Plaintiff pro se Richard W. Drake ("Drake") commenced this action against defendant Delta Airlines Inc. ("Delta") claiming that Delta violated his rights under the Federal Aviation Administration ("FAA") and Department of Transportation ("DOT") drug testing regulations and under the Fourth Amendment. Delta has moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Delta's motion is granted and the complaint is dismissed without prejudice.

BACKGROUND

Drake's complaint alleges few facts and is unintelligible in many respects. On the basis of the complaint alone Court would have no choice but to dismiss the action. However since a pro se plaintiff is held to less stringent pleading standards Haines v. Kerner 404 U.S. 519 520 30 L. Ed. 2d 652 92 S. Ct.594 (1972) Court deems the complaint to include the facts contained in Drake's memorandum of law. See Le Grand v. Evan 702 F.2d 415 416 n.3 (2d Cir.1983) ("The complaint . . . contains few factual details of [plaintiff's] claims. However details were provided in a 'memorandum of law' submitted with the complaint. In view of the cannon that a pro se litigant's papers should be liberally construed . . . we read the complaint to adopt the factual allegations in the memorandum."); Alexander v. Coughlin 1991 U.S. Dist.10661 No. 90 Civ.3231 1991 WL 150674 at *1 (E.D.N.Y. July 26 1991) (Raggi J.) (deeming complaint amended to include factual allegations asserted in plaintiff's memorandum of law); Langert v. Festa 563 F. Supp.692 696 (E.D.N.Y. 1983) (McLaughlin J.) (same).

Drake was a Delta flight attendant who was required to undergo random testing for illegal drugs pursuant to regulations issued by the FAA and DOT ("FAA drug testing regulations"). On October 28 1993 he submitted a urine sample to be tested by a laboratory but the laboratory found the sample "unsuitable for testing." *fn1 Drake's sample was then sent to a second laboratory to determine if it had been adulterated. According to Delta this additional test established adulteration and Drake was subsequently called into Delta's New York office and asked to resign. Upon his refusal to resign he was fired and informed that he had a right to a hearing.

The hearing apparently consisted of two steps. First Drake was provided with the opportunity to explain to a Delta employee the facts he thought were relevant to prove his innocence. Second the Delta employee then presented the information the employee deemed relevant at a hearing Drake was not permitted to attend. Drake alleges that he was not provided with any information regarding the charges which resulted in his termination prior to his meeting with the Delta representative. In mid-February 1994 Drake was informed that this hearing had affirmed his termination.

Thereafter Drake filed for unemployment benefits. He was initially denied benefits and requested a hearing before the New York State Unemployment Insurance Appeal Board. At this hearing two Delta witnesses and a Delta Counsel appeared but "no proof [was] submitted by [Delta] that [Drake's] sample contained an adulterant." (Pl. Mem. of Law at 2.) According to Drake the ALJ determined that his discharge was not due to misconduct in his employment that he did not alter his urine sample and that he should be awarded the maximum unemployment compensation.

Drake complains of violations of the FAA drug testing regulations. *fn2 He also alleges that Delta's testing of his urine sample for adulterants violated his rights under the Fourth Amendment. In his request for relief he makes a number of demands including reinstatement to his position as a Delta flight attendant recovery of all lost back pay and benefits and compensatory and punitive damages.*fn3

In support of its motion to dismiss the complaint Delta contends that it cannot be the subject of a private cause of action for allegedly violating the FAA drug testing regulations and that the Fourth Amendment does not apply to its actions in testing Drake's sample for adulterants because it is a private employer and was not acting as an agent of the government. Court agrees with Delta's first contention but disagrees with Delta's second contention. Court however deems the search for adulterants to be reasonable under the Fourth Amendment.

DISCUSSION

I. Is There a Private Right of Action for Violations of the FAA's Drug Testing Regulations?

The FAA drug testing regulations were promulgated under the authority of the Omnibus Transportation Employee Testing Act of 1991 ("Testing Act") which inter alia amended the Federal Aviation Act the Federal Railroad Safety Act and the Commercial Motor Vehicle Safety Act to require drug testing for transportation workers in safety-sensitive positions. See Omnibus Transportation Employee Testing Act of 1991 Pub. L. No. 102-143 105 Stat.952 (1992). The Testing Act also placed Congress' imprimatur on drug testing regulations that had been promulgated in the 1980's by the administrative agencies governing the transportation industry including regulations authorizing mandatory random testing issued by the FAA. *fn4 In this latter regard the Testing Act required the mandatory testing of transportation workers in safety-sensitive positions throughout the transportation industry. Section 3 of the Testing Act the portion which governs testing in the aviation industry specifically directs the FAA to establish a program requiring air carriers to conduct drug testing of employees prior to their employment upon reasonable suspicion at random and after accidents. *fn5

The procedures currently used for the selection of employees to be tested the collection of urine samples and the testing of those samples are detailed in the FAA drug testing regulations which were issued pursuant to the directives of the Testing Act. 14 C.F.R. pt. 121 app. I (1995). *fn6 Employees who perform flight attendant duties are expressly included in the group subject to testing. 14 C.F.R. pt. 121 app. I(III)(B) (listing safety-sensitive positions subject to mandatory drug testing). The regulations which apply to flight attendants provide for mandatory random drug testing. 14 C.F.R. pt. 121 app. I(V)(C) (describing the percentages of employees who must be tested pursuant to the random testing provisions).

In Salomon v. Roche Compuchem Lab. Inc. 909 F. Supp.126 (E.D.N.Y. 1995) the only reported case addressing the issue Court Johnson held that no private right of action exists to remedy violations of the FAA's drug testing regulations. See 24 Hour Fuel Oil Corp. v. Long Island R.R. Co. 903 F. Supp.393 397 (E.D.N.Y. 1995) (Trager J.) ("Private causes of action are either explicit -- a statute or regulation specifically states that individuals have a right to sue under them -- or implicit -- the apparent intent of Congress or administrative agencies is to have individuals use them to litigate."). In applying the appropriate analysis under Cort v. Ash 422 U.S. 66 45 L. Ed. 2d 26 95 S. Ct.2080 (1975) and its progeny *fn7 Court Johnson correctly noted that: 1) the enabling statute was silent with respect to the existence of a private right of action to enforce the regulations; 2) there was an administrative enforcement mechanism in place to address alleged violations of the regulations; and 3) no rights were created in the statute for a specific class of persons.

Indeed under Part A Subtitle VII of Title 49 Congress provided comprehensive administrative mechanisms for the enforcement of the FAA drug testing regulations and other aviation safety measures. See 49 U.S.C. Sec. 46101 et seq. Amongst them is one that enables an individual to initiate an investigation by the Secretary of Transportation. Section 46101(a)(1) provides:

A person may file a complaint in writing with the Secretary of Transportation . . . about a person violating this pan or a requirement prescribed under this part . . . The Secretary . . . shall investigate the complaint if a reasonable ground appears to the Secretary . . . for the investigation.

(emphasis added). In conducting such an investigation the Secretary may subpoena witnesses and records related to a matter involved in an investigation administer oaths examine witnesses and receive evidence. 49 U.S.C. SEC. 46104. If the Secretary finds after investigation that a person is violating "this part " then the Secretary "shall issue an order to compel compliance." 49 U.S.C. SEC. 46101(a)(4). Other administrative mechanisms include provisions authorizing the Secretary of Transportation to bring a civil action in federal court "to enforce this part or a requirement or regulation prescribed . . .under this part " 49 U.S.C. SEC. 46106 or request that the Counsel General bring a civil action to enforce a regulation prescribed under "this part." 49 U.S.C. SEC.46107.

These enforcement mechanisms are strong indicia that Congress did not envision a private right of action under the FAA's drug testing regulations and reinforce Court Johnson's decision in Salomon. See Chan v. City of New York 1 F.3d 96 102 (2d.Cir.) cert. denied 126 L. Ed. 2d 423 114 S. Ct.472 (1993) (citing Karahalios v. National Fed'n of Fed. Employees Local 1263 489 U.S. 527 533 103 L. Ed. 2d 539 109 S. Ct.1282 (1989)) ("Where a statute expressly provides a remedy courts must be especially reluctant to provide additional remedies . . . . In such cases 'in the absence of strong indicia of contrary congressional intent we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.'"); Health Care Plan Inc. v. Aetna Life Ins. Co. 966 F.2d 738 741 (2d Cir.1992) (no private right of action under 42 U.S.C. SEC. 300e-9 where Congress envisioned an administrative rather than a judicial enforcement scheme); Davis v. United Air Lines Inc. 662 F.2d 120 126 (2d Cir.1981) cert. denied 456 U.S. 965 72 L. Ed. 2d 490 102 S. Ct.2045 (1982) (no private right of action where Congress provided a "rather complete" administrative scheme to remedy violations of the statute).

Furthermore Court Johnson's conclusion that no rights were created in the statute for a specific class of persons is amply supported by the legislative history. The congressional findings set forth in the Testing Act state that "millions of the Nation's citizens utilize transportation by aircraft railroads trucks and buses and depend on the operators of aircraft trains trucks and buses to perform in a safe and responsible manner[ ]" and that "the greatest efforts must be expended to eliminate the abuse of alcohol and use of illegal drugs whether on duty or off duty by those individuals who are involved in the operation of aircraft trains trucks and buses." Testing Act Pub. L. No. 102-143 SEC.(s) 2(2) (3) 105 Stat.952-53 (1992).*f *fn8

The floor debates on the Testing Act likewise reflect a broad-based focus on public safety. Cosponsor Senator Hollings remarked: "It is critical that we take every step possible to improve transportation safety. By requiring drug and alcohol testing of safety-sensitive transportation workers this legislation will significantly enhance the safety of the traveling public." 137.Cong. Rec. S6138 (daily ed. May 20 1991). Echoing this sentiment was Senator Danforth who set out the rationale for the Testing Act as follows:

Mr. President on January 4 1987 a Conrail engineer and brake man who were smoking marijuana ignored a series of stop signals near Chase MD and collided with an Amtrak train. Sixteen innocent people were killed -- many of them college students. One hundred and seventy people were injured. The National Transportation Safety Board (NTSB) concluded that the Conrail engineer's marijuana impairment resulted in the worst accident in Amtrak's history.

In response Senator HOLLINGS and I have introduced and fought for the enactment of legislation to require drug and alcohol testing of safety-sensitive transportation workers.

Id. See 137.Cong. Rec. E3077 (daily ed. Sept. 17 1991) (statement of Rep. Coughlin) ("The potential for disaster created by those who abuse alcohol and illegal drugs while employed in safety sensitive transportation positions mandates that we do everything we can to eliminate the cause of the threat --before more innocent lives are lost.").

There is support however for the notion that Congress was also sensitive to the concerns of employees. For example one of the findings in the Testing Act states:

Adequate safeguards can be implemented to ensure that testing for abuse of alcohol or use of illegal drugs is performed in a manner which protects an individual's right of privacy ensures that no individual is harassed by being treated differently from other individuals and ensures that no individual's reputation or career development is unduly threatened or harmed.

Testing Act Pub. L. No. 102-143 SEC. 2(6) 105 Stat.953 (1992). Furthermore in commenting on the legislation Senator Hollings noted that "it both mandates testing to protect the public and includes strong safeguards to ensure accurate testing and to protect innocent employees." 137.Cong. Rec. S6138 (daily ed. May 20 1991).

Nevertheless looking at the legislation as a whole it is clear that Congress in enacting the Testing Act intended to provide a general benefit to the public by increasing the level of passenger safety and did not intend to establish a private right of action for the transportation industry's employees. See Abate v. Southern Pac. Transp. Co. 928 F.2d 167 169 (5^th.Cir.1991) ("It is true that railroad employees are a class that stands to gain some benefit from the regulations and penalties promulgated under these provisions. This fact alone however cannot suffice to gain them a private right of action when the statute focuses on them only diffusely.").

Accordingly Drake has no legally cognizable claim against Delta for its alleged violations of the FAA's drug testing regulations. *fn9

II. Did Delta Violate the Fourth Amendment by Testing Drake's Sample for Adulterants?

There is no question however that a private right of action can be brought to remedy constitutional violations resulting from governmental action or private action that amounts to governmental action. Bivens v. Six Unknown Named Agents 403 U.S. 388 29 L. Ed. 2d 619 91 S. Ct.1999 (1971) (the seminal case on the subject implying a private cause of action for damages against federal law enforcement personnel who had violated plaintiff's Fourth Amendment rights); 1-95-CV-553-P1 v. 1-95-CV-553-D1 75 F.3d 135 137 (2d Cir.1996) ("Bivens recognized the availability of a damages remedy for violation of constitutional rights in some circumstances."); Robinson v. Overseas Military Sales Corp. 21 F.3d 502 510 (2d Cir.1994) ("In a Bivens action alleged victims of constitutional violations by federal officials may recover damages despite the absence of any statute specifically conferring such a cause of action."); Platsky v. Central Intelligence Agency 953 F.2d 26 28 (2d Cir.1991) (same). As the Supreme Court explained in Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602 103 L. Ed. 2d 639 109 S. Ct.1402 (1989) in assessing the application of the Fourth Amendment to private conduct:

Although the Fourth Amendment does not apply to a search or seizure even an arbitrary one effected by a private party on his own initiative the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government.

Id. at 614; see United States v. Jacobsen 466 U.S. 109 113-114 80 L. Ed. 2d 85 104 S. Ct.1652 (1984); Coolidge v. New Hampshire 403 U.S. 443 487 29 L. Ed. 2d 564 91 S. Ct.2022 (1971); United States v. Bennett 709 F.2d 803 805 (2d Cir.1983) cert. denied 469 U.S. 1075 83 L. Ed. 2d 512 105 S. Ct.572 (1984); United States v. Myerson 689 F. Supp.312 315 (S.D.N.Y. 1988).

When a private party acts pursuant to drug testing statutes or regulations that mandate its action it is clear that the Fourth Amendment applies to its conduct because it is acting "by compulsion of sovereign authority." Skinner 489 U.S. at 614; see Bluestein v. Skinner 908 F.2d 451 455 (9th Cir.1990) cert. denied 498 U.S. 1083 112 L. Ed. 2d 1042 111 S. Ct.954 (1991) ("drug testing performed by private employers under compulsion of government regulations constitutes governmental action subject to constitutional restrictions."). In this case the initial random drug test was performed pursuant to such mandatory provisions:

V. Types of Drug Testing Required. Each employer shall conduct the following types of testing in accordance with the procedures set forth in this appendix and the DOT "procedures for Transportation Workplace Drug Testing Programs" (49 CFR part 40).

14 C.F.R. pt. 121 app. I (mandating seven types of testing for persons performing safety-sensitive functions including random testing). According to DOT procedures adopted by the FAA employers are required . . . [to] test for marijuana cocaine opiates amphetamines and phencyclidine.

(c) Urine specimens collected under DOT agency regulations requiring compliance with this pan may only be used to test for controlled substances designated or approved for testing as described in this section and shall not be used to conduct any other analysis or test unless otherwise specifically authorized by DOT agency regulations.

49 C.F.R. SEC.(s) 40.21(a) (c). Thus if Drake were challenging Delta's initial test the Fourth Amendment would be implicated because that test was mandated by the FAA's drug testing regulations. Drake however does not take issue with the initial test but rather challenges Delta's subsequent test for adulteration. This raises concerns regarding the applicability of the Fourth Amendment because adulterants are not one of the five substances for which drug testing is mandated and thus Delta was not required to conduct the subsequent test. Testing for adulterants however is recognized in the regulations:

This section does not prohibit procedures reasonably incident to analysis of the specimen for controlled substances (e.g. determination of pH or tests for specific gravity creatinine concentration or presence of adulterants).

49 C.F.R. SEC. 40.21(d) (emphasis added). Therefore the regulations permit but do not mandate such testing.

When a private party acts pursuant to a permissive rather than a mandatory regulation or statute a court must determine "in light of all the circumstances " whether the private party was acting as a government agent. Skinner 489 U.S. at 614 (citing Coolidge 403 U.S. at 487); see e.g. Lebron v. Amtrak 811 F. Supp.993 996 (S.D.N.Y.) (First Amendment claim) ("Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.") (quoting Burton v. Wilmington Parking Auth. 365 U.S. 715 722 6 L. Ed. 2d 45 81 S. Ct.856 (1961)) rev'd 12 F.3d 388 (2d Cir.1993) rev'd and remanded 130 L. Ed. 2d 902 115 S. Ct.961 974-75 (1995) (holding that Amtrak "is part of the Government for purposes of the First Amendment."); Mahoney v. National Org. for Women 681 F. Supp.129 132 (D. Conn. 1987) (First and Fourteenth Amendment claims) (action can be maintained against purely private parties where "the defendants' actions were commanded or encouraged by the federal government or . . . defendants were so intertwined with the government as to become painted with the color of state action."); Schowengerdt v. General Dynamics Corp. 823 F.2d 1328 1337 (9th Cir.1987) cert. denied 503 U.S. 951 117 L. Ed. 2d 650 112 S. Ct.1514 (1992) (First Fourth Fifth Sixth and Ninth Amendment claims) (the private status of a defendant will not serve to defeat constitutional claims provided that the defendant engaged in federal action).

In Skinner for example the challenged regulations contained both mandatory (Subpart C) and permissive provisions (Subpart D).*fn10 The Supreme Court held that the Fourth Amendment could be implicated by drug testing even if it was conducted by private parties pursuant to permissive regulations where "specific features of the regulations combine to convince [Court] that the Government did more than adopt a passive position toward the underlying private conduct." Skinner 489 U.S. at 614. The specific features in Skinner were that the Federal Railway Administration ("FRA") drug testing regulations pre-empted state laws rules or regulations covering the same subject matter; were intended to supersede any provision of a collective bargaining agreement; conferred upon the FRA the right to receive certain biological samples and test results procured by railroads pursuant to the regulations; and forbade a railroad to divest itself or otherwise compromise by contract the authority to perform drug testing pursuant to the regulations. Id. at 615. Court further noted that a covered employee could not decline his employer's request to submit to breath or urine tests under the conditions set forth in Subpart D and that an employee who refused to submit to the tests must be withdrawn from "covered service." Id.

After considering these features of the FRA's drug testing regulations Court concluded that the Fourth Amendment was implicated by the searches conducted pursuant to the permissive regulations of Subpart D stating:

In light of these provisions we are unwilling to accept petitioners' submission that tests conducted by private railroads in reliance on Subpart D will be primarily the result of private initiative. The Government has removed all legal barriers to the testing authorized by Subpart D and indeed has made plain not only its strong preference for testing but also its desire to share the fruits of such intrusions. In addition it has mandated that the railroads not bargain away the authority to perform tests granted by Subpart D. These are clear indices of the Government's encouragement endorsement and participation and suffice to implicate the Fourth Amendment.

Id. Although Court detailed a number of specific features in reaching its conclusion the Court did not suggest that its list was exhaustive or that any single feature was determinative. Rather in making its evaluation under the totality of the circumstances and in highlighting the government's encouragement endorsement and participation in the permissive testing Court engaged in the typical "state action" inquiry traditionally employed to determine whether a private party's conduct is attributable to the government for the purpose of applying constitutional limitations. See e.g. Logan v. Bennington College Corp. 72 F.3d 1017 1027-28 (2d Cir.1996) (federal and state due process claims) ("Characterizing a private party as a 'state actor' is a fact specific inquiry and courts considering the issue typically look to such factors as the public function of the party's conduct whether the private party acted under state compulsion the nexus between the party's conduct and the state and whether the party's conduct was jointly undertaken with the state."); Hadges v. Yonkers Racing Corp. 918 F.2d 1079 1081 (2d Cir.1990) cert. denied 499 U.S. 960 113 L. Ed. 2d 648 111 S. Ct.1583 (1991) (Fourteenth Amendment due process claim) ("Private conduct qualifies as state action when 'the State has so far insinuated itself into a position of interdependence with [the private party] that is must be recognized as a joint participant in the challenged activity ' or when 'there is sufficiently close nexus between the State and the challenged action' that the private party's action 'may be fairly treated as that of the State itself.'") (quoting Burton 365 U.S. at 725); Jackson v. Metropolitan Edison Co. 419 U.S. 345 351 42 L. Ed. 2d 477 95 S. Ct.449 (1974)); Albert v. Carovano 824 F.2d 1333 1340 (2d Cir.1987) (Fourteenth Amendment due process and equal protection claims) ("[A] private party becomes a state actor not only by state coercion but also when the State has provided 'significant encouragement either overt or covert ' for the actions of the parties.") (citing Blum v. Yaretsky 457 U.S. 991 1004 73 L. Ed. 2d 534 102 S. Ct.2777 (1982); Rendell-Baker v. Kohn 457 U.S. 830 840 73 L. Ed. 2d 418 102 S. Ct.2764 (1982)).

The cases in which courts have found no state action have invariably turned on minimal governmental involvement in the contested conduct. See United States v. Keuylian 602 F.2d 1033 1039-40 (2d Cir.1979) (Fourth Amendment not implicated in x-raying of checked luggage where FAA regulations did not require foreign air carrier to screen checked baggage); Atkinson v. B.C.C. Assocs. Inc. 829 F. Supp.637 643-49 (S.D.N.Y. 1993) (drug testing program of private company performing work for public agency not subject to Fourth Amendment where drug testing program was not required by public agency); see also Alliance for Community Media v. Federal Communications Comm'n 56 F.3d 105 113 (D.C. Cir.1994) (finding no state action and thus no First Amendment violation where statute and regulations allowed but did not compel the banning of indecent programs); United States v. Ross 32 F.3d 1411 1414 n.1 (9th Cir.1994) (collecting cases holding that searches exceeding the guidelines of government security screening procedures are private searches); Andrews v. Federal Home Loan Bank 998 F.2d 214 217 (4th Cir.1993) (constitutional provisions did not apply where defendant's action was its own decision and not the product of coercion); Parker v. Atlanta Gas Light Co. 818 F. Supp.345 347 (S.D. Ga. 1993) (finding Skinner in apposite and the Fourth Amendment not implicated where statute at best represented a "passive position toward the underlying private conduct.").

After evaluating the totality of the circumstances Court concludes that Delta's search for adulterants did indeed implicate the Fourth Amendment. As in Skinner the government has removed all legal barriers to the testing mandated or authorized by the FAA's drug testing regulations by pre-empting state or local laws on this subject. Section 45106(a) provides that "[a] State or local government may not prescribe issue or continue in effect a law regulation standard or order that is inconsistent with regulations prescribed under this chapter." 49 U.S.C. SEC. 45106. See 14 C.F.R. pt. 121 app. I(XI) ("The issuance of 14 CFR parts 65 121 and 135 by the FAA preempts any state or local law rule regulation order or standard covering the subject matter of 14 CFR parts 65 121 and 135 including but not limited to drug testing of aviation personnel performing safety-sensitive functions."). The FAA's drug testing regulations like the FRA regulations in Skinner also provide for the sharing of certain information with the administrative agency. For example 49 C.F.R. SEC. 40.33(i)(1) calls for the disclosure of certain medical information to the FAA acquired by the employer in the testing verification process. Furthermore an employee who refuses to submit to testing cannot be employed in a safety-sensitive position until the employee submits to a test which results in a verified negative result. 14 C.F.R. SEC. 121.455(c) (forbidding a certificate holder from employing a person who has refused to submit to a drug test to perform a safety-sensitive function); 14 C.F.R. pt. 121 app. I(V)(F) and (G) (outlining the steps an employer must take before returning an individual who has refused to submit to a drug test to duty in a safety-sensitive position); see 14 C.F.R. pt. 121 app. I(VI)(E) (directing employers to notify the FAA that employees holding certificates under parts 61 63 and 65 have refused to submit to a drug test required under the FAA's drug testing regulations).

The regulations in this case do not present all of the features Court found relevant in Skinner such as precluding private actors from contracting away the right to perform the permissive tests. Nevertheless since employers in the transportation industry have received the government's tacit approval to test for adulterants see supra discussion of 49 C.F.R. SEC. 40.21(d) Delta's search for adulterants here constituted a "sufficiently close nexus between the [act mandated by the] State[ random drug testing] and the challenged action[ testing for adulterants]" Hadges 918 F.2d at 1081 such that Delta must be deemed to have effectively acted "as an agent or instrument of the Government." Skinner 489 U.S. at 614.

Finding the Fourth Amendment implicated by Delta's search for adulterants however does not end the inquiry since the amendment prohibits only unreasonable searches. Skinner 489 U.S. at 619. "What is reasonable of course 'depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.' United States v. Montoya de Hernandez 473 U.S. 531 537 87 L. Ed. 2d 381 105 S. Ct.3304 . . . (1985). Thus the permissibility of a particular practice 'is Courtd by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'" Id. (quoting Delaware v. Prouse 440 U.S. at 654 (1979)).

To the extent that Drake retained any privacy interest in his urine sample after it had been tested the first time that interest was minimal. There was no further physical invasion necessitated by testing his urine for adulterants or any involvement of Drake at all. The government however has a pervasive interest in encouraging transportation industry employers to prevent drug use by persons holding safety-sensitive positions. See Skinner 489 U.S. at 634 (finding the drug tests mandated or authorized by the FRA were reasonable given the surpassing safety interests served by the tests); Bluestein 908 F.2d at 456 (finding mandatory drug testing pursuant to pre-Testing Act FAA drug testing regulations to be reasonable where the government interest in preventing drug use by persons holding safety-sensitive positions in the aviation industry was "compelling"). If the search for adulterants were here proscribed the FAA's drug testing mandate would be undermined and the purpose of the regulations -- to enhance the safety of the flying public -- would be compromised.

In testing for adulterants Delta was acting consistent with Congress' implicit intent that employers in the transportation industry are to act as guardians of the public in drug testing their employees. So long as the actions of these "deputized" protectors of the public's well-being are reasonable the protections afforded individuals under the Fourth Amendment will not be violated. Court concludes that Delta's permissive search for adulterants which plausibly and logically flowed from the mandatory drug test was reasonable as a matter of law.

Accordingly Drake has not pled a legally cognizable claim for violation of the Fourth Amendment.

III. Does Drake State Any Other Claims?

Although Drake explicitly bases his complaint on violations of the FAA drug testing regulations and the Fourth Amendment his complaint and memorandum seem to suggest other possible claims. For example his allegation that he was held not culpable for his termination at the unemployment hearing suggests that his urine sample may not have been adulterated and that he may have been fired without cause; he also appears to complain about the nature of the hearing afforded him by Delta. It is premature based on the limited allegations presently before Court to determine whether or not Drake can allege a claim for wrongful termination see e.g. Gargano v. Diocese of Rockville Centre 888 F. Supp.1274 1283-85 (E.D.N.Y. 1995) (Block J.) aff'd 80 F.3d 87 1996 WL 157540 (2d Cir.1996); Weiner v. McGraw-Hill Inc. 57 N.Y.2d 458 462 443 N.E.2d 441 443 457 N.Y.S.2d 193 195 (1982) but see Sabetay v. Sterling Drug Inc. 69 N.Y.2d 329 333 506 N.E.2d 919 920 514 N.Y.S.2d 209 211 (1987) ("It is still settled law in New York that absent an agreement establishing a fixed duration an employment relationship is presumed to be a hiring at will terminable at any time by either party."); Murphy v. American Home Products Corp. 58 N.Y.2d 293 300-302 448 N.E.2d 86 89-90 461 N.Y.S.2d 232 235-36 (1983) or for violation of his due process rights see e.g. Board of Regents v. Roth 408 U.S. 564 569-79 33 L. Ed. 2d 548 92 S. Ct.2701 (1972); Kaluczky v. City of White Plains 57 F.3d 202 211 (2d Cir.1995) and thus Court will give him an opportunity to do so. Accordingly the complaint will be dismissed with leave to amend. See e.g. Branham v. Meachum 77 F.3d 626 630 (2d Cir.1996) ("We previously have stated that sparse pleadings by a pro se litigant unfamiliar with the requirements of the legal system may be sufficient at least to permit the plaintiff to amend his complaint to state a cause of action.") (citing Davidson v. Flynn 32 F.3d 27 31 (2d Cir.1994)); Elliott v. Bronson 872 F.2d 20 22 (2d Cir.1989) ("district court abused its discretion in dismissing . . . pro se complaint without granting leave to file an amended pleading."); Salahuddin v. Cuomo 861 F.2d 40 43 (2d Cir.1988) (remanding case to district court for entry of an order allowing pro se plaintiff to file an amended complaint).

CONCLUSION

Having determined that Drake's complaint fails to state a claim upon which relief could be granted for Delta's alleged violations of the FAA drug testing regulations and the Fourth Amendment Court dismisses those portions of the complaint with prejudice since there is no set of facts Drake could prove in support of those claims which would entitle him to relief. Branham 77 F.3d at 628 (dismissal is appropriate where "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief.") (citation omitted). However Court grants Drake ninety (90) days in which to file an amended complaint setting out facts sufficient to state claims for wrongful termination and/or violation of due process.

SO ORDERED:

FREDERIC BLOCK

United States District Court