Drake, Richard v. FAA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 3, 2002 Decided May 31, 2002

No. 00-5329

Richard Drake,
Appellant

v.

Federal Aviation Administration,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 99cv02790)

Andrew Dunlap, Student Counsel, argued the cause as
amicus curiae in support of appellant. With him on the
briefs were Steven H. Goldblatt, Director of the Appellate
Litigation Program, Georgetown University Law Center, ap-
pointed by the court as amicus curiae, Wendy M. Marantz,
Supervising Attorney, and Kristina Marlow, Student Coun-
sel.

 Richard Drake appearing pro se, was on the briefs for
appellant.

Madelyn E. Johnson, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney. Christy A. Slamowitz, Assistant U.S.
Attorney, entered an appearance.

Before: Edwards, Henderson, and Garland, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Edwards.

Edwards, Circuit Judge: This appeal arises from the Dis-
trict Court's dismissal of appellant Richard Drake's action
against the Federal Aviation Agency ("FAA"). Drake be-
lieves that Delta Airlines infringed his legal rights when it
processed a random drug test that Drake was required to
take by virtue of his flight attendant position. Drake there-
fore contends that the FAA neglected its statutory responsi-
bilities in finding that Delta did not violate agency regulations
and breached a regulatory obligation in refusing to disclose
information bearing on that determination. The District
Court dismissed all of Drake's claims, concluding that they
were barred by res judicata. This was error. Nevertheless,
we affirm the dismissal on other grounds. The efforts of
amicus curiae to convince us otherwise were ultimately unper-
suasive.*

Drake's requests for information are moot, because he has
received all the documents to which he is entitled under the
Freedom of Information Act ("FOIA"). While Drake argues
that a since-amended FAA regulation, 49 C.F.R. s 40.37
(1993), guaranteed him more, we defer to the agency's rea-
sonable interpretation of that provision, under which it ap-

__________
* On August 15, 2001, the court appointed Georgetown University
Law Center's Appellate Litigation Program as amicus curiae on
Drake's behalf. A third-year law student, Andrew Dunlap, present-
ed argument in support of the appellant. The court commends Mr.
Dunlap on the excellence of his oral advocacy, which greatly assist-
ed our deliberations and judgment in this case.

plies neither to requests made upon the agency itself nor to
the broad class of information that Drake has sought here.

Next, we conclude that Drake cannot state a claim under
the Administrative Procedure Act ("APA") against the FAA
based on its failure to find that Delta had violated the
agency's drug testing rules. Under the FAA's organic stat-
ute, the agency "may dismiss a complaint without a hearing
when the Secretary [of Transportation] or Administrator is of
the opinion that the complaint does not state facts that
warrant an investigation or action." 49 U.S.C. s 46101(a)(3)
(1994) (emphasis added). The FAA's decision to do just that
here is "committed to agency discretion by law," and may not
be reviewed under the APA. 5 U.S.C. s 701(a)(2).

The last two suggested bases for Drake's action are plainly
meritless. First, Drake's complaint cannot be read to sup-
port an action under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971). A
Bivens action cannot be maintained against a federal agency
such as the FAA, and Drake has neither named nor served
any individual defendants. Finally, Drake has asserted no
basis for a claim under the Federal Tort Claims Act
("FTCA"). Just as the APA precludes review of the FAA's
discretionary decision not to hold a hearing on Drake's com-
plaint against Delta, that decision cannot give rise to FTCA
liability either.

I. Background

FAA regulations require that air carriers administer peri-
odic drug tests on employees who perform certain safety-
sensitive functions. See 49 C.F.R. pt. 40 (1993) ("Part 40").
In 1989, the Department of Transportation promulgated the
Part 40 rules that were in effect during the times relevant to
this case. See Procedures for Transportation Workplace
Drug Testing Programs, 54 Fed. Reg. 49,854 (Dec. 1, 1989).
These rules included a number of detailed requirements
relating to the scope of drug tests and the procedural protec-
tions afforded to employees subject to testing.

 Under the applicable version of Part 40, an employee's
positive test results had to be verified by the employer's
Medical Review Officer ("MRO"). Before doing so, however,
the MRO normally was required to give an employee a
chance to discuss his test result before reporting it to the
employer. See 49 C.F.R. s 40.33(c)(1), (5). Where there
were questions about the accuracy or validity of a positive
result, the MRO could order a retesting of the original
specimen. If this reanalysis was negative, the MRO was
required to cancel the test. 49 C.F.R. s 40.33(e). If the
result was "scientifically insufficient for further action," the
MRO could either declare the test negative or order a retest
under s 40.33(e). 49 C.F.R. s 40.33(g). Moreover, in a
provision entitled "Individual access to test and laboratory
certification results," the FAA regulations indicated that an
individual "shall, upon written request, have access to any
records relating to his drug test and any records relating to
the results of any relevant certification, review, or revocation-
of-certification proceedings." 49 C.F.R. s 40.37.

While Part 40 by its terms conferred no private right of
action against a carrier, employees may file a written com-
plaint with the FAA if they believe a carrier has violated the
agency's rules or regulations. See 49 U.S.C. s 46101(a). In
turn, the Administrator "shall investigate the complaint if
reasonable ground appears to the ... Administrator for the
investigation." Id. s 46101(a)(1). However, the Administra-
tor "may dismiss a complaint without a hearing when the ...
Administrator is of the opinion that the complaint does not
state facts that warrant an investigation or action." Id.
s 46101(a)(3). If there is a hearing, the Administrator "shall
issue an order to compel compliance" with the regulations "if
the Administrator finds in an investigation" that the regula-
tions have been violated. Id. s 46101(a)(4).

In accordance with Part 40, Delta Airlines required its
flight attendants to undergo random drug tests as a condition
of their employment. In 1993, Drake was selected for testing
four times, the last on October 28. His urine sample was sent
to Delta's designated laboratory, CompuChem Laboratories,
Inc., which pronounced it "unsuitable for testing," indicating

that it was somehow adulterated or abnormal. A subsequent
report suggested that this initial result was "indicative of
adulteration with glutaraldehyde," a substance often used to
mask the presence of drugs in the body. This finding was
transmitted to Dr. William Whaley, Delta's MRO, who decid-
ed to forward an aliquot of Drake's sample to another lab,
North West Toxicology Laboratory, for further testing. Dr.
Whaley allegedly did so without informing Drake or obtaining
his consent.

North West's test came back negative for glutaraldehyde,
although it revealed a pH of below 4, which the lab consid-
ered "inconsistent with human kidney function and highly
suggestive of adulteration." Dr. Whaley thus decided to send
the urine for yet another retest, this one to be conducted by
Dr. Malmoud ElSohly, who believed that he could adjust for
the abnormal pH and determine if the sample had been
tainted. However, Dr. ElSohly's test uncovered no positive
indication of either drugs or adulterants. Thus, while his
report did indicate that "the specimen might be adulterated,"
Dr. ElSohly recommended that Dr. Whaley take no action
against Drake "because of presumed adulteration." On No-
vember 24, 1993, Dr. Whaley contacted Delta directly, report-
ing the inconclusive results to the airline's drug program
managers. He recounted Drake's testing history, noting that
the Part 40 regulations forbade any additional testing on the
October 28 sample. Dr. Whaley therefore suggested that
Drake be contacted, at which point a new specimen could be
collected.

On November 29, North West performed a third retest on
Drake's original sample. This test came back positive for
glutaraldehyde. The next day, after Delta learned of this
result, Drake was removed from active flight status. One
month later, he was asked to resign, and was fired when he
refused.

On December 28, 1994, Drake filed a pro se complaint
against Delta in the United States District Court for the
Eastern District of New York, arguing that the airline's
testing procedures had violated both the Part 40 regulations

and the Fourth Amendment. The District Court in New
York dismissed the case on the ground that Part 40 provides
no private right of action against a carrier and that the
intrusion into Drake's privacy from the various retests of his
urine was minimal. See Drake v. Delta Airlines, Inc., 923
F. Supp. 387 (E.D.N.Y. 1996). On appeal, the Second Circuit
affirmed as to the regulations, but reversed on the constitu-
tional issue. See Drake v. Delta Airlines, Inc., 147 F.3d 169
(2d Cir. 1998). That aspect of the case is still pending. In
rejecting Drake's bid to sue under Part 40, the court of
appeals noted that Drake "could have sought redress of the
alleged regulatory violations through administrative avenues,
such as by filing a complaint with the Secretary of Transpor-
tation." Id. at 171 n.2.

In September 1998, Drake formally requested that the
FAA investigate Delta for its allegedly unlawful actions in
processing his urine sample. Drake met with several agency
employees, who purportedly told him that he would be given
access to copies of all evidence and material collected during
the FAA's investigation. Compl. in Civ. Act. No. 99-2790, at
p 11. The FAA conducted a week-long investigation of Delta
between November 2 and November 6, 1998.

This inquiry was not yet completed when, on November 12,
1998, Drake filed a second pro se lawsuit, this one against the
FAA itself in the United States District Court for the District
of Columbia. See Drake v. FAA, Civ. Act. No. 98-2758
(D.D.C.) ("FAA I"). In this action, Drake alleged that the
Part 40 regulations themselves violated the Fourth Amend-
ment as well as "procedural due process." He contended that
Part 40 failed to provide adequate hearing opportunities for
tested employees and should have included a private right to
sue carriers who run afoul of the rules' requirements.
Compl. in Civ. Act. No. 98-2758, at p p 6, 9-10. This case was
assigned to Judge Lamberth.

On March 25, 1999, while this matter was proceeding, the
FAA informed Drake of the results of the agency's investiga-
tion. The FAA reported that it had found no evidence to
support Drake's allegations against Delta. The agency also

informed Drake that any documents uncovered by the agency
during the course of its investigation could be released to him
only through FOIA. Thus, "as a courtesy," the FAA inter-
preted Drake's previous request for documents as a FOIA
request, and submitted it to the appropriate office on his
behalf.

Invoking s 40.37, Drake wrote to the FAA to argue that he
had a right to information gathered during the agency's
investigation. The FAA, however, continued to demur, insist-
ing that only FOIA, and not the regulation, applied to Drake's
request. In April 1999, Drake was informed that although
the FAA had at least one responsive document, that docu-
ment was exempt from disclosure under FOIA Exemption
7(a). This exemption applies to records complied for law
enforcement to the extent that production "could reasonably
be expected to interfere with enforcement proceedings." 5
U.S.C. s 52(b)(7)(A). The agency noted, however, that the
protection of Exemption 7 would terminate when its investi-
gation of Delta was complete.

The instant case commenced on October 20, 1999, when
Drake filed a second pro se action against the FAA in the
United States District Court for the District of Columbia.
See Drake v. FAA, Civ. Act. No. 99-2790 (D.D.C.) ("FAA II").
In this complaint, Drake alleged that the FAA's determina-
tion that Delta had not violated Part 40 was unreasonable,
and the product of a conspiracy between the agency and the
airline. Compl. in Civ. Act. No. 99-2790, at p p 20-31. He
asked that the court compel the FAA to complete a proper,
fair investigation of Delta and also to "release all information
of that investigation to date and in the future." Id. at p 44.
This case was originally assigned to Judge Kessler, who
transferred it to Judge Lamberth on February 2, 2000 as a
related case to FAA I. Judge Lamberth had previously
dismissed FAA I for lack of jurisdiction; he reopened the
case following the transfer of FAA II in response to Drake's
motion to reconsider. On July 31, 2000, however, Judge
Lamberth granted the FAA's motion to dismiss both cases.

 As to FAA I, the District Court found that the Part 40
regulations attacked by Drake did not violate procedural due
process. Moreover, noting that those regulations had been
superseded by new ones, the court declined to pass judgment
on the constitutionality of the replacement regulations, which
Drake had not challenged. See FAA I, Civ. Act. No. 98-2758,
at 5-9 (D.D.C. July 31, 2000). Finally, the District Court
concluded that no private right of action existed under Part
40. Id. at 9.

The District Court then dismissed Drake's action in FAA
II, holding that the action was barred by res judicata,
because it grew out of the same factual nucleus as did FAA I.
See FAA II, No. 99-2790, at 3-5 (D.D.C. July 21, 2000).
However, the District Court elected to "comment" on the
merits, finding that Drake had failed to state a valid legal
claim. Id. at 5.

The District Court suggested that the federal government's
sovereign immunity precluded Drake from obtaining the re-
lief that he sought from the FAA. As to Drake's information
request, the court agreed with the FAA that FOIA governed,
and that Drake was not entitled to judicial review of the
FAA's decision to invoke Exemption 7(a), because he had
failed to exhaust his administrative remedies. In support of
this conclusion, the District Court read s 40.37 to apply only
to the material referenced in its title: "test and laboratory
certification results." The regulation did not, in the court's
view, apply to the "body of information produced during the
agency investigation." Id. at 8-9.

Drake appealed both decisions. On March 16, 2001, this
court summarily affirmed the dismissal of FAA I. See Drake
v. FAA, No. 00-5328 (D.C. Cir. Mar. 16, 2001). However, we
denied the FAA's motion for summary affirmance of FAA II,
suggesting that it was not clear that the District Court's
judgment on res judicata was a proper application of that
doctrine. Moreover, we directed the parties to address two
merits issues in their briefs: (1) whether appellant's request
for information pursuant to s 40.37 is governed by FOIA;
and (2) what is the proper disposition of appellant's claims for

all other relief (aside from the release of information). We
now turn to these questions.

II. Discussion

A. Res Judicata

The first issue presented in this appeal is whether the
District Court correctly dismissed FAA II on res judicata
grounds. Also known as "claim preclusion," this doctrine
holds that "a judgment on the merits in a prior suit bars a
second suit involving the same parties or their privies based
on the same cause of action." Parklane Hosiery Co. v. Shore,
439 U.S. 322, 326 n.5 (1979). Whether two cases implicate the
same cause of action turns on whether they share the same
"nucleus of facts." Page v. United States, 729 F.2d 818, 820
(D.C. Cir. 1984). Thus, under res judicata, "a final judgment
on the merits of an action precludes the parties or their
privies from relitigating issues that were or could have been
raised in that action." Allen v. McCurry, 449 U.S. 90, 94
(1980) (emphasis added).

In this case, the District Court misapplied the claim preclu-
sion doctrine. It is clear that, for the most part, the causes of
action asserted in FAA II are different from those asserted in
FAA I. The first case was concerned with the Part 40
regulations as a whole, and the related allegation that the
laxity of these regulations may have allowed Delta to violate
Drake's rights when it processed his urine sample. In
marked contrast, the bulk of FAA II attacks the agency's
subsequent determination that Delta did not violate those
regulations and the FAA's refusal to disclose information
bearing on that determination. Compl. in Civ. Act. No.
99-2790, at p p 23-31. Plainly, then, the claims underlying
FAA II are based on a different nucleus of facts than were
those advanced in FAA I.

What is particularly noteworthy here is that many of the
central events underlying FAA II had not even taken place at
the time when Drake instigated FAA I. While it is not clear
from the record when exactly the FAA prepared the investi-
gation report attacked in FAA II, it is undisputed that the

agency did not tell Drake about its contents until March 25,
1999. FAA I, of course, had been filed months before, on
November 12, 1998. Moreover, Drake's claim in FAA II that
the agency improperly disregarded the terms of 49 C.F.R.
s 40.37 plainly arose after his first action began. It was not
until April 12, 1999 that the FAA informed Drake that it was
treating his request for information as one made under FOIA,
thus rejecting his assertion that he was entitled to the
information under s 40.37.

Accordingly, the District Court's conclusion that Drake
should, or could, have raised these claims in FAA I was
misguided. Res judicata does not preclude claims based on
facts not yet in existence at the time of the original action.
Page, 729 F.2d at 820 & n.12; see also Stanton v. District of
Columbia Court of Appeals, 127 F.3d 72, 78-79 (D.C. Cir.
1997). So it is here. The doctrine does not bar a litigant
from doing in the present what he had no opportunity to do in
the past. Therefore, insofar as FAA II challenges the nature
of the agency's investigation and its refusal to disclose the
fruits of that investigation, those claims were improperly
dismissed on res judicata grounds.

B. Drake's Request for the Release of Information

Drake contends that the FAA has provided no reasoned
basis for its refusal to apply 49 C.F.R. s 40.37 to his requests
for documents gathered or generated during the agency's
investigation of Delta. If this regulation does not apply, then
the issue is now moot. On May 9, 2000, the FAA informed
Drake that because its investigation of Delta was over, FOIA
no longer barred the release of the information gathered
during that inquiry. Thus, the bulk of what Drake had
requested, including the FAA's Enforcement Investigation
Report and documentation relating to his 1993 drug test, was
released to him.

In light of this disclosure, Drake's claim is moot, unless he
can show that s 40.37 entitles him to certain documents that
he has requested but not yet received. This he is unable to
do, because the FAA reasonably interpreted that regulation
as not applying to Drake's requests. The FAA asserts that

Drake's demands for documents based on s 40.37 must fail,
because the regulation is addressed to laboratories, not the
agency, and, in any event, the regulation is limited to test and
laboratory certification results, not agency investigatory ma-
terials. Therefore, according to the FAA, Drake was obliged
to rely on FOIA, not s 40.37, in his quest for documents from
the FAA. We agree.

In the Notice of Proposed Rulemaking ("NPRM") issued to
amend Part 40, the FAA indicated that the existing regula-
tions "require[ ] laboratories to provide certain information
about, among other things, their HHS certifications." Proce-
dures for Transportation Workplace Drug and Alcohol Test-
ing Programs, 64 Fed. Reg. 69,076, 69,085 (Dec. 9, 1999)
(emphasis added). This suggested that any disclosure obli-
gation imposed by s 40.37 was on the laboratories that con-
ducted the actual drug testing, or on the employers for whom
the tests were conducted, not the FAA. Neither the NPRM
nor the rule itself states that an employee may rely on
s 40.37 to obtain information amassed by the FAA in the
course of its investigation of a carrier or laboratory. More-
over, since the NPRM was aimed at "laboratories," this
suggested that the regulation applied only to laboratory
results and not to documents relating to FAA investigations
of carriers.

This interpretation of the regulation was never expressly
advanced by the FAA when it rejected Drake's request for
documents. Agency officials merely advised Drake that he
was bound to use FOIA, not s 40.37, in his quest for docu-
ments. Drake also points out that s 40.37 does not expressly
foreclose his claim and, further, that the regulation can be
plausibly read to support his position. We agree with Drake
that the regulation, on its face, is ambiguous. However, this
is not fatal to FAA's position. Recent decisions of this court
make it clear that we owe deference to an agency's interpre-
tation advanced during litigation regarding the meaning of an
ambiguous regulation, if the position is not inconsistent with
the agency's prior statements and actions regarding the
disputed regulation. See Bigelow v. Dep't of Defense, 217
F.3d 875, 878 (D.C. Cir. 2000); Akzo Nobel Salt, Inc. v. Fed.

Mine Safety and Health Review Comm'n, 212 F.3d 1301,
1304-05 (D.C. Cir. 2000). The FAA's interpretation here is
consistent with the position the agency took in its NPRM and
offers a perfectly reasonable interpretation of s 40.37, one to
which we defer.

In support of its interpretation, the FAA first points to
s 40.1. This provision provides that Part 40 "applies to
transportation employers (including self-employed individu-
als) conducting drug urine testing programs pursuant to
regulations issued by agencies of the Department of Trans-
portation and to such transportation employers' officers, em-
ployees, agents and contractors." Thus, according to the
FAA, the mandate of s 40.37 - like the rest of Part 40 - was
directed to regulated carriers, such as Delta, and not to the
FAA itself. See Br. of Appellee 19. The agency finds further
support for this view in s 40.37's title, which refers only to
"test and laboratory certification results." The FAA claims
that information generated during an agency investigation of
the kind mounted by the FAA here does not fit within the
confines of this title. See id. at 18.

We accede to this interpretation of s 40.37. The Supreme
Court's seminal decision in Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410 (1945), established the basic principle that
an agency's interpretation of one of its own regulations
commands substantial judicial deference. That interpretation
"becomes of controlling weight unless it is plainly erroneous
or inconsistent with the regulation." Id. at 414. More
recently, in Auer v. Robbins, the Court held that such defer-
ence is not to be withheld merely because the agency's
reading of the regulation comes in form of a legal brief. See
519 U.S. 452, 462 (1997); see also Nat'l Wildlife Federation v.
Browner, 127 F.3d 1126, 1129 (D.C. Cir. 1997) ("The mere
fact that an agency offers its interpretation in the course of
litigation does not automatically preclude deference to the
agency.").

There are at least three preconditions for applying this so-
called Auer deference. First, the language of the regulation
in question must be ambiguous, lest a substantively new rule

be promulgated under the guise of interpretation. See Chris-
tensen v. Harris County, 529 U.S. 576, 588 (2000). Second,
there must be "no reason to suspect that the interpretation
does not reflect the agency's fair and considered judgment on
the matter in question." Auer, 519 U.S. at 462; see also
Bigelow, 217 F.3d at 878. Finally, the agency's reading of its
regulation must be fairly supported by the text of the regula-
tion itself, so as to ensure that adequate notice of that
interpretation is contained within the rule itself. See Auer,
519 U.S. at 461.

There is no doubt that s 40.37 is ambiguous in its reach.
And the interpretation advanced by the FAA, which applies
the rule only to test or laboratory certification results, and
not to requests presented to the agency itself, resolves that
underlying ambiguity quite sensibly. The phrase "relating to
his or her drug test" is plastic, and can plausibly be read
either narrowly, particularly in light of the provision's title, or
broadly, as referring to any records bearing on or connected
to a drug test. By focusing on the title to determine the
scope of the text, the FAA has adopted a reasonable construc-
tion.

The regulation is silent on the question of to whom the
employee may present a "written request" in order to gain
access to his or her testing records. It is not inconsistent
with the provision - and actually quite consistent with the
structure of the Part 40 regulations as a whole - to construe
this silence as the agency has now done. Part 40 imposes
obligations on regulated carriers and affiliated laboratories,
not on the FAA itself. These are the entities that actually
conduct the drug testing, and who therefore would generally
maintain records relating to such tests. It therefore makes
perfect sense to read s 40.37 to allow employees to seek such
information from private entities.

Accordingly, the interpretation of the regulation advanced
by the FAA during this litigation is controlling unless we
discern some reason to believe that it is not "fair and consid-
ered." In conducting this inquiry, we consider whether the
agency has "ever adopted a different interpretation of the

regulation or contradicted its position on appeal." National
Wildlife, 127 F.3d at 1129. Where the agency's litigation
position is consistent with its past statements and actions,
there is good reason for the court to defer, for then the
position seems "simply to articulate an explanation of long-
standing agency practice." Akzo Nobel, 212 F.3d at 1304; see
also Ass'n of Bituminous Contractors, Inc. v. Apfel, 156 F.3d
1246, 1252 (D.C. Cir. 1998) (distinguishing between explana-
tions of a rationale implicitly adopted by the agency in its
prior actions and explanations that offer new explanations for
conduct previously defended on other grounds).

So it is here. The FAA's litigation position that s 40.37
applies neither to the FAA nor to documents relating to FAA
investigations of carriers is in accord with the agency's han-
dling of Drake's information requests solely under FOIA and
treating the Part 40 rules as irrelevant. The FAA did not
vacillate or reverse itself on this point. See Akzo Nobel, 212
F.3d at 1304-05 (concluding that the "flip-flops here mark the
Secretary's position as the sort of 'post hoc rationalizations' to
which courts will not defer") (quoting Martin v. OSHRC, 499
U.S. 144, 156 (1991)). Furthermore, Drake can point to no
prior situations during which the FAA has followed a practice
different from the one it has invoked in this case. See
Bigelow, 217 F.3d at 878 (deferring where there were "no
past practices or pronouncements" inconsistent with agency's
"current interpretation"). And, finally, as noted above, the
FAA's litigation position finds support in the NPRM issued to
amend Part 40.

Accordingly, we have no reason to believe that the FAA's
reading of s 40.37 represents anything but its fair and consid-
ered understanding. Deferring to that reasonable interpreta-
tion, we find that s 40.37 does not apply to Drake's request
for documents, and that accordingly his claim is moot.

C. Drake's Remaining Claims

The District Court invoked sovereign immunity to support
its dismissal of the remainder of Drake's action. Drake
contends that this was error, arguing that the court instead
should have viewed his pro se allegations as three separate

claims each of which survives the Government's 12(b)(6)
motion. We address each of these claims in turn.

1. APA Claim

Drake claims that the FAA's decision not to find Delta in
violation of the agency's Part 40 rules violated the APA. In
other words, according to Drake, Delta so manifestly disobey-
ed the FAA's regulations in processing Drake's urine sample
that the FAA abused its discretion in concluding otherwise.

The agency's actions in this context were governed by 49
U.S.C. s 46101. Under this provision, any person may file a
complaint with the FAA asserting a violation of one of the
agency's regulations. The agency is directed to look into the
matter "if a reasonable ground appears to the Secretary [of
Transportation] or Administrator [of the FAA] for the investi-
gation." s 46101(a)(1). Here, Drake filed such a complaint
against Delta, and the FAA conducted an investigation.
What happened next falls within the ambit of s 46101(a)(3),
which provides that:

The Secretary of Transportation or Administrator may
dismiss a complaint without a hearing when the Secre-
tary or Administrator is of the opinion that the complaint
does not state facts that warrant an investigation or
action.

(Emphasis added.) It is this dismissal that Drake now seeks
to challenge. We reject this challenge, because we find that
the FAA's decision to dismiss Drake's complaint without a
hearing is "committed to agency discretion by law," and thus
excluded from review under the APA. 5 U.S.C. s 701(a)(2).

While the APA embodies a "basic presumption of judicial
review," Abbott Laboratories v. Gardner, 387 U.S. 136, 140
(1967), s 701(a)(2) bars judicial review of agency action when
the matter in dispute has been "committed to agency discre-
tion by law." The Supreme Court's first significant discus-
sion of s 701(a)(2) came in Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402 (1971). There, the Court indicated
that this is a "very narrow exception," which applies only "in
those rare instances where 'statutes are drawn in such broad

terms that in a given case there is no law to apply.' " Id. at
410 (quoting S. Rep. No. 79-752 (1945)).

Since the Court's decision in Overton Park, the "no law to
apply" formula has come to refer to the search for substan-
tive legal criteria against which an agency's conduct can be
seriously evaluated. If no such "judicially manageable stan-
dards" are discernable, meaningful judicial review is impossi-
ble, and agency action is shielded from the scrutiny of the
courts. Heckler v. Chaney, 470 U.S. 821, 830 (1985); Webster
v. Doe, 486 U.S. 592, 599-600 (1988). In such circumstances,
the courts have no legal norms pursuant to which to evaluate
the challenged action, and thus no concrete limitations to
impose on the agency's exercise of discretion. In other
words, s 701(a)(2) encodes the principle that an agency can-
not abuse its discretion, and thus violate s 706(2)(A), where
its governing statute confers such broad discretion as to
essentially rule out the possibility of abuse.

In determining whether a matter has been committed
solely to agency discretion, we consider both the nature of the
administrative action at issue and the language and structure
of the statute that supplies the applicable legal standards for
reviewing that action. See, e.g., Legal Assistance for Viet-
namese Asylum Seekers v. Dep't of State, Bureau of Consu-
lar Affairs, 104 F.3d 1349, 1353 (D.C. Cir. 1997). The
Supreme Court has recognized that certain categories of
administrative decisions, including refusals to take enforce-
ment actions, 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 (1993).

In the present case, the FAA's decision to dismiss Drake's
complaint without a hearing was equivalent to a decision not
to commence an enforcement action. Such a hearing is a
prerequisite to an FAA finding that a carrier has committed a
statutory or regulatory violation. See 49 U.S.C.
s 46101(a)(4). Here, the agency determined that no hearing
was necessary because the facts stated in Drake's complaint
were insufficient to warrant further action. The FAA's action
in this case was thus analogous to an exercise of "prosecutori-

al discretion" of the sort discussed in Chaney. And, as
Chaney makes clear, when prosecutorial discretion is at issue,
the matter is presumptively committed to agency discretion
by law. See Block v. SEC, 50 F.3d 1078, 1082 (D.C. Cir. 1995)
(concluding that an agency's refusal to hold a hearing for the
purpose of establishing the factual basis for subsequent en-
forcement action is subject to Chaney's presumption against
judicial review).

In an effort to avoid Chaney's presumption against judicial
review, Drake argues that he is merely challenging the
specific findings of the FAA that led the agency not to
commence an enforcement action. In other words, Drake
contends that there is "law to apply" in the sense indicated by
the Supreme Court in Overton Park, because the agency
made specific findings to support its judgment and these
findings are subject to review under s 706(2)(A) of the APA.
This is a superficially appealing argument, but it ultimately
fails for two related reasons.

First, it is clear that the FAA's factual findings were
inextricably intertwined with its decision not to issue a com-
pliance order against Delta. In other words, the FAA's
decision that the facts did not show a violation of Part 40 was
inseparable from its decision to take no further prosecutorial
action against the carrier. This is not to suggest that such
agency findings are never subject to judicial review. Instead,
our point is that when, as here, such determinations are a
prerequisite to an enforcement action, we would read Chaney
far too narrowly to conclude that a challenge to the adequacy
of agency findings is not in substance a challenge to the
agency's refusal to enforce. See Block, 50 F.3d at 1081
(suggesting that Chaney applies not merely to an agency's
decision not to commence enforcement action in the case of a
recognized violation, but also to "its antecedent judgment
upon the question of whether a violation has occurred")
(internal quotation marks omitted).

Second, whether this case is governed by Overton Park
("no law to apply" so the presumption of reviewability is lost)
or Chaney (agency action involved an exercise of prosecutori-

al discretion and presumption of non-reviewability has not
been overcome), Drake cannot prevail. This is so because, in
the end analysis, the statute at issue gives virtually unfet-
tered discretion to the FAA to act as it did in this case.

Chaney's presumption against judicial review may be re-
butted where the relevant statute supplies meaningful stan-
dards to cabin the agency's otherwise plenary discretion. See
Chaney, 470 U.S. at 832-33; see also Vigil, 508 U.S. at 193
("Congress may always circumscribe agency discretion to
allocate resources by putting restrictions in the operative
statutes...."); Block, 50 F.3d at 1082 (noting that "an en-
forcement decision that would otherwise be unreviewable is
subject to judicial review if the Congress or the agency itself
has provided a meaningful standard for the agency to follow
in exercising its enforcement power"). Accordingly, we may
review the FAA decisions challenged by Drake only if the
operative statute provides clear guidelines by which to do so,
or otherwise evinces an intent to constrain the FAA's discre-
tion.

In this case, however, the statute does just the opposite.
The language of s 46101(a)(3), which set the terms for the
FAA's decision to dismiss Drake's complaint without a hear-
ing, is highly discretionary. Indeed, a provision that allows
the Administrator to act when she "is of the opinion that the
complaint does not state facts that warrant an investigation,"
gives the FAA virtually unbridled discretion over such deci-
sions. The only statutory reference point is the Administra-
tor's own beliefs. Therefore, a court has no meaningful
standard against which to judge the agency's exercise of
discretion, at least so long as the agency's action does not
otherwise infringe some constitutional right or protection.
See Webster, 486 U.S. at 603-04.

The Supreme Court has relied on an analogous distinction
between a subjective standard (whether the agency thinks
that a condition has been met) and an objective one (whether
the condition in fact has been met) in deciding that agency
action was unreviewable. In Webster, the Court held that a
provision allowing termination of a CIA employee whenever

the agency's Director "shall deem such termination necessary
or advisable in the interests of the United States" precluded
judicial review of that decision. Id. at 600 (quoting 50 U.S.C.
s 403(c)). What may be thought necessary may not in fact be
necessary, but a court may pass judgment only on the latter,
not the former.

Thus, whether this case involves a presumption of non-
reviewability under Chaney or, instead, a presumption of
reviewability under Overton Park, Drake's claim still fails
because there is "no law to apply." See, e.g., Claybrook v.
Slater, 111 F.3d 904, 908-09 (D.C. Cir. 1997) (decision of
agency representative to adjourn a meeting whenever "he
determines it to be in the public interest" was committed to
agency discretion by law) (emphasis added). In sum, then, it
is clear that the relevant statutory language "fairly exudes
deference" to the FAA, and "foreclose[s] the application of
any meaningful judicial standard of review." Webster, 486
U.S. at 600. We therefore have no basis upon which to
review the FAA's decision to dismiss Drake's complaint with-
out a hearing. Appellant has therefore failed to state a claim
under the APA.

2. Bivens Claim

We need not linger long over Drake's argument that his
complaint states a colorable Bivens claim. The complaint
names only the FAA itself as defendant. Drake neither
named nor served any individual defendants. It is of course
well-settled that Bivens liability cannot be imposed on an
agency of the Federal Government. See FDIC v. Meyer, 510
U.S. 471 (1994). Drake's constitutional claim against the
FAA thus fails.

Aware of this problem, amicus asks us to allow Drake to
correct this pleading deficiency on remand. Because we have
rejected all of appellant's claims, however, there is nothing to
remand. Insofar as we are being asked to send the case back
merely so that Drake may amend his complaint, this request
comes too late. See Gov't of Guam v. Am. President Lines,

28 F.3d 142, 149-51 (D.C. Cir. 1994) (holding that plaintiffs
whose complaints are dismissed waive their right to amend
following appeal if they failed to seek leave to amend from the
District Court); United States ex rel. Totten v. Bombardier
Corp., 286 F.3d 542, 552-53 (D.C. Cir. 2002) (confirming that
this rule applies so long as the Court of Appeals affirms the
dismissal of the complaint).

3. FTCA Claim

Finally, we reject Drake's complaint resting on the Federal
Tort Claims Act. By its own terms, the FTCA does not
apply to any claim that is "based upon the exercise or
performance or the failure to exercise or perform a discre-
tionary function or duty on the part of a federal agency ...
whether or not the discretion involved be abused." 28 U.S.C.
s 2680(a). As our discussion of appellant's APA claim has
demonstrated, the FAA's decision to dismiss Drake's com-
plaint without a hearing in light of its finding that Delta did
not violate Part 40 plainly represents an exercise of the
agency's discretion. Accordingly, the District Court's deci-
sion that Drake stated no claim under the FTCA was entirely
correct.

Drake argues that the FAA's governing statute contains
certain mandatory elements that, if disregarded, could serve
as the basis for an FTCA action. Specifically, he points to
the provision mandating that the Administrator "shall issue
an order to compel compliance with this part if the Secretary
or Administrator finds in an investigation under this subsec-
tion that a person is violating this part." 49 U.S.C.
s 46101(a)(4) (emphasis added). We have no occasion to
address whether disobeying such a statutory command could
give rise to FTCA liability, because there has been no such
disobedience in this case. The whole basis for Drake's com-
plaint is that the FAA did not find a violation. Accordingly,
whatever obligations this statutory scheme may impose on
the FAA simply have not been triggered.

 III. CONCLUSION

For the reasons given above, the decision of the District
Court is affirmed.

It is so ordered.