Opinion
Civil Action No. 02-1049 (SBC).
March 22, 2005
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Richard Drake was a Delta Airlines flight attendant. Delta terminated his employment because he allegedly adulterated his urine sample during a federally-mandated drug test. Drake filed two lawsuits naming the Department of Transportation ("DOT"), its Secretary, three DOT employees, and three Federal Aviation Administration ("FAA") employees, claiming they violated his Fourth, Fifth and Fourteenth Amendment rights by failing to properly investigate his 1993 drug test and Delta's drug testing procedures, and by failing to take corrective action against Delta for violating FAA's drug testing regulations. The lawsuits were consolidated into one action, Case No. 02-1049. See Dkt. No. 9, Case No. 02-1049. Defendants move to dismiss the case for failure to state a claim under Fed.R.Civ.P. 12(b)(6), and because Drake's claims are barred by res judicata, collateral estoppel, sovereign immunity, and the statute of limitations.
This case was reassigned by the Chief Justice of the United States to the Honorable Suzanne B. Conlon, District Judge for the Northern District of Illinois.
BACKGROUND
Drake filed two separate lawsuits in the District Court for the District of Columbia. In Drake v. Cappelle, et al., Civil Action No. 02-1049 ("Drake I"), he sued three FAA employees. In Drake v. Dept. of Transportation, et al., Civil Action No. 02-1050 ("Drake II"), Drake sued DOT, its Secretary, and three DOT employees. On August 28, 2002, Drake II was consolidated with Drake I and Case No. 02-1050 was administratively closed. See Dkt. No. 9. For purposes of deciding this motion to dismiss, the court must accept all well-pleaded allegations in the Drake I and Drake II complaints as true and draw all reasonable inferences in Drake's favor. See Stachon v. United Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir. 2000). The consolidated complaints contain nearly identical factual allegations. The facts assumed to be true are alleged in both complaints unless otherwise noted.On November 21, 1988, FAA issued regulations requiring airline employees who perform safety sensitive tasks to submit to random drug tests. See 49 C.F.R. Part 40. In 1989, DOT amended the drug testing regulations to include flight attendants in the category of employees required to undergo drug testing. Under the 1988 drug testing regulations, a submission of an adulterated urine sample was treated as a refusal to provide a sample. 49 C.F.R. § 219.11(b)(4). An employee who refused to provide a sample was disqualified for nine months from performing safety-sensitive duties, but was not required to be terminated from employment. 49 C.F.R. 219.107(a). The 1988 regulations were replaced with new regulations on September 19, 1994.
Drake was a flight attendant for Delta and was required to undergo random drug testing for illegal drugs pursuant to FAA drug testing regulations. On October 28, 1993, he submitted a urine sample to Delta for drug testing. Delta determined Drake's urine sample was adulterated and terminated his employment. Delta's drug testing procedures failed to comply with FAA drug testing regulations.
In accordance with administrative procedures set forth in FAA regulations, Drake filed an administrative complaint in 1988 alleging Delta violated FAA drug testing regulations. More specifically, Drake alleged Delta; targeted him for repeated testing instead of using the required random selection process, falsified Drake's drug test records, went beyond the regulations in conducting multiple tests of his urine specimen, and failed to provide him documents relating to his drug test. FAA investigated his complaint. FAA investigators Patrice Kelly, Diane Wood and Karmen Leamon met with Drake in September 1998 to discuss his complaint. Drake gave the FAA investigators a copy of an altered drug test result he received from Delta. Drake told the FAA investigators that Delta failed to maintain all testing records relating to his 1993 drug test. FAA continued to investigate Drake's complaint through November 1998, Michelle Cappelle investigated Delta's drug testing procedures. Drake thereafter received a letter from Stephen Hecht of the FAA summarizing FAA's findings. The letter reported no violations of FAA's drug testing regulations. Drake then sought information from the FAA investigators. They refused to discuss the investigation with him or to provide him any documents absent a Freedom of Information Act ("FOIA") request. Drake made a FOIA request for documents. FAA denied his request, claiming the documents were excepted from production under FOIA.
See July 18, 2001 letter from DOT's Inspector General attached to Drake's opposition brief. Drake refers to the letter in both complaints, and attaches the letter to his opposition brief. Therefore, the court may consider the letter for purposes of deciding this motion to dismiss. RUF v. American Broadcasting Co., 1999 U.S. Dist. LEXIS 1092, at *27, n. 10 (D.D.C. Jan. 29, 1999).
In August 1999, Drake complained to DOT's Inspector General about FAA's investigation. Helen Robinson investigated Drake's complaint and found no improprieties. Drake then contacted his congressman for assistance. In June 2000, Drake's congressman asked DOT to investigate Drake's 1993 drug test and termination from Delta. As a result, the DOT Inspector General's office reviewed FAA's investigation. On July 18, 2001, DOT Inspector General Kenneth Mead sent a letter to Drake's congressman summarizing his findings. Mead noted some problems with FAA's investigation and Delta's drug testing procedures. Mead found irregularities in the custody and processing of Drake's urine sample between three separate laboratories. He also noted Delta provided Drake only a fraction of the documents to which he was entitled under the regulations. Mead's letter concluded there was no evidence FAA attempted to conceal any improprieties from Drake, and that although FAA could have probed deeper into the issues raised in Drake's complaint, FAA made a good-faith effort to investigate.
Rick Beitel, a DOT special agent, participated in DOT's investigation, Drake II complaint at ¶ 35. Diane Wood, an FAA manager, refused to take any corrective action against Delta or to issue a report reflecting all Delta's violations. Drake 1 complaint at ¶ 31. Wood's failure to issue a new report prevented DOT's Secretary from taking corrective action against Delta. Id. Beitel refused to reconsider any of DOT's findings. Drake II complaint at ¶ 36.
Ken Edgell, a DOT acting director, failed to cancel Drake's drug test. Drake notified Norman Mineta, DOT's Secretary, that Edgell refused to take proper action and that non-union flight attendants had inadequate relief under FAA drug testing regulations. Drake II complaint ¶ 37A. Edgell notified Drake on February 8, 2002 that Delta's procedures did not violate FAA drug testing regulations. Drake II complaint at ¶ 37B.
On April 30, 2002, during a deposition in a related proceeding, Drake discovered additional evidence that Delta failed to comply with FAA drug testing regulations. Drake saw the original custody and control form from one of his drug tests; unlike the copy Delta gave him, the form reflected a negative test result. Drake I complaint at ¶ 32. Cappelle saw both the original document and the altered copy during the FAA investigation. Id. Cappelle, Wood and Hecht concealed Delta's fraudulent alteration of the drug test record from Drake. Id. Drake also discovered Delta violated the confidentiality provisions in FAA's drug testing regulations. Id. at ¶ 33. Cappelle, Hecht and Wood knew of the confidentiality violations when they investigated Drake's complaint, but concealed the information from him. Id.
The Drake 1 complaint asserts four counts against FAA investigators Cappelle, Hecht and Wood. In Count 1, Drake alleges defendants violated his Fourth and Fifth Amendment rights by failing to properly investigate Delta's drug testing procedures and failing to take action against Delta even after they knew Delta violated FAA drug testing regulations. He brings Bivens and 28 U.S.C. § 1983 claims against defendants in Count I. In Count II, he claims defendants conspired with Delta to fraudulently conceal Delta's violations from him. In Count III, he alleges defendants violated his Fifth Amendment rights by depriving him of a constitutionally protected liberty interest without due process. In Count IV, he claims defendants violated his Fourth Amendment rights by failing to report Delta's violations.
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcoties, 403 U.S. 388, 389 (1971), the Supreme Court held that victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court.
The Drake II complaint asserts six claims against DOT, Mineta, Edgell, Beitel and Robinson. In Count I, Drake claims DOT's failure to cancel his drug test was improper agency action reviewable under the Administrative Procedures Act. In Count II, he alleges DOT's drug testing program, as administered by Delta, violated his Fifth Amendment rights by depriving him of a constitutionally protected liberty interest without due process. Counts III, IV and V allege Bivens and § 1983 claims against Edgell, Beitel and Robinson. He claims they violated his Fourth Amendment rights by failing to determine that Delta violated drug testing regulations, and by failing to take corrective action against Delta. Finally, in Count VI, he alleges DOT's drug testing program violates the Fourth Amendment as applied to flight attendants.
RELATED PROCEEDINGS
This is the fifth lawsuit Drake has filed relating to his 1993 drug test and termination from Delta. Because defendants seek to dismiss the consolidated complaints on grounds of res judicata and collateral estoppel, the court must carefully consider prior related cases.
I. Drake v. Delta Airlines, Inc.
In his lawsuit against Delta, Drake's pro se complaint alleged Delta violated FAA drug testing regulations and the Fourth Amendment by using improper drug testing procedures during his 1993 drug test. See Drake v. Delta Airlines, Inc., 923 F. Supp. 387 (E.D.N.Y. 1996). The court granted Delta's Rule 12(b)(6) motion to dismiss the complaint. As to the first claim, the court held Congress did not authorize a private right of action against an airline for violating FAA drug testing regulations. As to the Fourth Amendment claim, the court considered Delta a government agent for purposes of the motion to dismiss, but determined the drug test was reasonable as a matter of law. Id. at 397. The court dismissed the complaint, but gave Drake leave to file an amended complaint.
In his amended complaint, Drake asserted wrongful termination and due process claims. Drake alleged Delta violated his due process rights by failing to comply with FAA drug testing regulations and terminating his employment. The court dismissed both claims in the amended complaint. See Drake v. Delta Airlines, Inc., 1997 U.S. Dist. LEXIS 22753 (E.D.N.Y. 1997). The court rejected Drake's claim that Delta's failure to comply with FAA regulations violated his due process rights because the regulations did not create a private right of action against Delta. The court also rejected the claim that Delta's termination of his employment violated his due process rights because "Delta did not act as a government agent in its . . . decision to terminate Drake's employment." Id. at *11 In other words, Delta's decision to terminate Drake's employment was private action not subject to due process requirements. Id. at *10. Merely because it used the results of a federally-mandated drug test as the basis for Drake's termination, Delta was not transformed from a private employer to a government actor for purposes of the due process clause. Id.
Drake appealed the dismissal of his amended complaint. Dismissal of his wrongful termination claim was affirmed because Drake was an at-will employee. Drake v. Delta Airlines, Inc., 147 F.3d 169, 170-1 (2nd Cir. 1998). Dismissal of his due process claim was affirmed because FAA drug testing regulations do not provide an implied private right of action. Id. The court noted that Drake had an administrative remedy: he could file a complaint with the Secretary of Transportation. Id. at 171, n. 2. However, dismissal of Drake's Fourth Amendment claim was reversed to the extent he claimed Delta did not randomly select him for testing in 1993. Id. at 172. Delta did not have a warrant for the drug test and there was no evidence Delta had probable cause to believe Drake was using drugs. Thus, Delta could only lawfully test Drake under the random selection process set forth in the regulations. Drake alleged Delta targeted him for selection in violation of the random selection procedures. Drake stated a Fourth Amendment claim against Delta based on these allegations. Id. The case was remanded and tried to a jury. On October 12, 2004, the jury returned a verdict for Drake. See Dkt. No. 134, Case No. 94-5944. The court has not entered judgment on the verdict. Post-trial motions remain pending in the United States District Court for the Eastern District of New York.
Drake filed a FAA administrative complaint in 1998. Drake II complaint at ¶ 9.
II. Drake v. Federal Aviation Administration ("FAA I")
In his first action against the FAA, Drake alleged FAA drug testing regulations violated his Fourth Amendment and due process rights. He contended the drug testing regulations failed to provide adequate hearing opportunities and should have included a private right to sue carriers that run afoul of the regulations. See Drake v. FAA, 2000 U.S. Dist. LEXIS 22096 (D.D.C. July 31. 2000). Drake asked the court to compel FAA to include the right to procedural due process in its drug testing regulations.
FAA moved to dismiss the complaint for failure to state a claim. Relying primarily on Cronin v. Federal Aviation Administration, 73 F.3d 1126 (D.C. Cir. 1996), Drake argued FAA regulations did not provide employees who failed a drug test adequate procedural due process protections. In Cronin, the government conceded that procedural due process protections must be afforded to any employee subjected to a permanent employment bar mandated by federal drug testing regulations. Id. at 1132. Unlike the regulations at issue in Cronin, the drug testing regulations in force at the time of Drake's testing did not mandate a permanent employment bar under any conditions. Drake v. FAA, 2000 U.S. Dist. LEXIS 22096, at *5-6 (D.D.C. July 31, 2000). Therefore, Drake could not rely on Cronin to support his due process claim.
Drake next argued his termination had the same effect as a permanent employment ban because no other airline would interview or hire him as a result of his termination for failing a drug test. Id. at *6. The court rejected this argument because due process protections attached only when the regulations themselves prohibit airlines from offering their employees a second chance. Id. at *7. In any event, the court reviewed the procedures afforded Drake by FAA and Delta to contest his drug test results. Delta voluntarily granted Drake a hearing following his drug test to provide him an opportunity to prove his innocence. Drake initiated an investigation with the Secretary of Transportation pursuant to FAA administrative procedures. FAA management personnel met with Drake to discuss the alleged violations. FAA sent a seven member inspection team to investigate Delta's procedures before concluding that the airline acted in accordance with FAA regulations. Id. at 11-12. The court concluded that Drake failed to state a due process claim because "plaintiff's allegations, even if presumed to be true, fail to establish that Drake's termination was attributable to his inability to contest the results of his drug test." Id. at *12.
The court also held it could not award the relief sought by Drake. He requested due process protections and a right to maintain a private action against Delta. As to the first request, the court determined it would be futile to retroactively augment the procedural guarantees for regulations no longer in effect. The court also found it was foreclosed from ruling that additional due process rights should accompany new regulations in a case that arose under the old regulations. Id. at *13. As to Drake's second request, the court held it could not grant a right of private action against the FAA because a private cause of action against the FAA is "barred by sovereign immunity. . . ." Id. at *13-14.
Dismissal of the complaint was summarily affirmed. See Drake v. FAA, 2001 U.S. App. LEXIS 7557 (D.D.C. March 16, 2001) (unpublished) ("The merits of the parties' positions are so clear as to warrant summary action").
III. Drake v. Federal Aviation Administration ("FAA II")
Drake filed a second pro se complaint against FAA alleging its determination that Delta had not violated drug testing regulations was unreasonable and the product of a conspiracy between FAA and Delta. See Drake v. FAA, Case No. 99-2790 (D.D.C.). He asked the court to compel FAA to complete a proper, fair investigation of Delta, and to release all information to him pertaining to the investigation. See Drake v. FAA, 2000 U.S. Dist. LEXIS 22097 (D.D.C. July 31, 2000).
FAA II was reassigned to the same judge who presided over FAA I because the two cases were related. See 2/3/2000 Docket entry, Case No. 99-2790.
FAA successively moved to dismiss the case. The court held the claims asserted in FAA II were barred by res judicata because they grew out of the same core facts as FAA I. See Drake, 2000 U.S. Dist. LEXIS 22097, at *6-8. The court went on to consider the merits of Drake's allegations and found sovereign immunity barred his claims against FAA. Id. at *12. The court also determined Drake's request for documents was governed by FOIA, not § 40.37 of FAA's regulations, and that Drake was not entitled to judicial review of FAA's decision to withhold documents under a FOIA exception. Id. at *14-15.
Dismissal of FAA 11 was affirmed on appeal. See Drake v. FAA, 291 F.3d 59 (D.C. Cir. 2002). However, the district court erred in applying res judicata because the claims asserted in FAA II were based on a different nucleus of facts than the claims advanced in FAA I. Id. at 66-67. In FAA I, Drake challenged the constitutionality of the regulations. In FAA II, Drake challenged FAA's investigation under the regulations. Because the material facts underlying FAA II were not in existence at the time Drake filed FAA I, res judicata did not apply. Id. at 67. Drake's claims were properly dismissed for other reasons. First, Drake's request for documents was properly dismissed because § 40.37 of the drug testing regulations did not apply to FAA. Id. at 69. Second, Drake could not state a claim under the Administrative Procedures Act based on FAA's determination to dismiss his complaint because FAA's decision was committed to agency discretion and therefore was excluded from administrative review. Id. at 70-72. Finally, Drake could not maintain a Bivens claim against FAA, and that agency's decision to dismiss his administrative complaint could not give rise to Federal Tort Claims Act liability against the United States. Id. at 72-73. Drake's request to amend his complaint to add Bivens claims against individual defendants was denied as untimely. Id. at 72. By appealing his case before seeking leave to amend in the district court, Drake waived his right to amend his pleadings. Id.
IV. Drake v. Laboratory Corporation of America, et. al
Drake's fourth case arose out of his 1993 drug test against the drug testing laboratories and personnel who processed his tests. He claimed defendants violated his Fourth Amendment rights by altering his test results, improperly processing his test results, and concealing improprieties from him. See Drake v. Laboratory Corporation of America, 290 F. Supp. 2d 352, 357-8 (E.D.N.Y. 2003). Drake also claimed defendants violated his Fourteenth Amendment due process rights by intentionally destroying or losing his drug test records, and failing to safeguard his urine sample in the chain of custody. Id. at 358. He asserted a panoply of state court claims based on the same allegations.
Defendants successfully moved to dismiss the federal claims. As to the Fourth Amendment claim, Drake argued "when the integrity of the regulatory testing procedures have been so compromised as to lead inexorably to the wrong result, the Fourth Amendment is implicated." Id. at 359. The court rejected this argument because no matter how inappropriate the testing procedures may have been, even to the extent of reaching an incorrect result, the procedures "were limited to the lawful search for adulterants." Id. at 360. Thus, Drake could not state a Fourth Amendment claim based on allegedly flawed testing procedures.
As to the Fourteenth Amendment claim, Drake alleged defendants violated his due process rights by failing to preserve and maintain his test records and urine sample. He also alleged his Fourteenth Amendment rights were violated because he was labeled a drug user and thereby lost the ability to pursue his profession free from stigma. Id. at 360-361. The court found these allegations insufficient to allege an actionable loss of property or liberty because "the FAA regulations do not confer any property interests" and the loss of private employment coupled with a foreclosure of other employment opportunities is not a cognizable liberty interest. Id.
On November 19, 2003, the district court dismissed the federal claims, but denied dismissal of the state law claims. Id. at 376. The court certified a preemption issue for interlocutory appeal. On March 1, 2005, Drake's counsel sent a letter to the court requesting certification of the November 19, 2003 dismissal order pursuant to Fed.R.Civ.P. 54(b) to allow Drake to appeal dismissal of his federal claims. As of the date of this order, the United States Court of Appeals for the Second Circuit has not ruled on Drake's request.
DISCUSSION
I. Legal Standard
A motion to dismiss tests the sufficiency of the complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, the court considers "whether relief is possible under any set of facts that could be established consistent with the allegations." Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 839 (7th Cir. 1999), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A motion to dismiss should not be granted "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46.
II. Res Judicata
Defendants argue Drake is barred by res judicata from relitigating his claims based on the rulings in FAA I and FAA II. Res judicata serves the dual purpose of protecting litigants from the burden of relitigating an identical issue against the same party or his privy and of promoting judicial economy by preventing needless duplicative litigation. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). Under res judicata, or claim preclusion, a final judgment on the merits of a case precludes the parties or their privies from relitigating claims that were or could have been raised in an earlier case. Carter v. Rubin, 14 F. Supp. 2d 22, 33 (D.D.C. 1998). In order for res judicata to apply, there must be: (1) an identity of the cause of action in both suits; (2) an identity of the parties in both suits; (3) a final judgment on the merits; and (4) a judgment rendered by a court of competent jurisdiction. Polsby v. Thompson, 201 F. Supp. 2d 45, 48 (D.D.C. 2002); Paley v. Estate of Ogus, 20 F. Supp. 2d 83, 86 (D.D.C. 1998).
A. Identity of the Causes of Action
In deciding whether to apply res judicata, the court must first determine whether Drake's claims arise out of the same nucleus of facts as the claims asserted in FAA I and FAA II. Velikonja v. Ashcroft, 2005 U.S. Dist. LEXIS 178, at *7 (D.D.C. Jan. 6, 2005). The D.C. Circuit has adopted the "pragmatic, transactional" approach found in the Restatement (Second) of Judgments § 23(2) (1982). Polsby, 201 F. Supp. 2d at 50. Under this approach, the court considers whether the facts are related in time, space, origin, or motivation, and whether they form a convenient trial unit. Id. Res judicata does not bar parties from bringing claims based on new material facts that were not in existence when the original suit was filed. Drake v. F.A.A., 291 F.3d at 66-67. On the other hand, if new facts are not material to the litigation and the claims arise out of the same core facts, res judicata applies. See, e.g., Polsby, 201 F. Supp. 2d at 50; Dubuc v. City of Tulsa, 1999 U.S. App. LEXIS 20641, at * 6 (10th Cir. Aug. 27, 1999); Holt Hauling Warehousing, inc. v. Port of Philadelphia Camden, Inc., 1998 U.S. Dist. LEXIS 12735, at *33 (E.D. Pa. Aug. 17, 1998).
1. Drake I
In Count 1, Drake asserts Bivens and § 1983 claims against the FAA investigators claiming they improperly investigated his administrative complaint and intentionally failed to report Delta's violations. Count I arises out of the same core facts as those alleged in FAA II. In FAA II, he asserted constitutional claims, including a Bivens claim, arising out of FAA's investigation of his administrative complaint and determination that Delta did not violate drug testing regulations. See Drake v. FAA, 291 F.3d at 66. Dismissal of the Bivens claim against FAA was affirmed because Bivens liability cannot be imposed on an agency. Id. at 72. Drake's request to amend his complaint to add Bivens claims against FAA employees was denied because he waived his right to amend by failing to seek leave from the district court. Id. Drake could have brought his Bivens claims against FAA employees as part of FAA II, but he failed to timely amend his complaint. Because Count I arises out of the same nucleus of facts as FAA II, the first res judicata element is satisfied. See Apotex, Inc. v. Food Drug Administration, 393 F.3d 210, 217 (D.C. Cir. 2004) (applying res judicata where plaintiff could have brought claims in first action, but chose not to).
Nor can Drake avoid res judicata by alleging additional evidence or a new legal theory under § 1983. Id.; Dubuc, 1999 U.S. App. 20641, at *6. He attempts to avoid res judicata by arguing his claims are based on DOT's July 18, 2001 findings, and newly discovered information. A careful review of the allegations asserted in Count I proves otherwise. Like FAA II, Count I attacks the FAA investigators' determination that Delta did not violate the drug testing regulations. See, e.g., Drake I complaint ¶¶ 54, 55, 57, 61, 62. Count I is not based on the July 18, 2001 letter, or any newly discovered evidence. Rather, Drake alleges the letter and newly discovered evidence "confirm" FAA's failure to properly investigate. Id. at ¶¶ 42, 52. The purported new evidence supporting Count I does not preclude application of res judicata. Dubuc, 1999 U.S. App. 20641, at *6.
Count II asserts fraud and conspiracy claims against the FAA investigators. Drake alleges the FAA investigators conspired with Delta to fraudulently conceal Delta's violations. More specifically, he claims defendants must have known Delta altered his drug test records, but conspired with Delta to fraudulently conceal the altered records from him. Drake I complaint ¶¶ 66-67, 71-72. Once again, Count II involves the same core facts as those alleged in FAA II, in which he alleged FAA conspired with Delta to conceal the airline's violations of drug testing regulations. See Drake v. FAA, 291 F.3d at 65. Therefore, the first res judicata element is satisfied as to Count II.
Count III asserts the drug testing regulations violated Drake's Fifth Amendment rights by failing to provide him adequate due process protections. He seeks to hold defendants accountable for Delta's decision to terminate his employment. Count III mirrors the claims litigated in FAA I. See Drake v. FAA, 2000 U.S. Dist. LEXIS 22096 (D.D.C. July 31, 2000). In FAA I, Drake challenged the constitutionality of the drug testing regulations. There are no new facts or changed circumstances alleged in Count III. Thus, the first res judicata factor is met.
In Count IV, Drake alleges defendants violated his Fourth Amendment rights by failing to report Delta's violations and failing to take corrective action after DOT issued the July 18, 2001 letter. He alleges the July 18, 2001 letter "directed" defendants to take corrective action, but they failed to do so. Drake I complaint ¶¶ 84-85. In FAA II, he alleged FAA violated his Fourth Amendment rights by failing to take corrective action against Delta. Dismissal of the claim was affirmed because the Administrative Procedures Act bars review of FAA's decision not to bring an enforcement action. See Drake, 291 F.3d at 72. 49 U.S.C. § 46101 (a)(3) grants FAA unfettered discretion to decide whether to dismiss an administrative complaint or to bring an enforcement action. Thus, FAA's administrative decision was not reviewable. Id. Drake seeks to avoid the res judicata effect of this ruling because he did not have DOT's July 18, 2001 letter when he filed FAA II. The court must therefore decide whether this letter is a new material fact that precludes application of res judicata. See Drake, 291 F.3d at 66-67.
Drake attaches a copy of DOT's July 18, 2001 letter to his opposition brief. The letter did not "direct" FAA to take corrective action. Rather, the letter recommended the Departmental Office of Drug and Alcohol Policy "review Mr. Drake's case for both national policy implications and any appropriate corrective action" and independently assess "whether the actions of Delta, its MRO [medical review officer], or any laboratories [`violated'] 49 CFR Part 40." The letter did not divest the FAA of its agency discretion under 49 U.S.C. § 46101(a), nor is the letter a new material fact. Count IV involves the same material facts as those asserted in FAA II, and is barred by the ruling in Drake v. FAA, 291 F.3d at 72.
2. Drake II
Count I asserts a claim against DOT under the Administrative Procedures Act. Drake alleges DOT's failure to cancel his drug test as a result of the findings made in its July 18, 2001 letter constituted improper agency action. He seeks judicial review of DOT's decision not to bring an enforcement action against Delta. Count I arises out of DOT's investigation, not the FAA investigation. Similarly, Counts III through V center on DOT's investigation, not FAA's investigation. DOT had not completed its investigation or issued the July 18, 2001 letter until after the FAA I and FAA II decisions. Thus, Counts I, III, IV and V are not based on the same nucleus of facts as FAA I or FAA II, and are not barred by res judicata.
However, in Counts II and VI, Drake challenges the constitutionality of the drug testing regulations under the Fourth, Fifth and Fourteenth Amendments. These claims mirror the constitutional claims asserted in FAA I, and are not based on any new material facts. Thus, the first res judicata factor is satisfied as to Counts II and VI.
B. Identity of the Parties
The court must next determine whether there is an identity of parties between defendants and FAA. There is privity between officers of the same government. A judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the United States. Sunshine Anthrocite Coal Co. v. Adkins, 310 U.S. 381, 402-3 (1940); Mervin v. FTC, 591 F.2d 821, 830 (D.C. Cir. 1971) (prior case against Civil Service Commission barred subsequent case against Federal Trade Commission under res judicata principles). Thus, there is privity between the FAA and its employees, DOT, and DOT employees. The second res judicata factor is satisfied on all claims.
C. Final Judgment on the Merits by Court of Competent Jurisdiction
Next, the court must decide whether final judgments were rendered by courts of competent jurisdiction in FAA I and FAA II. Both FAA I and FAA II were dismissed for failure to state a claim by the district court. The dismissals were upheld on appeal. See Drake v. FAA, 2001 U.S. App. LEXIS 7557 (D.D.C. March 16, 2001); Drake v. FAA, 291 F.3d 59 (D.C. Cir. 2002). Thus, courts of competent jurisdiction rendered final judgments on the merits in both FAA I and FAA II, and the fourth res judicata element is satisfied. See Polsby v. Thompson, 201 F. Supp. 2d 45, 49 (D.D.C. 2002) (dismissal for failure to state a claim is a final judgment on the merits for purposes of res judicata).
D. Conclusion
All four res judicata elements are satisfied as to all claims in Drake I and as to Counts II and VI of Drake II. The court must therefore dismiss those claims with prejudice.
III. Collateral Estoppel
Defendants argue Drake's claims are barred by collateral estoppel as a result of prior court rulings in related litigation. Because res judicata bars all claims in Drake I and Counts II and VI of Drake II, the court must consider whether Drake is collaterally estopped from relitigating his remaining claims.
The doctrine of collateral estoppel prohibits relitigation of an issue of fact or law that was decided in earlier litigation. SEC v. Bilzerian, 29 F.3d 689, 693 (D.C. Cir. 1994). The objective of collateral estoppel is judicial finality. Yamaha Corp. of America v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992). Once an issue is raised and determined, the entire issue is precluded, not just the particular arguments advanced in the first case. Id. The pendency of an appeal does not diminish the collateral estoppel effect of a prior court decision. Southern Pacific Communications Co. v. ATT, 740 F.2d 1011, 1018 (D.C. Cir. 1984). Defensive use of collateral estoppel precludes a plaintiff from relitigating issues that have already been decided by merely switching adversaries. Parklane Hosiery, 439 U.S. at 328; McCord v. Bailey, 636 F.2d 606, 609, n. 1 (D.C. Cir. 1980).
Three elements must be established for collateral estoppel to apply. First, the issue must have been contested by the parties and submitted for judicial determination in the prior case. Second, the issue must have been actually and necessarily determined by a court of competent jurisdiction in the prior case. Third, preclusion must not be unfair to the party bound by the first determination. Yamaha, 961 F.2d at 254. Changes in facts essential to a judgment render collateral estoppel inapplicable in a subsequent action raising the same issues. Montana v. United States, 440 U.S. 147, 159 (1979). However, where the changed facts are not material and therefore are not controlling facts, collateral estoppel applies. Id.; Croskey v. United States Office of Special Counsel, 1997 U.S. App. LEXIS 34643, at *15, n. 3 (D.C. Cir. Oct. 17, 1997).
A. Count I of Drake II
Count I seeks judicial review under the Administrative Procedures Act of DOT's decision not to take corrective action against Delta. In FAA II, the court held Drake could not seek judicial review under the Administrative Procedures Act of FAA's decision not to bring an enforcement action because that decision was committed to agency discretion. Drake, 291 F.3d at 70-72. Citing Supreme Court authority, the court held certain categories of administrative decisions, including refusal to take enforcement action, 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, 124 L. Ed. 2d 101, 113 S. Ct. 2024 (1993). In holding that FAA's decision was discretionary, the court relied on § 46101(a) of the FAA regulations, which provides:
The Secretary of Transportation or Administrator may dismiss a complaint without a hearing when the Secretary or Administrator is of the opinion that the complaint does not state facts that warrant an investigation or action.
In Count I, Drake seeks judicial review of DOT's decision not to bring an enforcement action against Delta. He argues his claim is different than FAA II because it is brought against DOT and is based on findings made in its July 18, 2001 letter. These changed facts are immaterial to the court's ruling in FAA II. DOT's July 18, 2001 letter did not divest FAA or DOT of agency discretion. Moreover, § 46101(a)(3) applies with equal force to DOT because it explicitly refers to the Secretary of Transportation. The court must therefore dismiss Count I because the dispositive issue — whether DOT's decision not to bring an enforcement action is reviewable — has been decided against Drake by a court of competent jurisdiction.
B. Counts III Through V of Drake II
Defendants claim Counts III through V are barred by collateral estoppel because Drake previously litigated these issues. Counts III through V assert Bivens claims against three DOT employees arising out of their investigation of Drake's administrative complaint. He claims their investigations violated his Fourth and Fifth Amendment rights. In Bivens, the Supreme Court held that victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring a right of action. 403 U.S. 388, 389 (1971). Thus, whether defendants violated Drake's Fourth and Fifth Amendment rights are dispositive issues for Counts III through V.
1. Fourth Amendment
Drake alleges DOT's failure to properly investigate his administrative complaint violated his Fourth Amendment rights. Drake II complaint ¶¶ 82, 95, 103. Drake litigated whether his Fourth Amendment rights were violated as a result of his drug test in Drake v. Laboratory Corporation of America, 290 F.Supp.2d at 360. He claimed the testing procedures used to process his urine sample were so compromised as to implicate the Fourth Amendment. Id. at 359. He even relied on the findings in DOT's July 18, 2001 letter as a basis for his claim. Id. at 358, n. 7. The court unequivocally held "vindication cannot come by way of the Fourth Amendment." Id. The court dismissed his Fourth Amendment claim because defendants did not participate in the collection of his urine, his privacy interests after his urine was collected were minimal, and the drug test was limited to the lawful search for adulterants. Id. at 359-60.
This determination is binding on Drake and dispositive of his Fourth Amendment claims in Counts III through V. He does not allege defendants participated in the collection of his urine sample. Thus, he cannot base his Fourth Amendment claim against defendants on the collection of his urine sample. A court of competent jurisdiction determined that once his urine was collected, the drug test was reasonable because it was limited to a lawful search for adulterants. Drake cannot relitigate his Fourth Amendment claim in Counts III through V.
2. Fifth Amendment
Drake alleges DOT employees violated his Fifth Amendment due process rights by arbitrarily and capriciously investigating his administrative complaint. Drake II complaint ¶¶ 89, 95, 103. In FAA I, the court determined Drake was not entitled to procedural due process rights under the drug testing regulations because the regulations did not require Delta to terminate his employment. Drake v. FAA, 2000 U.S. Dist. LEXIS 22096, at *5-6. Similarly, in Drake v. Laboratory Corporation of America, 290 F. Supp. 2d at 361, the court dismissed Drake's due process claim under the Fourteenth Amendment because "the FAA regulations do not confer any property interests." Drake has fully and fairly litigated whether he was entitled to due process protections under FAA drug testing regulations. Drake v. FAA, 2000 U.S. Dist. LEXIS 22096, at *5-6. He may not relitigate his due process claim in Counts III through V.
C. Fairness Considerations
Finally, the court must also consider whether it would be unfair to apply collateral estoppel to bar Drake's claims. He has filed numerous lawsuits and several appeals arising out of the same set of facts. It is not unfair to bar him from relitigating the same constitutional issues against new defendants. Indeed, this is precisely the situation that warrants application of collateral estoppel to prevent duplicative and harassing litigation. The court must therefore dismiss Counts I, III, IV and V of Drake II because the dispositive issues have been determined against Drake by courts of competent jurisdiction.
D. Conclusion
All Drake's claims are barred by either res judicata or collateral estoppel; all cases must be dismissed with prejudice.
IV. Alternative Grounds for Dismissal
Defendants advance alternative grounds for dismissal. For the sake of completeness, the court considers these alternative grounds.
A. Sovereign Immunity
DOT argues sovereign immunity bars Count II of Drake II, which seeks an order compelling DOT to provide due process rights under the drug testing regulations. A suit against the United States absent its consent cannot be maintained if the judgment sought would expend itself on the public treasury or domain, interfere with the public administration, if the effect of the judgment would be to restrain the government from acting, or to compel the government to act. Hawaii v. Gordon, 373 U.S. 57, 58 (1963); Dugan v. Rank, 372 U.S. 609, 620 (1963). A suit against an executive department of the United States is a suit against the United States subject to the defense of sovereign immunity. Id. Congress did not waive sovereign immunity in the Omnibus Transportation Employee Testing Act of 1991 ("Testing Act"). Drake v. FAA, 2000 U.S. Dist. LEXIS 22096, at *13, citing, Drake v. Delta Airlines, 923 F.Supp. 387, 392 (E.D.N.Y. 1996), aff'd in part and vacated in part, 147 F.3d 169 (2nd Cir. 1998).
In Count II, Drake seeks an order compelling DOT to grant him due process rights under the drug testing regulations. Even if Count II were not barred by res judicata, dismissal would still be required. See Drake v. FAA, 2000 U.S. Dist. LEXIS 22096, at *13-14.
B. Immunity for FAA and DOT Employees
Liberally construed, Drake's complaints purport to state a variety of common law tort claims against the FAA and DOT employees. See e.g., Drake 1 complaint ¶ 2, 72. Under 28 U.S.C. § 2679 (b)(1), a government employee is immune from suit for injury or loss of property, or personal injury arising or resulting from the negligent or wrongful act or omission within the scope of his office or employment. The statute codifies an absolute immunity for federal officials from liability for common law tort claims. A plaintiff's sole remedy for common law torts based on a federal official's conduct within the scope of his authority is a claim against the United States under the Federal Tort Claims Act. See United States v. Smith, 499 U.S. 160, 163 (1991); Robinson v. Egnor, 699 F.Supp. 1207, 1214 (D. Va. 1988). Drake's common law tort claims against the FAA and DOT employees arising out of their investigations and determinations on his administrative complaint must be dismissed because they are barred by absolute immunity. See Robinson, 699 F.Supp. at 1215; Purk v. United States, 747 F.Supp. 1243, 1248 (S.D. Oh. 1989).
Defendants argue the Bivens claims are barred by qualified immunity. Absolute immunity does not apply to constitutional torts, such as Bivens claims. Purk, 747 F.Supp. at 1249. Rather, federal officials enjoy qualified immunity from constitutional torts. Cleavinger v. Saxner, 474 U.S. 193, 206 (1985). The court need not decide whether qualified immunity bars Drake's Bivens claims because, as set forth below, he has not stated a constitutional violation. C. Bivens Claims
In support of his Bivens claims, Drake alleges defendants violated his Fourth and Fifth Amendment rights. For the reasons set forth above, Drake cannot state a constitutional violation based on the Fourth Amendment. See also Drake v. Laboratory Corp. of America, 290 F.Supp.2d at 359-360. As to his Fifth Amendment claim, he alleges defendants interfered with his right to pursue useful employment. Drake 1 complaint ¶ 80; Drake II complaint ¶¶ 69-73. He seeks to hold the FAA and DOT employees accountable for Delta's termination. In order to state a procedural due process claim, he must first show he was deprived of a protected property or liberty interest. See Kapsales v. United States Department of Energy, 2000 U.S. Dist. LEXIS 2602, at *4 (D.D.C. March 2, 2000); Drake v. Laboratory Corp. of America, 290 F. Supp. 2d at 361. The FAA regulations do not confer a cognizable property or liberty interest. Id. A person's right to follow a chosen profession free from unreasonable governmental interference comes within the liberty concept of the Fifth Amendment. Trifax Corp. v. District of Columbia, 314 F.3d 641, 643 (D.C. Cir. 2003). However, the loss of private employment coupled with a foreclosure of other employment opportunities do not create a cognizable property or liberty interest. Drake v. Laboratory Corp., 290 F.Supp. 2d at 361.
Delta was not a government actor merely because it used the results of a federally-mandated drug test to terminate Drake's employment. See Drake v. Delta Airlines, 1997 U.S. Dist. LEXIS 22753, at *11; Drake v. FAA, 2000 U.S. Dist. LEXIS 22096, at *5-6; Smeltzer v. Slater, 93 F. Supp. 2d 1095, 1102 (C.D. Cal. 2000); Drake v. Laboratory Corp., 290 F. Supp. at 362. Drake's loss of employment is not a cognizable property or liberty interest, even coupled with allegations that he cannot find new employment.
Drake cites Haynesworth v. Miller, 820 F.2d 1245, 1259-60 (D.C. Cir. 1987), in support of his argument that defendants are liable for Delta's acts. In Haynesworth, the court reiterated the well established principle that a government officer may be liable for constitutional wrongs resulting from his failure to properly supervise or train his subordinates. Id. This principle does not apply to Drake's claims. The FAA and DOT employees are not responsible for training or supervising Delta's employees.
In sum, Drake has not alleged an actionable constitutional violation against the FAA and DOT employees. Even if his Bivens claims were not barred by res judicata or collateral estoppel, they must still be dismissed for failure to state a constitutional claim.
Drake alleges § 1983 claims against the DOT and FAA employees. Section 1983 claims cannot be maintained against the federal government or its officials. Elliott v. Federal Deposit Ins. Corp., 305 F. Supp. 2d 79, 84 (D.D.C. 2004); Rockefeller v. United States Court of Appeals for the Tenth Circuit, 248 F. Supp. 2d 17, 24 (D.D.C. 2003). Even if the § 1983 claims asserted in Count 1 of Drake I, and Counts III through V of Drake II, were not barred under res judicata or collateral estoppel principles, they must still be dismissed for failure to state a claim.
E. Statute of Limitations
Defendants argue Drake's claims must be dismissed as time-barred because the longest possible statute of limitations that could apply to each claim is the District of Columbia's residual three-year statute of limitations. See D.C. Code § 12-301(8). Drake seeks to invoke the discovery rule to toll the statute of limitations. See Goldman v. Bequai, 19 F.3d 666, 671 (D.C. Cir. 1994). Neither party adequately addresses the applicable statute of limitations as to each claim. Given the inadequate briefing of the issue, and the multitude of other reasons these cases must be dismissed, the court need not decide whether Drake's claims are time-barred.
CONCLUSION
Defendants' motion to dismiss is granted. Counts I, II, III and IV of the Drake I complaint, and Counts II and VI of the Drake II complaint are barred by res judicata. Counts I, III, IV and V of the Drake II complaint are barred by collateral estoppel. Accordingly, this case is dismissed with prejudice.