Seven railroad employees fn1 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 under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics. fn2 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.

In January 1990 the Federal Railroad Administration ("FRA") required all Class I fn3 railroads to begin random urinalysis testing of their employees subject to the Hours of Service Act. fn4 The regulations require that random drug testing be conducted under the procedures prescribed by the Department of Transportation. fn5 These procedures provide for observation of the urine collection process only when testing is conducted for cause. fn6

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 Southern 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 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. Bourg fn7 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. fn8 The district court then considered the parties' motions for summary judgment. fn9 Court granted summary judgment in favor of Southern Pacific and dismissed the plaintiffs' claims with prejudice. Court based its decision on its finding that the alleged misconduct did not rise to a constitutional level. Although 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. Court also noted that the plaintiffs' claims sounded in negligence and that negligent conduct did not give rise to a Bivens claim. Court also dismissed the plaintiffs' state law claims on the grounds that the Federal Employers' Liability Act ("FELA") preempted them. Finally Court denied the plaintiffs' request for leave to add FELA claims.

The plaintiffs appeal all parts of this decision except for Court's denial of their request to add FELA claims. Without reaching the portions of Court's decision regarding the constitutionality of the testing we affirm its grant of summary judgment in favor of Southern Pacific. fn10

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. fn11 Further as the district court noted respondeat superior liability is not available in a Bivens action. In Dean v. Gladney fn12 the plaintiffs sued the city for the allegedly unconstitutional conduct of several of its police officers. Court held that it could not impose liability on a county or city based on a theory of respondeat superior under Bivens. fn13 In so holding Court affirmed the district court's dismissal of the plaintiffs' Bivens claims against the City. fn14 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 under the fourth amendment. Responde at 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 responde at 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 responde at 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." fn15

In addition to this reasoning Court also looked to the law relating to analogous 42 U.S.C. SEC 1983 claims. It is well settled that there can be no respondeat superior liability in a SEC. 1983 claim. fn16 In Monell the Supreme Court held that a municipality cannot be held liable solely because it employs a tortfeasor. fn17 To hold a city or state government liable for its employees' constitutionally tortious conduct under SEC 1983 the plaintiff must show that the conduct was the result of the city's policy or accepted custom. fn18

The Dean Court held that "it would be incongruous to hold that the doctrine of responde at 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. SEC 1983". fn19 Court reasoned that Bivens was "in essence" the federal counterpart to SEC 1983 which applies to state officials acting under color of state law. fn20

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 convince us to reject the Dean holding. Southern Pacific just like the federal government itself is not liable "solely because it employs a tortfeasor". fn21 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 fn22 the Supreme Court held that drug testing of railroad workers involved in accidents or suspected of drug use was a reasonable search under the fourth amendment. In so holding Court stated that the railroad "may not divest itself or otherwise compromise by contract the authority [so] conferred". fn23 The plaintiffs argue that this holding underscores the duty imposed on the railroad by federal regulation to properly implement and supervise the testing. fn24 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. Thus they maintain Southern Pacific is liable under City of Canton Ohio v. Harris. fn25

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 lengths to fulfill its "duty" to implement an acceptable 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. fn26 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. fn27

III.

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