Swaters v. United States Department of Transportation ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 2016 Decided June 24, 2016
No. 14-1277
JEFFREY SWATERS,
PETITIONER
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION,
RESPONDENT
On Petition for Review of an Order of the
United States Department of Transportation
Tony B. Jobe argued the cause and filed the briefs for
petitioner.
Lowell V. Sturgill Jr., Attorney, U.S. Department of
Justice, argued the cause for respondent. With him on the
brief were Benjamin C. Mizer, Assistant Attorney General,
Vincent H. Cohen, Jr., Acting U.S. Attorney, Leonard
Schaitman, Attorney, Paul M. Geier, Assistant General
Counsel for Litigation, United States Department of
Transportation, and Paula Lee, Trial Attorney.
2
Before: GARLAND,* Chief Judge, ROGERS, Circuit Judge,
and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
GINSBURG, Senior Circuit Judge: Jeffrey Swaters, a
former pilot with Spirit Airlines, challenges the Department
of Transportation’s refusal to consent to the release of the
urine sample it says Swaters produced for a mandatory drug
test. The sample, which tested positive for controlled
substances, cost Swaters his job and his airman medical
certificate. See Swaters v. Osmus, 568 F.3d 1315 (11th Cir.
2009); Sturgell v. Swaters, NTSB Order No. EA-5400, 2008
WL 3272390 (2008). Swaters now wants the urine sample in
order to conduct a DNA test in the hope of proving, in a state
court negligence action, the urine is not his. We hold that
neither the DoT’s general rule against releasing urine samples
for DNA testing, nor its refusal to release the sample in this
case, is arbitrary, capricious, or contrary to the Omnibus
Transportation Employee Testing Act of 1991. We also hold
that Swaters’s constitutional challenges to the rule fail.1 We
therefore deny Swaters’s petition for review.
*
Chief Judge Garland was a member of the panel at the time the
case was argued but did not participate in this opinion.
1
Since the merits of this case are straightforward and preclusion “is
not a jurisdictional matter,” Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 293 (2005), we do not address the
DoT’s argument that Swaters’s suit is barred by res judicata or
collateral estoppel.
3
I. Background
After captaining a flight to Ft. Lauderdale one day in
2007, Swaters was informed he had been randomly selected
for a drug test. Swaters, 568 F.3d at 1316-17. Such tests are
required by law. The Omnibus Act, Pub. L. No. 102-132, 105
Stat. 952, requires the Federal Aviation Administration to
establish drug-testing programs for “employees responsible
for safety-sensitive functions,” including commercial pilots.
See 49 U.S.C. § 45102(a). The FAA’s testing regime is
governed by 49 C.F.R. Part 40. As required by the Omnibus
Act, the provisions of Part 40 for testing pilots accord with the
testing guidelines of the Department of Health and Human
Services. See 49 U.S.C. § 45104(2).
Part 40 contains detailed instructions for the collection
and handling of urine samples. See 49 C.F.R. §§ 40.41-73.
Among other things, collectors must maintain personal
control over a specimen throughout the collection process and
ensure that no one other than the employee being tested
touches the sample until it has been sealed. Id. § 40.43(d).
After the sample is divided in two and each moiety is bottled
and sealed (to allow for confirmatory testing), the collector
must write the date on tamper-evident bottle seals and the
employee must add his initials to certify that the bottles
contain the sample he provided. Id. § 40.71(b). Both the
employee and the collector must also sign a Federal Custody
and Control Form (CCF). Id. § 40.73(a). The collector then
places the specimen bottles and a copy of the CCF in a
secured plastic bag in the employee’s presence, puts the bag
in a shipping container, seals the container, and sends the
sample to a testing laboratory without delay. Id. § 40.73(a)-
(c).
4
There is every indication these procedures were followed
when Swaters gave his sample at the collection facility. See
Swaters, 568 F.3d at 1322-23. Swaters signed the CCF,
declaring:
I certify that I provided my urine specimen to
the collector; that I have not adulterated it in any
manner; each specimen bottle used was sealed
with a tamper-evident seal in my presence; and
that the information provided on this form and
on the label affixed to each specimen bottle is
correct.
Id. at 1317. He also initialed the sealed specimen bottles. Id.Swaters’s specimen was sent to Quest Diagnostics, Inc.,
an HHS-approved testing laboratory. Id. Two weeks later,
Quest reported to Spirit Airlines that Swaters’s sample
contained morphine at more than eight times the legal limit, a
metabolite of heroin at more than 49 times the legal limit, and
a metabolite of cocaine at more than 63 times the legal limit.
Id. at 1317 n.2.
Swaters denied using the drugs and requested that his
split sample be tested at a different lab. Id. at 1317. That was
done by Diagnostic Sciences, Inc., another HHS-approved
facility, which reported the same results as had Quest. Id. at
1317-18. On the basis of these positive tests, the FAA found
Swaters had violated 14 C.F.R. §§ 91.17(a)(3) & 121.455(b),
which prohibit intoxication by pilots, and issued an
emergency order revoking his Airline Transport Pilot and
First Class Airman Medical certifications. Id. at 1318.
Swaters appealed the revocation of his certificate to the
National Transportation Safety Board. An Administrative
5
Law Judge conducted a two-day evidentiary hearing at which
both Swaters and the FAA put on multiple witnesses. See
Swaters, 2008 WL 3272390 at *1. While Swaters offered
several affirmative defenses – notably that he did not use any
drugs and that his samples were mishandled – the ALJ found
his testimony not credible and concluded there was “no
reason to doubt” the validity of the positive tests. Id. at *7-8.
The full Board affirmed, holding the testimony of Swaters and
his witnesses was “insufficient to carry [Swaters’s] burden to
rebut the prima facie case” presented by the FAA. Id. at 5.
On further review, the Eleventh Circuit Court of Appeals
upheld the Board’s decision, holding “it was not arbitrary and
capricious for the Board to conclude that the FAA had made a
prima facie showing,” and “that Swaters failed to rebut the
FAA’s prima facie case.” Swaters, 568 F.3d at 1327.
Some months after the Eleventh Circuit upheld the
revocation of his license, Swaters filed a lawsuit for
negligence in Florida state court against Concentra, the
company that had collected his urine sample. In that action,
Swaters served subpoenas on Quest Diagnostics, Inc. and its
subsidiary, Quest Diagnostics Clinical Laboratories, Inc.
(collectively “Quest”), seeking to obtain his original urine
sample. See Quest Diagnostics, Inc. v. Swaters, 94 So. 3d
635, 636-37 (Fla. Dist. Ct. App. 2012). Quest objected to the
subpoena, arguing DoT regulations prohibited it from
releasing any samples without the Department’s consent,
which the DoT was not willing to give. Id. at 637. The trial
court granted Swaters’s motion to compel production, but the
court of appeals quashed the order, finding that federal law
prevented discovery without the DoT’s consent. Id. at 638.
The Florida Supreme Court declined to review the decision.
In 2014, Swaters’s attorney sent to Patrice Kelly, the
Acting Director of the Office of Drug & Alcohol Policy &
6
Compliance (ODAPC), a formal request that the DoT consent
to Quest releasing Swaters’s sample “pursuant to 49 C.F.R. §
40.331(f).” He sent a similar message to Anne Bechdolt, an
attorney in the DoT Office of the General Counsel. Because
the purpose of the request was to conduct DNA testing on the
sample, Bechdolt explained, there was little she could do in
light of the DoT’s “long-standing position,” codified in 49
C.F.R. § 40.13, against “allow[ing] DNA testing on DoT
specimens.” Citing the preamble to the Department’s testing
regulations, Procedures for Transportation Workplace Drug
and Alcohol Testing Programs, 65 Fed. Reg. 79,462, 79,484
(Dec. 19, 2000), she explained: (1) the DoT believed a
properly documented chain of custody was sufficient to
establish the identity of a specimen; and (2) the DoT was
concerned that a negative DNA match could not account for
the possibility that the subject attempted to defeat the test by
substituting either the original or control sample.
After several more exchanges with Bechdolt, Swaters’s
attorney wrote to the Acting Deputy Secretary of
Transportation, Victor Mendez, and to the DoT General
Counsel, Kathryn Thomson, about his request. Bechdolt and
Thomson then spoke with Swaters’s attorney by phone,
reiterating that § 40.13 prohibits releasing samples for DNA
testing and again explaining why. The attorney followed up
by mailing Bechdolt and Kelly a lengthy questionnaire, at
which point Thomson sent him a final decision stating “no
further explanation is warranted” because the “regulations set
forth in 49 CFR part 40 are clear.” Swaters then petitioned
this court for review.
II. Analysis
Swaters challenges the DoT’s decision on three grounds.
First, he argues the DoT’s refusal to release his sample was
7
arbitrary and capricious, both because the Department never
explained its reasoning, and because it improperly interpreted
its own regulations. Second, he argues that insofar as the
DoT’s regulations do prohibit the release of a sample for
DNA testing, they are themselves arbitrary and capricious,
and inconsistent with the Omnibus Act. Finally, he maintains
that his inability to obtain his sample violates his
constitutional rights. None of these arguments is persuasive.
A. The DoT Reasonably Refused to
Release Swaters’s Sample
Swaters argues the DoT’s refusal to release his sample
was arbitrary and capricious because the Department “failed
to provide any rationale for its decision.” He is, of course,
correct that an agency must offer “an explanation that will
enable the court to evaluate the agency’s rationale at the time
of decision,” CSI Aviation Servs., Inc. v. U.S. Dep’t of
Transp., 637 F.3d 408, 414 (D.C. Cir. 2011) (quoting Pension
Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 654 (1990));
he is incorrect, however, in claiming the DoT failed to
provide an adequate explanation for its decision in this case.
As the Department correctly points out, DoT officials
repeatedly explained the agency’s longstanding prohibition
against the release of samples for DNA testing, and cited and
extensively quoted the relevant regulations to document their
position. These numerous written communications – as well
as oral communications memorialized contemporaneously in
writing and included in the record – made plain the DoT’s
rationale for the decision. See Tourus Records, Inc. v. DEA,
259 F.3d 731, 738 (D.C. Cir. 2001).
Swaters also argues the Department incorrectly
interpreted § 40.13 to block the release of samples for DNA
testing. The Department, unsurprisingly, disagrees, as do we.
8
The meaning of § 40.13(c) is clear on its face: “a laboratory is
prohibited from making a DOT urine specimen available for a
DNA test or other types of specimen identity testing.” None
of the other Part 40 provisions cited by Swaters says anything
to contradict this unambiguous prohibition. Section
40.331(f), which states that a laboratory “must not release or
provide a specimen or a part of a specimen to a requesting
party, without first obtaining written consent from ODAPC,”
implies only that DoT might, under unspecified
circumstances, consent to a sample release. Id. § 40.331(f).
Section 40.99 requires laboratories to retain specimens upon
request and lists, as a possible purpose for such a request,
“preserving evidence for litigation,” but it, too, is silent about
the conditions for releasing a specimen. Id. § 40.99(c).
Finally, §§ 40.27 and 40.355 prohibit employers and testing
facilities from requiring an employee to sign a release of
liability for negligence in the drug testing process, but § 40.13
does not release testing facilities from liability; it merely
limits what type of evidence a plaintiff is able to use to prove
his case.
B. The Rule Does Not Violate the APA
Swaters next argues that if § 40.13 indeed bars the release
of his urine sample for DNA testing, then it is unlawful.
Since Swaters cannot show the regulation is irrational or
inconsistent with the Omnibus Act, however, this court will
not set it aside. See Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 464 U.S. 29, 42 (1983).
i. The Rule is Not Arbitrary or Capricious
To be “rational,” a regulation must be “the product of
reasoned decisionmaking.” Fox v. Clinton, 684 F.3d 67, 74-
75 (D.C. Cir. 2012). The DoT’s testing policy easily clears
9
this rather low bar. In the preamble to its testing regulations,
the Department explained that it opposes DNA testing for
“two main reasons.” 65 Fed. Reg. at 79,484. First, “a
properly completed chain of custody conclusively establishes
the identity of a specimen. No additional tests are required
for this purpose.” Id. Second, “the only thing a DNA test can
do is determine . . . whether a specimen and a reference
specimen were produced by the same individual.” Id. That
is, even if a DNA test were conclusively to prove the positive
sample does not belong to Swaters, the DoT could not
determine whether the mismatch was due to an error in
handling or to the tested employee’s substitution of someone
else’s urine in the original sample, the reference sample, or
both. Because a properly preserved chain of custody renders
the first possibility very unlikely, and the second possibility
would arise only if a guilty employee was trying to defeat the
test, the DoT quite reasonably – in view of the risk to airline
safety – wants to avoid reinstating a pilot’s license on the
basis of a DNA mismatch.
Swaters argues the Department’s reliance upon chain-of-
custody evidence “ignore[s] the fact that it is widely accepted
in the industry as well as within the agency itself that the
collection process is the ‘weak link’ in the testing program.”
Swaters’s source for this assertion is a report by the
Government Accountability Office stating that “DoT’s drug
testing program is vulnerable to manipulation by drug users,”
which can give rise to false negative results.
GAO-08-225T, Drug Testing: Undercover Tests Reveal
Significant Vulnerabilities in DOT’s Drug Testing Program
(2007). As the DoT points out, the report says nothing about
DoT testing producing false positive results.
Swaters also argues the agency’s concern about
substitution is illogical because no employee would
10
purposefully substitute a tainted sample for his own during a
drug test. As the Department notes, however, one might
substitute a tainted sample unwittingly, believing the source
was clean. Finally, Swaters contends that even if the DoT’s
rationale was reasonable when first offered in 2000, the
Department’s continued reliance upon it today is irrational in
light of the intervening advances in DNA testing. This
argument mistakes the reason for the DoT’s policy: The
preamble to the regulations does not express concern that
DNA testing is inaccurate; rather, the Department is
concerned that a mismatch could not rule out manipulation by
substitution.
All of this is not to say that a pilot in Swaters’s position
has no recourse if his urine sample tests positive for narcotics.
Pilots have ample procedural protections, including an
opportunity to challenge the test result in an administrative
hearing before an Administrative Law Judge with subpoena
power. 49 C.F.R. §§ 821.35, 821.37-40. At that hearing,
which follows the Federal Rules of Civil Procedure and
Evidence “to the extent practicable,” id. §§ 821.5, 821.38, the
pilot has the right to present evidence, to depose witnesses,
and to testify, among other procedural rights. See, e.g., id. §§
821.6, 821.19-20, 821.39. The pilot also has the right to an
administrative appeal, id. § 821.47(a), and the right to petition
for judicial review, id. § 821.64(a). The DoT’s rule in this
case does not abrogate those procedural protections; it simply
reflects the determination that a particular type of evidence is
more likely to undermine the test results of a guilty subject
than to vindicate an innocent one, and therefore should not be
used. Because the DoT’s concern about cheating on a drug
test is reasonable, the court will not set aside the agency’s rule
against releasing urine samples. See Cytori Therapeutics, Inc.
v. FDA, 715 F.3d 922, 927 (D.C. Cir. 2013).
11
ii. The Rule Does Not Violate the Omnibus Act
Contrary to Swaters’s contention, Part 40 is not
inconsistent with the Omnibus Act; indeed, it appears to be
required by it. The statute provides that “the Administrator of
the Federal Aviation Administration shall develop
requirements that . . . incorporate the Department of Health
and Human Services scientific and technical guidelines.” 49
U.S.C. § 45104. Those HHS Guidelines state that specimens
“must only be tested for drugs and to determine their
validity,” and that “[u]se of specimens by donors, their
designees, or any other entity, for other purposes (e.g.,
deoxyribonucleic acid, DNA, testing) is prohibited unless
authorized in accordance with applicable federal law.” 80
Fed. Reg. at 28,122. The DoT argues, and Swaters makes no
attempt to refute, that the Department could not have
implemented a different rule in light of 49 U.S.C. § 45104 and
the HHS Guidelines.
C. The Constitutional Challenges Fail
Swaters’s constitutional arguments also lack merit.2
Swaters contends the DoT’s refusal to consent to release of
his urine sample for DNA testing effectively blocks his access
to Florida state court. Citing Bounds v. Smith, 430 U.S. 817,
821 (1977), Swaters argues that access to the courts is a
fundamental due process right and any government regulation
that burdens that right must therefore stand up to strict
scrutiny.
2
Swaters’s argument that the DoT’s regulations violate the Tenth
Amendment by preempting state law is insufficiently developed to
warrant consideration. See Cement Kiln Recycling Coal. v. EPA,
255 F.3d 855, 869 (D.C. Cir. 2001).
12
Bounds has no bearing upon this case; it concerned
prisoners who lacked access to a library or any other
resources to conduct legal research or draft complaints. 430
U.S. at 817-818. Swaters is not a prisoner who has been
denied access to the courts; he is a civil litigant who has been
denied discovery of a piece of evidence he believes is
favorable to him. He offers no legal support for his position
that the Constitution entitles him to such discovery. Indeed,
in District Attorney’s Office for the Third Judicial District v.
Osborne, the Supreme Court denied a prisoner’s petition “to
obtain postconviction access to the State’s evidence for DNA
testing,” 557 U.S. 52, 52 (2009), explaining that there is no
“freestanding right to DNA evidence untethered from the
liberty interests [a litigant] hopes to vindicate with it,” id. at
72. If postconviction incarceration is an insufficient
deprivation of liberty to create a right to DNA testing, then a
fortiori Swaters’s liberty interest in being free of a
government-imposed “stigma on [his] professional
reputation,” Owen v. City of Independence, Mo., 445 U.S.
662, 662 (1980), is likewise insufficient.
Swaters also contends that § 40.13 is unconstitutionally
vague because it does not specify to whom a laboratory is
prohibited from furnishing a DoT urine sample for DNA
testing. But in the absence of any limiting terms, the plain –
and certainly not vague – meaning of the regulation prohibits
release of the urine sample to anybody. 49 C.F.R. § 40.13(c)
(“[A] laboratory is prohibited from making a DOT urine
specimen available for a DNA test or other types of specimen
identity testing”).
III. Conclusion
For the foregoing reasons, we conclude the DoT’s denial
of Swaters’s request for his urine sample was sufficiently
13
explained, reasonable, and consistent with the Omnibus Act.
We also reject Swaters’s constitutional challenges.
Accordingly, the petition for review is
Denied.