations concerning the plaintiffs'
off-duty drug use. Id. 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. Instead of following EPA policy by
drawing a random sampling based on a neutral criterion, AIG Fallin
allegedly chose last names beginning with the letter F, thereby ensuring
that the plaintiffs would be among those tested. Id.
In February 2000, Ms. Fairchild received notice that she had been
selected for random drug urinalysis testing. Id. Although Ms. Fairchild
reported to the testing facility, she successfully evaded the test. Id.
Unbeknownst to Ms. Fairchild, however, her efforts to evade the test
allegedly were reported to AIG Fallin, Deputy AIG Dashiell, and AIG
Jones. Id. The plaintiffs allege that AIG Dashiell subsequently asked
Investigator Hymons to conduct an investigation. Id. In early March
2000, Investigator Hymons interviewed Ms. Fairchild's former boyfriend,
who implicated Ms. Fairchild in drug use. Id. The following day, at a
between Investigator Hymons, AIG Jones, and OIG Counsel Bialek, AIG Jones
indicated that both plaintiffs were scheduled to undergo testing, and OIG
Counsel Bialek asked Investigator Hymons to present the matter to the
U.S. Attorney. Id. at 54-55. Investigator Hymons allegedly briefed an
assistant U.S. attorney ("AUSA") for the Southern District of Maryland,
who indicated that he would make a decision regarding prosecution once
the test results were available. Id. at 55.
During the next two weeks, both plaintiffs underwent urinalysis
testing. In San Francisco, Mr. Freeman provided a sample without
incident. Id. In the District of Columbia, Ms. Fairchild reported twice
for testing, ultimately providing a sufficient sample. Id. In late March
2000, AIG Jones allegedly informed Investigator Hymons that test results
for both plaintiffs were negative and Investigator Hymons reported the
results to the AUSA, who indicated that he would not prosecute. Id.
Based on these events, the plaintiffs filed a complaint alleging that
the defendants deprived them of their Fourth Amendment rights by
subverting EPA's suspicionless drug testing procedures to gather evidence
of alleged drug use for use in criminal proceedings. Id. In response, the
defendants moved to dismiss for, inter alia, failure to state a claim on
which relief may be granted. Id. Specifically, the defendants asserted
that the plaintiffs failed to allege a violation of their constitutional
rights, and raised a defense of qualified immunity. Id. at 59. The court
denied the defendants' motion, concluding that the plaintiffs had alleged
an actual Fourth Amendment right to protection against the use of agency
suspicionless drug testing procedures to gather evidence for criminal
proceedings, and that the right was clearly established at the time of the
defendants' actions. Id. at 60-61.
Subsequently, the defendants filed the pending motion to alter or amend
alleging that the court erred because "[i]t was not clearly established
during 1999-2000 that manipulation of random drug testing procedures to
gather evidence of alleged drug use in criminal proceedings was a Fourth
Amendment violation." Defs.' Mot. to Alter or Amend J. ("Defs.' Mot.") at
5. The court now turns to the defendants' motion.
A. Legal Standards
1. Rule 59(e) Motion to Alter or Amend Judgment
Under Rule 59(e), a party may file a motion to alter or amend the
court's judgment within 10 days of entry of the judgment at issue.*fn2
FED. R. CIV. P. 59(e); see also Mashpee Wampanoag Tribal Council, Inc.
v. Norton, 336 F.3d 1094, 1098 (D.C. Cir. 2003) (discussing the
measurement of the 10-day period). While the court has considerable
discretion in ruling on a Rule 59(e) motion, the reconsideration and
amendment of a previous order is an unusual measure. Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam); McDowell v.
Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999). Rule 59(e) motions "need
not be granted unless the district court finds that there is an
intervening change of controlling law, the availability of new evidence,
or the need to correct a clear error or prevent manifest injustice.
Ciralsky v. Cent. Intelligence Agency, 2004 WL 177442, at * (D.C. Cir.
Jan. 30, 2004) (quoting Firestone, 76 F.3d at 1208). Moreover, "[a] Rule
59(e) motion to reconsider is not simply an opportunity to reargue facts
and theories upon which a court has already ruled," New York v. United
States, 880 F. Supp. 37,
38 (D.D.C. 1995), or a vehicle for presenting theories or arguments that
could have been raised previously. Rattan v. District of Columbia,
995 F.2d 274, 276 (D.C. Cir. 1993); W.C. & A.N. Miller Cos. v. United
States, 173 F.R.D. 1, 3 (D.D.C. 1997).
2. Bivens Claims and the Qualified Immunity
A plaintiff may bring a civil action for money damages against a
federal official in his or her individual capacity for violation of the
plaintiff's constitutional rights. Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388
, 389 (1971). Federal officials,
however, may be entitled to a defense of qualified immunity. Wilson v.
Layne, 526 U.S. 603
, 614 (1999) (citing Harlow v. Fitzgerald, 457 U.S. 800
818 (1982)). Qualified immunity "shield[s officials] from liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known." Id. It "provides not simply a defense to
liability, but also an entitlement not to stand trial or face the other
burdens of litigation." Farmer v. Moritsugu, 163 F.3d 610
, 613 (D.C.
Cir. 1998) (quoting Mitchell v. Forsyth, 472 U.S. 511
, 526 (1985)).
In evaluating a Bivens claim to which a defendant has raised the
qualified immunity defense, the court must follow a two-pronged
analysis. Butera v. District of Columbia, 235 F.3d 637, 646 (D.C. Cir.
2001) (citing Wilson, 526 U.S. at 609). First, as a threshold matter, the
court must determine whether the plaintiff has alleged the deprivation of
an actual constitutional right. Id.; Saucier v. Katz, 533 U.S. 194, 201
(2001). In defining an "actual constitutional right," a court must be
careful to avoid defining the right in overly general terms "lest [it]
strip the qualified immunity defense of all meaning." Butera, 235 F.3d at
646. Instead, the court must identify the right with the appropriate
level of specificity so as to allow officials to reasonably anticipate
when their conduct may give rise to liability for damages. Id. (quoting
Creighton, 483 U.S. 635, 639 (1987)). Second, the court must decide
whether the constitutional right was clearly established at the time of
the defendant's action. Id. A right is "clearly established" if "the
contours of that right [are] sufficiently clear that a reasonable
official would understand that what he is doing violates that right."
Id. (quoting Wilson, 526 U.S. at 614-15); see Crawford-El v. Britton,
523 U.S. 574, 591 (1998) (stating that "[i]f the law was clearly
established, the immunity defense ordinarily should fail, since a
reasonably competent public official should know the law governing his
conduct"). Although courts need not have held the specific action in
question to be unlawful, the action's unlawfulness in light of
pre-existing law must have been apparent to the defendant. Butera, 235
F.3d at 646 (quoting Anderson, 483 U.S. at 640).
B. The Court Denies the Defendants' Motion to Alter or
In their motion, the defendants contend that "[i]t was not clearly
established during 1999-2000  that manipulation of random drug testing
procedures to gather evidence of alleged drug use in criminal proceedings
was a Fourth Amendment violation." Defs.' Mot. at 5. Specifically, the
defendants argue that there is no case law addressing whether
manipulation of random drug testing procedures violates the Fourth
Amendment. Id. at 8. Moreover, the defendants assert that "at least four
Supreme Court Justices, in 2001, believed that the taking of a urine
sample may not amount to a search in violation of the Fourth Amendment at
all, even without any application of the special-needs doctrine." Id. at
10 (referring to Ferguson v. City of Charleston, 532 U.S. 67
Noting that the defendants are not required to be constitutional
scholars, the defendants urge the court to conclude that the applicable
law was not clearly established at the time of the
events alleged by the plaintiffs.*fn4
Id. at 12.
In response, the plaintiffs argue that the defendants' motion is a
transparent attempt to relitigate old matters by raising arguments that
they could have raised in their motion to dismiss. Pls.' Opp'n at 1. The
plaintiffs go on to stress that "[t]he central issue remains whether
police officers engaged in a criminal investigation can avoid the warrant
and probable cause requirements of the Fourth Amendment by subverting a
mandatory, administrative drug testing procedure to gather evidence of a
crime," whether or not a criminal prosecution actually took place.*fn5
Id. at 3. In fact, the plaintiffs assert that they established a prima
facie case of unreasonableness by alleging that the defendants did not
randomly administer the drug test. Id. Finally, the plaintiffs argue that
the defendants have a responsibility to keep abreast of constitutional
developments in criminal law. Id.
The court concludes that there is no intervening change of law, new
evidence, or need to correct a clear error or prevent manifest injustice
that would warrant granting the defendants' motion. Firestone, 76 F.3d at
1208. At the time of the defendants' alleged actions in 1999-2000,
there was no question that agencies could subject federal employees
engaged in certain safety-sensitive tasks to suspicionless drug testing
under the "special needs" doctrine. Nat'l Treasury Employees Union v. Von
Raab, 489 U.S. 656, 679 (1989); Skinner v. Ry. Labor Executives' Ass'n,
489 U.S. 602, 624 (1989); Hartness v. Bush, 919 F.2d 170, 172 (D.C. Cir.
1990). At the same time, the Supreme Court had made clear through a
string of decisions issued in 1989, 1995, and 1997 that special-needs
testing could not be undertaken for purposes of criminal prosecution.
Vernonia School Dist. 47 J v. Acton, 515 U.S. 646, 658 (1995) (noting
that results from the school's drug-testing program were "not turned over
to law enforcement authorities"); Von Raab, 489 U.S. at 666 (observing
that under the Customs Service's drug-testing program, "[t]est results
[could] not be used in a criminal prosecution of the employee without the
employee's consent"); Skinner, 489 U.S. at 620-21 (commenting that the
Federal Railway Administration's drug-testing program was "not to assist
in the prosecution of employees"); cf. Chandler v. Miller, 520 U.S. 305,
312, 318 (1997) (stating with approval that Georgia's statute requiring
drug testing for candidates for state office barred disclosure of test
results to law enforcement, but striking down the statute for lack of a
"special need" justification).
The defendants argue, however, that this case law does not define the
constitutional right at the "appropriate level of specificity." Defs.'
Mot. at 8-9 (citing Wilson, 526 U.S. at 615). But the specificity
requirement does not mean "that an official action is protected by
qualified immunity unless the very action in question has previously been
held unlawful." Hope v. Pelzer, 536 U.S. 730, 739 (2002). In fact, the
Supreme Court has "expressly rejected a requirement that previous cases
be `fundamentally similar,'" concluding that "officials can still be on
notice that their conduct violates established law even in novel factual
circumstances." Id. at 741. The question thus turns on whether "in the
light of pre-existing law the unlawfulness [was] apparent."
Id. at 739 (quoting Anderson, 483 U.S. at 640). Accepting the plaintiffs'
allegations as true, the court concludes that here, the state of the law
certainly would have given the defendants fair warning that their actions
were unconstitutional. Id. at 741. In its string of decisions, the Court
whose binding precedent clearly "establishes" the law
made clear that the special-needs doctrine permits suspicionless drug
testing of certain employees by agencies as long as the testing is
performed for reasons unrelated to law enforcement. Hobson v. Wilson,
737 F.2d 1, 26 (D.C. Cir. 1984), overruled in part on other grounds,
507 U.S. 163 (1993); Ferguson v. City of Charleston, 532 U.S. 67, 79-80
& n.15 (2001). For example, in Von Raab, the Court upheld the Custom
Service's drug testing program for employees required to carry firearms
because the program "[was] not designed to serve the ordinary needs of
law enforcement." Von Raab, 489 U.S. at 664-65. Against this background,
and given the similarity between the Customs Service program and the
defendants' urinalysis program, the unlawfulness of the defendants'
alleged actions in 1999-2000 should have been "apparent" to the
defendants.*fn6 Hope, 536 U.S. at 739.
For the foregoing reasons, the court denies the defendants' motion to
alter or amend judgment. An order consistent with this Memorandum Opinion
is separately and contemporaneously issued this 26th day of February,