NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3728

___________

SHIRLEY FREEMAN,

 Appellant

v.

MIDDLE TOWNSHIP BOARD OF EDUCATION; MICHAEL J. KOPAKOWSKI, 

Individually and as agent, servant and employee of Middle Township Board of 

Education; WALTER F. LANDGRAF, Individually and as agent, servant and employee 

of Middle Township Board of Education; LISA HULME, Individually and as agent, 

servant and employee of Middle Township Board of Education; LIFE CARE MEDICAL; 

QUEST DIAGNOSTICS, INC.; MARY JO QUIGLEY, Agent, Servant, and employee of 

Life Care Medical and Quest Diagnostic; LEONARD KRAUS

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 1:10-cv-06024)

District Judge: Honorable Renée Marie Bumb

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 13, 2013

Before: SCIRICA, JORDAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: June 28, 2013)

_________

OPINION

_________

PER CURIAM
2

Shirley Freeman, a school bus driver in Middle Township, New Jersey, accused 

the defendants of violating her rights in connection with a random workplace drug and 

alcohol test.

1

Freeman‘s refusal to take the test led ultimately to her termination. Before 

final disposition, defendants Krauss, Quigley, Life Care Medical, and Hulme were 

voluntarily dismissed from the action. The remaining defendants moved for summary 

judgment, which the District Court granted in their favor. See generally Freeman v. 

Middle Twp. Bd. of Educ., No. 10-CV-6024, 2012 WL 3715925 (D.N.J. Aug. 27, 2012). 

Although Freeman had representation in the District Court, she now appeals its 

disposition pro se. We have jurisdiction pursuant to 28 U.S.C. § 1291 and conduct 

plenary review. See Rescigno v. Walters, 773 F.2d 47, 47 (3d Cir. 1985) (per curiam).

We must first determine which issues are properly before us. We ―generally 

refuse to consider issues that are raised for the first time on appeal.‖ Newark Morning 

Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir. 1976). Also, appellants are 

generally required to raise in their opening briefs (not their reply briefs) the matters they 

wish to dispute. See, e.g., Ethypharm S.A. Fr. v. Abbott Labs., 707 F.3d 223, 231 n.13 

(3d Cir. 2013) (explaining that issues not so raised may be considered waived). These 

rules, while important, are not inflexible. Pro se parties are afforded liberal construction 

of their submissions and pleadings, ―[a]nd at least on one occasion, we have refused to 

apply the doctrine of appellate waiver when dealing with a pro se litigant.‖ Mala v. 

 

1 We write primarily for the parties and will assume their familiarity with the underlying 
3

Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (citing Tabron v. Grace, 6 

F.3d 147, 153 n.2 (3d Cir. 1993)). But see Timson v. Sampson, 518 F.3d 870, 874 (11th 

Cir. 2008) (per curiam) (―[I]ssues not briefed on appeal by a pro se litigant are deemed 

abandoned . . . . Moreover, we do not address arguments raised for the first time in a pro 

se litigant‘s reply brief.‖). 

Having established our framework of review, we turn to Freeman‘s opening 

informal brief, which she has divided into several ―Points.‖ In points one through three, 

she argues that Middle Township and its entities are not ―employers‖ operating in 

―commerce,‖ and are thus not governed by certain United States Department of 

Transportation (DOT) regulations, including those (such as the drug-testing regulation, 

49 C.F.R. § 382.305) promulgated in the wake of the Omnibus Transportation Employee 

Testing Act of 1991. See Williams v. United Parcel Serv., Inc., 527 F.3d 1135, 1137 

(10th Cir. 2008) (discussing the background of employee drug testing); see also

Anderson v. Indep. Sch. Dist., 357 F.3d 806, 807–08 (8th Cir. 2004). In point four, 

Freeman insists that the District Court ―erred by dismissing the . . . past random drug and 

alcohol testing‖ because those tests were administered during off-duty hours and without 

cause, resulting in an illegal search and seizure under the Fourth Amendment. In point 

five, she objects to the dismissal of certain defendants, while averring that the Life Care

Medical lab was not ―certified‖ in compliance with federal regulations. And in point six, 

 

facts.
4

Freeman suggests that the District Court erred by considering Kopakowski‘s testimony,

because ―accepting [his] recommendation‖ to enroll in an employee assistance program

(EAP) and take another drug test would have led Freeman to further violate the law. 

Finally, Freeman identifies certain facts that were incorrectly decided by the District 

Court, although her arguments overlap with the complaints identified above. 

Several of Freeman‘s issues either were not raised below or are irrelevant to 

matters currently on appeal. Her regulatory argument in points one through three is a 

marked departure from the case presented to the District Court—which relied, in part, on 

arguing that the defendants‘ conduct violated applicable federal regulations. Thus, 

because the regulatory issue was not raised below, we decline to reach it.2 And in point 

five, Freeman objects to the dismissal of certain parties, failing to mention that she 

voluntarily consented to those dismissals. 

 

2 Among Freeman‘s allegations in the District Court were those involving the defendants‘ 

purported failure to comply with federal regulations governing these tests. See, e.g., 

Second Am. Compl. ¶¶ 1-9, 1-12, 3-5, ECF No. 28. Elsewhere, Freeman argued that the 

specific test that led to her termination was not federally mandated. See, e.g., 

Counterstatement of Material Facts ¶ 1, ECF No. 60. For the sake of completeness, we 

note that the relevant regulatory definition of ―commerce‖ is quite broad, and it is 

undeniable that operating a school bus in New Jersey requires a commercial driver‘s 

license. See 49 C.F.R. §§ 382.103(a) & (c), 382.107; N.J. Motor Vehicle Comm‘n, 

Commercial Driver License Manual § 10-117 et seq., 

http://www.state.nj.us/mvc/pdf/Commercial/CDL_Manual_english.pdf. Those courts to

have considered the issue have found school bus drivers to be within reach of the relevant 

regulations. See, e.g., Rhoads v. Bd. of Educ. of Mad River Local Sch. Dist., 103 F. 

App‘x 888, 889 n.1 (6th Cir. 2004) (nonprecedential); English v. Talladega Cnty. Bd. of 

Educ., 938 F. Supp. 775, 778–79 (N.D. Ala. 1996).
5

Left remaining are points four and six. With regard to the allegation that drug

tests were administered during off-duty hours and ―without cause,‖ we note, as a 

preliminary matter, that ―[t]here is no private cause of action available to aggrieved 

employees for a violation of the procedural protections‖ of the federal drug-testing

regime. Williams, 527 F.3d at 1137; see also Burton v. Southwood Door Co., 305 F. 

Supp. 2d 629, 634 (S.D. Miss. 2003) (collecting cases to show that ―[n]umerous courts 

have concluded that there is no private right of action to enforce DOT drug testing 

regulations‖).3 Further, the regulations do appear to contemplate testing after the 

performance of safety-sensitive functions has ceased. See 49 C.F.R. § 382.305(l). 

In any event, the District Court properly analyzed the state and federal 

constitutional dimensions of this claim under the ―special needs‖ test. See Skinner v. Ry. 

Labor Executives‘ Ass‘n, 489 U.S. 602, 633–34 (1989); Neumeyer v. Beard, 421 F.3d 

210, 213–14 (3d Cir. 2005). And we agree (for substantially the same reasons articulated 

by the District Court) that neither the alleged violations of protocol identified nor the 

testing procedure itself violated the Fourth Amendment. Cf. Krieg v. Seybold, 481 F.3d 

512, 518–19 (7th Cir. 2007) (holding that random, suspicion-less testing of a streets and 

sanitation employee passed constitutional muster under the special needs test); Gonzalez 

 

3

The record suggests that some of Freeman‘s objections pertaining to the samplecollection method were nonetheless acknowledged and addressed by the relevant 

defendants.
6

v. Metro. Transp. Auth., 174 F.3d 1016, 1021 (9th Cir. 1999) (remanding claims brought 

by bus dispatchers and instructors because, on a limited record, ―we do not yet know 

whether dispatchers and instructors would cause physical risk to passengers if impaired‖; 

what ―was critical in [a prior case] was that the persons tested could be impaired  ̳behind 

the wheel‘‖). 

With regard to the alleged error in accepting Kopakowski‘s testimony, the District 

Court‘s use of the information was in line with the relevant standards for resolving 

summary judgment motions and did not stray from the parties‘ own understanding of 

Kopakowski‘s communications with Freeman. Compare Def.‘s Statement of Material 

Facts ¶¶ 63–80, ECF No. 53-3, with Pl.‘s Counterstatement of Material Facts ¶¶ 63–80. 

The actual effectiveness of the EAP program is beyond the ken of our review, but it is 

undisputed that the defendants believed that Freeman‘s participation in the exercise 

would enable her to return to service.

For the reasons discussed above, we detect no error in the District Court‘s 

judgment. Accordingly, we will affirm.4

 

4 Although we deem any unraised claims to be waived, our consideration of the District 

Court‘s decision did not reveal any other errors that would lead to a different outcome.