United States Court of Appeals,

                                                 Fifth Circuit.

                                                 No. 91-9535.

                           Charles V. ABATE, Jr., et al., Plaintiffs-Appellants,

                                                       v.

       SOUTHERN PACIFIC TRANSPORTATION COMPANY, et al., Defendants-Appellees.

                                                 June 15, 1993.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, WISDOM, and WIENER, Circuit Judges.

          WISDOM, Circuit Judge:

          Seven railroad employees1 instituted this action alleging their employer violated their

constitutional rights guaranteed by the fourth amendment by the manner in which the employer

implemented its mandatory random drug testing program. Because the railroad was acting as an

agent for the federal government in testing them, the plaintiffs seek damages underBivens v. Six

Unknown Agents of the Federal Bureau of Narcotics.2 The district court found no constitutional

violation and granted summary judgment in favor of the railroad. We hold that the railroad is not

liable under Bivens for the alleged misconduct. Therefore, we affirm the district court's grant of

summary judgment without reaching the constitutionality of the testing procedure.

                                                       I.

          In January 1990, the Federal Railroad Administration ("FRA") required all Class I3 railroads

to begin random urinalysis testing of their employees subject to the Hours of Service Act.4 The

regulations require that random drug testing be conducted under the procedures prescribed by the


   1
   The railroad workers are joined by their unions, Brotherhood of Locomotive Engineers, Local
531 and United Transportation Union, Local 1836, in this action.
   2
       

, 

, 

(1971).
   3
       Southern Pacific is a Class I railroad.
   4
       45 U.S.C. § 61 et seq. See 49 C.F.R. § 219 et seq.
Department of Transportation.5 These procedures provide for observat ion of the urine collection

process only when testing is conducted for cause.6

          In preparation for and in response to the required testing, Southern Pacific began training its

supervisory personnel on the proper procedures for testing. Southern Pacific also proposed its own

plan for testing which was approved by the FRA in 1989. At all times, Southern Pacific maintained

a policy of no observation during urine collection. It went to great lengths to ensure that the testing

would be conducted in a reasonable and constitutionally acceptable manner. In conjunction with

several meetings with its supervisory personnel and the testing facilities' staff members, it formally

issued a protocol for testing to the clinics and hospitals that were selected to perform the tests. Both

its FRA approved plan as well as its collection procedures manual stated that the workers were not

to be observed while providing their urine samples.

          On March 3, 1990, So uthern Pacific conducted the first random test at an Avondale,

Louisiana based job assignment. The railroad's computers randomly selected plaintiffs Raymond G.

Lipps, Francis Castille, Jr., and James E. Glaviana to be tested. Southern Pacific instructed the

trainmaster on duty to escort the men to the Westbank Surgical Clinic for testing. On the way to the

clinic, the trainmaster told the men that they would be observed during the urine collection. The

nurse assigned to the testing confirmed this fact in front of the trainmaster. At this time, the doctor

on duty entered a room adjoining the collection room and observed, via hidden camera, Lipps and

Castille urinating. No one observed Glaviana giving his sample. When the trainmaster discovered

this fact, he declared a "no test" for Glaviana.

          The following week, the railroad selected a second crew for testing. A different trainmaster


   5
     49 C.F.R. § 40 et seq., 49 C.F.R. § 219.703(a). These procedures closely parallel the drug
testing procedures for government employees issued by the Department of Health and Human
Services, 53 Fed.Reg. 47002, which were described and approved by the Supreme Court in Nat'l
Treasury Employees Union v. Von Raab, 

, 

, 

(1989). In Von Raab, the Court relied, at least in part, on the presence of the regulations which
prohibited observation, in concluding the random testing constituted a reasonable search under
the fourth amendment. 

n. 

, n. 2. Thus, Von Raab does not
directly control the outcome in the instant case.
   6
       49 C.F.R. § 40.25.
escorted plaintiffs Michael L. Ledet and James H. Landry to the Westbank Surgical Clinic. Again,

the nurse told the men, in the presence of the trainmaster, that the doctor would observe them. Ledet

was unable to urinate, allegedly due to his knowledge that he was being observed. After returning

to the rail yard, Ledet requested a copy of the regulations. He then informed the trainmaster that

according to the regulations, he (Ledet) was not to be observed. The trainmaster retorted, warning

Ledet that he would be suspended for nine months if he refused to take the test. The following day,

Ledet was taken to the clinic where he eventually gave a urine sample while being observed.

          Finally, on April 24, Southern Pacific selected a third crew for testing. This time the men

were taken to the Ochsner Medical Center for testing. No one observed the men while they were

urinating. Rather, plaintiffs Charles V. Abate, Lipps, and Francis K. Bourg7 allege other mishandling.

The nurse took the men to a small room with a curtain serving as the fourth wall. The rooms were

not equipped with a toilet or sink. According to Lipps, when he entered the room he requested a

larger container in which to complete his void and the nurse refused. Lipps maintains that he soiled

himself as a result of being unable to stop urinating once the small collection vessel was filled. Abate

complains that the nurse stood within earshot of his stall while he was attempting to urinate.

          In response to this alleged mistreatment, the plaintiffs filed the instant suit. They requested

damages and a preliminary injunction prohibiting further testing. The district court denied the

injunction and this Court affirmed.8 The district court then considered the parties' motions for

summary judgment.9 The court granted summary judgment in favor of Southern Pacific and

dismissed the plaintiffs' claims with prejudice. The court based its decision on its finding that the

alleged misconduct did not rise to a constitutional level. Although the court based its holding on this

finding, it went on to state that under Bivens, the railroad could not be held liable under a respondeat

superior theory. The court also noted that the plaintiffs' claims sounded in negligence and that

   7
       Mr. Bourg voluntarily dismissed his claims.
   8
       Abate v. Southern Pacific Transportation Co. ("Abate I"), 

(5th Cir.1991).
   9
    These motions were filed before the Fifth Circuit's decision in Abate I, but were delayed while
that appeal was pending. When Abate I was decided, the district court took up the motions for
consideration.
negligent conduct did not give rise to a Bivens claim. The court also dismissed the plaintiffs' state

law claims on the grounds that the Federal Employers' Liability Act ("FELA") preempted them.

Finally, the court denied the plaintiffs' request for leave to add FELA claims.

          The plaintiffs appeal all parts of this decision except for the court's denial of their request to

add FELA claims.          Without reaching the portions of the court's decision regarding the

constitutionality of the testing, we affirm its grant of summary judgment in favor of Southern

Pacific.10

                                                     II.

           Bivens affords the victim of unconstitutional conduct by a federal actor or agent a direct

remedy under the Constitution. To recover damages under Bivens, the injured party must show the

existence of a valid constitutional violation.11 Further, as the district court noted, respondeat superior

liability is not available in a Bivens action. In Dean v. Gladney,12 the plaintiffs sued the city for the

allegedly unconstitutional conduct of several of its police officers. The Court held that it could not

impose liability on a county or city based on a theory of respondeat superior under Bivens.13 In so

holding, the Court affirmed the district court's dismissal of the plaintiffs' Bivens claims against the

City.14 The Court explained:

          In Bivens the Supreme Court permitted individuals whose fourth amendment rights had been
          violated by federal agents to bring a claim for monetary damages against those agents directly

   10
     Although the district court's grant of summary judgment was based on its finding that the
plaintiffs' had failed to establish a constitutional violation, we affirm on other grounds. See Degan
v. Ford Motor Co., 

, 892 (5th Cir.1989); Church of Scientology of California v.
Cazares, 

, 1281 (5th Cir.1981).
   11
     Garcia v. United States, 

, 966 (5th Cir.1982), cert. denied, 

, 

, 

(1982).
   12
    

(5th Cir.1980), cert. denied, 

, 

, 

(1981).
   13
        

(Citing decisions from six other circuits as support.)
   14
     Bivens is the federal counterpart of § 1983. In effect, it extends the protections afforded by
§ 1983 to parties injured by federal actors not liable under § 1983. The facts in Dean indicate,
somewhat ambiguously, that no federal actors were involved in the case. Therefore, the Dean
plaintiff may have been in error in seeking to advance a Bivens claim against non-federal entities
and individuals. In any event, the Dean Court's respondeat superior analysis is valid.
              under the fourth amendment. Respondeat superior liability was not at issue in Bivens;
              consequently, the majority opinion did not broach that subject. Nothing in Bivens, as we read
              it, supports the imposition of respondeat superior liability. In fact, as the district court below
              noted, both the concurring and dissenting opinions in Bivens clearly indicate that the doctrine
              of sovereign immunity precluded the plaintiffs in Bivens from recovering against the
              government for the tortious conduct of its agents.... Because Bivens imposed liability only
              on those actors who were culpable, "to impose liability on a municipality under the theory of
              respondeat superior would be "fundamentally inconsistent with the import of Bivens ' ".
              "Since the sine qua non of Bivens is the imposition of liability on those actors who can
              meaningfully be termed "culpable', it is inappropriate to permit a recovery of damages from
              those who, by any standard, are innocent of wrongdoing."15

              In addition to this reasoning, the Court also looked to the law relating to analogous 42 U.S.C.

§ 1983 claims. It is well settled that there can be no respondeat superior liability in a § 1983 claim.16

In Monell, the Supreme Court held that a municipality cannot be held liable solely because it employs

a tortfeasor.17 To hold a city or state government liable for its employees' constitutionally tortious

conduct under § 1983, the plaintiff must show that the conduct was the result of the city's policy or

accepted custom.18

              The Dean Court held that "it would be incongruous to hold that the doctrine of respondeat

superior can be invoked against a municipal corporation in [a] ... Bivens-type action when the

doctrine has no application in an action under 42 U.S.C. § 1983".19 The Court reasoned that Bivens

was "in essence" the federal counterpart to § 1983, which applies to state officials acting under color

of state law.20

              The facts in Dean are not identical with those in the instant case. However, its holding

survives these differences. In this case, Southern Pacific acted as an agent for the Federal

government, whereas in Dean the defendant was a municipal corporation. This difference does not

   15
        

(citations omitted).
   16
     Monell v. Department of Social Services of the City of New York, 

, 691, 

, 2036, 

(1978).
   17
        

436 U.S. at 

.
   19
     

(quoting Jones v. City of Memphis, 

, 625 (6th
Cir.1978), cert. denied, 

, 

, 

(1979)).
   20
        

to reject the Dean holding. Southern Pacific, just like the federal government itself, is

not liable "solely because it employs a tortfeasor".21 The plaintiff must show that Southern Pacific

caused the tortious conduct by its accepted custom or policy. The plaintiffs in the instant case do not

contest that Southern Pacific's official policy prohibited observation of urine collection. Further, they

offer no evidence linking the trainmasters' digression from this policy to their employer in any way.

Thus, the plaintiffs have not carried their burden.

           The plaintiffs dispute the application of the Dean holding to this case but they offer no

authority for this position. The crux of their argument is their contention that Southern Pacific was

directly responsible for the allegedly unconstitutional conduct. In Skinner v. Railway Labor

Executives' Ass'n,22 the Supreme Court held that drug t esting of railroad workers involved in

accidents or suspected of drug use was a reasonable search under the fourth amendment. In so

holding, the Court stated that the railroad "may not divest itself or otherwise compromise by contract

the authority [so] conferred".23 The plaintiffs argue that this holding underscores the duty imposed

on the railroad by federal regulation to properly implement and supervise the testing.24 Consequently,

they argue that Southern Pacific is directly responsible for their alleged injuries. They contend that

Southern Pacific acted with deliberate indifference in training its employees. Consequently, they

argue, Southern Pacific is liable under City of Canton, Ohio v. Harris.25

          This argument fails. Even were we to find an affirmative duty beyond that imposed by the

fourth amendment, the railroad is not culpable. This was Southern Pacific's first attempt at

implementing its testing plan in the Avondale area. As already noted, Southern Pacific went to great


   21
        

, 98 S.Ct. at 2036.
   22
        

, 

, 

(1989).
   23
        

109 S.Ct. at 1411-12.
   24
    49 C.F.R. § 219.601 (1989). Under the regulations, the railroad is responsible for
developing and implementing the drug testing program.
   25
    

, 

, 

(1989). In Canton, the Court held that a
municipality may be held liable under 42 U.S.C. § 1983 for its failure to train its employees when
such failure is the result of the municipality's deliberate indifference to constitutional rights.
lengths to fulfill its "duty" to implement an accept able plan. The Plaintiffs do not dispute that

Southern Pacific supplied extensive training to both the medical facilities' and their own supervisory

personnel. Further, Southern Pacific rectified the trainmasters' misunderstanding immediately upon

discovering what had occurred.26 Overall, Southern Pacific acted diligently and in good faith in

implementing the federally required drug testing plan. The trainmasters' unfortunate digression from

their employer's policy was not the result of any action or even inaction on Southern Pacific's part.

        The plaintiffs' claims under Bivens consequently must fail. Bivens entitles the plaintiffs to a

direct action against culpable parties. Because we find the railroad free from any culpability for the

actions of its employees in this case, we need not reach the issue of whether the trainmasters' alleged

misconduct constitutes an unreasonable search under the fourth amendment. We decline to grant the

plaintiffs' implied request for strict liability for carrying out the federally required drug testing

program.

        As a final matter, we affirm the district court's ruling that the Federal Employers' Liability Act

("FELA") preempts the plaintiffs' state law claims.27

                                                  III.

        The district court's grant of summary judgment is AFFIRMED.




   26
     Southern Pacific first learned of the complained of incidents when the plaintiffs filed this
action. Southern Pacific immediately rectified the problem.
   27
      The plaintiffs did not specify their Louisiana law claims in their complaint. However in their
brief supporting their Motion for Summary Judgment they discuss the claims in detail. These
claims include: (1) alleged violations of the Louisiana Constitution for breach of their right to
privacy; (2) tortious invasion of privacy; (3) alleged negligence violations under La.Civ.Code
arts. 2315 and 2316; and (4) alleged infliction of emotional distress by outrageous conduct. See
Janelle v. Seaboard Coastline R.R. Co., 

, 1261 (5th Cir.1975).