The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
MEMORANDUM OPINION DENYING THE DEFENDANTS' MOTION TO ALTER OR AMEND JUDGMENT
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 capacities.*fn1 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 defendants' motion.
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 meeting 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 judgment, 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.
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. ...