CDL holder reasonably subject to drug testing as “new” hire

A CDL license holder is reasonably subject to random drug testing under 49 C.F.R. § 382.305 whenever he becomes a “new employee,” and plaintiff came back to work at the same company three times. There was no factual dispute he consented to the test. Fontaine v. Clermont County Bd. of Comm’rs, 2007 U.S. Dist. LEXIS 65877 (S.D. Ohio September 6, 2007):

Here, the job Plaintiff sought required that he operate equipment, including jet trucks, tractors, and backhoes (doc. 19, Exhibit H). The job further required that he maintain a CDL. (Id.). The Court concludes the Board’s legitimate government interests in having drug-free employees operating such equipment, and its duty to conduct random testing on those employees holding CDL’s, provide ample justification for the drug testing here that outweighs Plaintiff’s Fourth Amendment interests. Skinner, 489 U.S. at 619. The Court simply cannot find unreasonable the drug testing under these circumstances.

Under § 1983, state tort limitations are borrowed, but plaintiff was barred by Heck as long as his conviction was in effect, so he could not bring his action until he set it aside about 16 years after his conviction. Cleary v. County of Macomb, 2007 U.S. Dist. LEXIS 65811 (E.D. Mich. September 6, 2007):

Plaintiff argues that he is asserting constitutional violations under both the Fourth and Fourteenth Amendments. Plaintiff contends that he has alleged a “continued detention without probable clause” claim in violation of the Fourth Amendment and due process violations under the Fourteenth Amendment, including “Brady violation[s] and [] fabrication of evidence claim[s] ….” (Pl.’s Resp. to Barone at 41-42.) Plaintiff argues that the statute of limitations did not begin to run on these claims until the charges against him were dismissed on February 2, 2005.

This Court agrees with Plaintiff. As provided in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), if Plaintiff would have brought his current Fourth and Fourteenth Amendment challenges while his conviction and sentence remained in effect, such a claim would have implied the invalidity of conviction or sentence requiring Plaintiff to “prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck, 512 U.S. at 486-87, 114 S. Ct. at 2372. Plaintiff was unable to make the requisite proof until February 2, 2005. Thus, the Court concludes that Plaintiff’s remaining Fourth and Fourteenth Amendment claims against Defendants accrued on February 2, 2005. Because Plaintiff filed the present action on December 12, 2006, well within the three-year limitations period, his claims against Defendants are not time-barred.

Comment: I can’t help but think that when Heck was decided, the Supreme Court thought that it was limiting claims, but now it is being used to extend the limitations period for those who could not have been brought when they were in jail.