Petition for Writ of Certiorari — Justin Grimsrud, Petitioner v. Department of Transportation
Supreme Court briefNov 16, 2018
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No. 18-_____
IN THE
Supreme Court of the United States
_________
JUSTIN GRIMSRUD,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Federal Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
MICHAEL J. KATOR
Counsel of Record
JULIETTE M. NIEHUSS
DANIEL R. CLARK
KATOR, PARKS, WEISER
& HARRIS
1200 18th Street, N.W.
Suite 1000
Washington, D.C. 20036
(202) 898-4800
mkator@katorparks.com
November 16, 2018
-iQUESTION PRESENTED
Petitioner, a tenured civil servant, was terminated
from his position following a positive drug test. Insisting he had never used illegal drugs and therefore the
tested specimen could not be his, he requested an
aliquot of the sample to conduct DNA testing. Based
on a Department of Transportation regulation forbidding DNA testing of drug samples, however, his
request was denied and his termination sustained.
Was petitioner deprived of a fair and meaningful
opportunity to protect his property interest when he
was denied the opportunity to access and examine the
sole evidence upon which his termination was based?
-iiiTABLE OF CONTENTS
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . .
i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CONSTITUTIONAL AND REGULATORY
PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . 2
STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
REASONS FOR GRANTING THE PETITION . . . . 5
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Appendix A:
Judgment, U.S. Court of Appeals for the Federal
Circuit, Apr. 11, 2018 . . . . . . . . . . . . . . . . . . . . . 1a
Appendix B:
Initial Decision, U.S. Merit Systems Protection
Board, Feb. 3, 2016 . . . . . . . . . . . . . . . . . . . . . . 3a
Appendix C:
Final Decision, U.S. Merit Systems Protection
Board, Jan. 6, 2017 . . . . . . . . . . . . . . . . . . . . . . 77a
Appendix D:
Order, Denial of Rehearing and Rehearing en
banc, U.S. Court of Appeals for the Federal
Circuit, Aug. 31, 2018 . . . . . . . . . . . . . . . . . . . . 79a
-ivTABLE OF AUTHORITIES
CASES
Page
Arizona v. Youngblood, 488 U.S. 51 (1988) . . . . . . 16
Armstrong v. Manzo, 380 U.S. 545 (1965) . . . . . . . . 8
Banks v. FAA, 687 F.2d 92 (5th Cir. 1982) . . . . . . . 6
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564
(1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Boddie v. Connecticut, 401 U.S. 371 (1971) . . . . . 8, 9
Brock v. Roadway Express, Inc., 481 U.S. 252 (1987)
........................................... 8
California v. Trombetta, 467 U.S. 479 (1984) . . . . 16
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532
(1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11
Dist. Attorney’s Office for the Third Judicial Dist. v.
Osborne, 557 U.S. 52 (2009) . . . . . . . . . . . . . . . . . . . 9
Drake v. Lab Corp. of Amer. Holdings, 290 F.Supp.
2d 352 (E.D.N.Y. 2003) . . . . . . . . . . . . . . . . . . . . . . 12
Forte v. Dep’t of the Navy, 123 M.S.P.R. 124 (2016)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Gilbert v. Homar, 520 U.S. 924 (1997) . . . . . . . . . . 7
Grimsrud v. Dep’t of Transp., 902 F.3d 1364 (2018)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Helferty v. United States, 113 Fed. Cl. 308 (2013),
aff’d, 586 F. App’x 586 (Fed. Cir. 2014) . . . . . . . . . 13
-vTABLE OF AUTHORITIES—Continued
Houston Fed’n of Teachers, Local 2415 v. Houston
Indep. Sch. Dist., 251 F.Supp. 3d 1168 (S.D. Tx.
2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Ivery v. Dep't of Transp., 96 M.S.P.R. 119 (2004)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Kimmelman v. Morrison, 477 U.S. 365 (1986) . 10, 16
King v. Erickson, 89 F.3d 1575 (Fed. Cir. 1996) . . . 8
Kloeckner v. Solis, 568 U.S. 41, 56 (2012) . . . . . . . . 7
Lachance v. Erickson, 522 U.S. 262 (1998) . . . . . . . 8
Little v. Streater, 452 U.S. 1 (1981) . . . . . . . . . . . . . 9
Mathews v. Eldridge, 424 U.S. 319 (1976) . . . . . . . 15
Meza v. Dep’t of Homeland Sec., 275 Fed. Appx. 987
(Fed. Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Miller v. French, 530 U.S. 327 (2000) . . . . . . . . . . . 8
Moreno v. ODACS, Inc., 21 N.E.3d 363 (Ohio Ct.
App. 2014)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 17
Perry v. MSPB, 137 S. Ct. 1975 (2017) . . . . . . . . . . 7
Perry v. Sindermann, 408 U.S. 593 (1972) . . . . . . . 7
Storm v. Dep’t of the Army, 64 M.S.P.R. 14 (1994)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Swaters v. Dep’t of Transp., 826 F.3d 507 (D.C. Cir.
2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16
United States v. Luke, 63 M.J. 60 (C.A.A.F. 2006)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
-viTABLE OF AUTHORITIES—Continued
CONSTITUTION, STATUTES, AND PUBLIC
LAWS
28 U.S.C. § 1254 (2012) . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 1295 (2012) . . . . . . . . . . . . . . . . . . . . . . . 4
All Circuit Review Act, Pub. L. No. 115-195, 132 Stat.
1510 (July 7, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Omnibus Transportation Employee Testing Act,
Pub. L. No. 102-14349 (codified as 49 U.S.C. § 45101,
et seq.) (Nov. 4, 1992). . . . . . . . . . . . . . . . . . . . . . . . 17
United States Constitution, Amendment V . . . . . . . 2
REGULATIONS
49 C.F.R. § 40.13 (2014) . . . . . . . . . . . 2, 3, 11, 12, 16
5 C.F.R. § 1200.3 (2017) . . . . . . . . . . . . . . . . . . . . . . 5
OTHER AUTHORITIES
Department of Transportation Procedures for
Transportation Workplace Drug and Alcohol Testing
Programs; Final Rule, 65 Fed. Reg. 79,462, 79,484
(Dec. 19, 2000) . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14
DEP’T OF JUSTICE, I-2014-004, AN ASSESSMENT OF
THE 1996 DEPARTMENT OF JUSTICE REVIEW OF THE
FBI LABORATORY, EVALUATION AND INSPECTIONS
REPORT (July 2014) . . . . . . . . . . . . . . . . . . . . . . . . 12
-viiTABLE OF AUTHORITIES—Continued
HHS Mandatory Guidelines for Federal Workplace
Drug Testing Programs, 73 Fed. Reg. 71,858, 71,861
(Nov. 25, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Leo Shane III, Troop Drug Dismissals Suspended
Due to Lab Contamination Concerns, MILITARY
TIMES (June 21, 2018) . . . . . . . . . . . . . . . . . . . . . . . 13
IN THE
Supreme Court of the United States
_________
No. 18-_________
_________
JUSTIN GRIMSRUD,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
_________
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Federal Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
Justin Grimsrud petitions this Court for a writ of
certiorari to the United States Court of Appeals for
the Federal Circuit.
OPINIONS BELOW
The decision of the court below, affirming the
Merit Systems Protection Board, was entered on April
11, 2018, and is reported as Grimsrud v. Department
of Transportation, 718 Fed. Appx. 987 (Fed. Cir.
2018). Pet. App. A at 1a. The court of appeals’
decision denying rehearing and rehearing en banc was
entered on August 31, 2018, and is reported at 902
F.3d 1364. Pet. App. D at 79a. The Board’s
Administrative Judge’s Initial Decision is unreported.
-2Pet. App. B at 5a. The decision of the Merit Systems
Protection Board in Grimsrud v. Department of
Transportation, is reported at 124 M.S.P.R. 100 (Jan.
6, 2017). Pet. App. C at 77a.
JURISDICTION
The decision of the Federal Circuit sustaining
Petitioner’s termination was entered on April 11,
2018. Petitioner’s timely request for rehearing of that
decision was denied on August 31, 2018. This petition
is, accordingly, filed within the time allowed by law.
Petitioner invokes the jurisdiction of this Court
pursuant to 28 U.S.C. § 1254(1) (2012).
CONSTITUTIONAL AND REGULATORY
PROVISIONS INVOLVED
United States Constitution, Amendment V, provides, in pertinent part:
No person shall be . . . deprived of life,
liberty, or property, without due process
of law . . . .
Title 49, Code of Federal Regulations, Section
40.13 provides, in pertinent part:
(c) Except as provided in paragraph (d)
of this section, you must not perform any
tests on DOT urine or breath specimens
other than those specifically authorized
by this part or DOT agency regulations.
For example, you may not test a DOT
urine specimen for additional drugs, and
-3a laboratory is prohibited from making a
DOT urine specimen available for a DNA
test or other types of specimen identity
testing.
STATEMENT
Petitioner Justin Grimsrud was employed by
Respondent Department of Transportation (“DOT”) as
an Air Traffic Control Specialist. In the course of his
employment, he was regularly screened for alcohol
and drug use. One such screening returned a positive
result for cocaine metabolite.
Petitioner maintained that he had never used
cocaine in his life. Thus, certain that there was an
error in the testing, he promptly went to an
independent laboratory for blood, urine, and hair
follicle tests for cocaine. All returned negative results.
So too, he took and passed a polygraph test regarding
his assertion that he never took cocaine.
Based solely on the positive test result, however,
DOT terminated Petitioner from his employment. In
his post-termination appeal to the Merit Systems
Protection Board (“Board”), Petitioner again asserted
that the sample could not be his and he sought an
aliquot of the sample for independent testing,
including DNA testing. Initially, DOT responded to
Petitioner’s request by asserting that the samples had
been destroyed. In response to his ensuing request to
suppress the evidence of the test results for spoliation,
however, DOT maintained that it had re-discovered
the samples. Nonetheless, citing to DOT’s policy
forbidding DNA testing of drug testing samples, 49
-4C.F.R. § 40.13(c) (2014), DOT refused to make them
available to Petitioner.
The Administrative Judge assigned to hear
Petitioner’s appeal denied the motion to suppress
evidence of the test results and refused to require
DOT to provide aliquots of the samples for DNA
testing. Relying exclusively on the evidence of the
failed drug test, the Administrative Judge then
sustained Petitioner’s removal from federal
employment.
Petitioner appealed the Initial Decision to the
Board, again asserting that DOT’s failure to provide
him access to aliquots of the samples for DNA testing
violated his due process rights. Because the (then)
“two Board members [could] not agree on the
disposition of the petition for review,” Pet. App. C at
77a, the Administrative Judge’s Initial Decision
became the Board’s final decision.
Petitioner sought review of the Board’s decision
before the Federal Circuit pursuant to 28 U.S.C.
§ 1295(a)(9) (2012). The Court below affirmed the
Board without opinion. Petitioner timely sought
rehearing and rehearing en banc. The Court denied
Petitioner’s request for rehearing and rehearing en
banc. Two judges joined an opinion concurring in the
denial of rehearing en banc; two judges joined in one
written dissent from that decision, and one of the
dissenting judges also wrote separately to dissent.
-5REASONS FOR GRANTING THE PETITION
This case presents questions of substantial public
importance concerning the rights of public sector
employees to a fair and meaningful opportunity to
contest the stated grounds for their termination and,
more particularly, their rights to access their own
drug test specimens to conduct DNA testing. This
issue has repeatedly and increasingly arisen in federal
and state courts and administrative forums, yielding
inconsistent results.
Review by this Court is
necessary to resolve an active split in the circuits and
to ensure that public sector employees at all levels of
government are provided the full measure of
protection to which they are entitled.
1. The specific issue presented in this case,
whether public sector employees are entitled to access
to drug testing samples to conduct their own analyses
(including DNA screening), is one that divided the
Board Members who considered this case, the judges
of the Federal Circuit, and federal courts of appeals.
Review by this Court is necessary to resolve this
question and settle the split among the circuits.
As noted above, after denying Petitioner access to
his drug testing samples, the Board’s Administrative
Judge sustained his removal. The Board affirmed this
initial decision by divided vote—under 5 C.F.R.
§ 1200.3(b) (2017), “[w]hen due to a vacancy . . . the
Board members are unable to decide any case by
majority vote, the decision . . . under review shall be
deemed the final decision or order of the Board.”
-6The court below likewise split on review. Initially,
a panel of the court affirmed the Board’s decision
without issuing an opinion. In denying Petitioner’s
request for rehearing and rehearing en banc, however,
the full court split, issuing opinions concurring in and
dissenting from the denial of rehearing en banc.
As Judge Newman recognized in her dissent, the
court’s decision conflicts with Banks v. FAA, 687 F.2d
92 (5th Cir. 1982). In Banks, as with the present case,
the employees were denied the opportunity to examine
the test samples where, “the presence or absence of
cocaine in the samples alone determined the ultimate
issue,” and “[t]he results of the laboratory tests were
the only credible evidence supporting the FAA’s
charges.” Id. at 96. In ruling for the employees, the
Fifth Circuit held:
even the most rudimentary standards of
due process require here that the
claimants have access to the solitary
piece of incriminating evidence.
Id. The court’s holding was explicit:
[D]ue process required an opportunity by
the controllers to test on their own
behalf to evaluate the accuracy of the
government-sponsored tests.
Id.; see also, Houston Fed’n of Teachers, Local 2415 v.
Houston Indep. Sch. Dist., 251 F.Supp. 3d 1168, 1178
(S.D. Tx. 2017) (following Banks).
The decision of the court below conflicts with the
Fifth Circuit’s opinion in Banks. Moreover, as this
-7Court recognized in Kloeckner v. Solis, 568 U.S. 41, 56
(2012), and Perry v. MSPB, 137 S. Ct. 1975, 1987–88
(2017), judicial review of federal employee appeals is
not limited to the Federal Circuit. See also, All
Circuit Review Act, Pub. L. No. 115-195, 132 Stat.
1510 (July 7, 2018) (vesting jurisdiction in the
regional courts of appeals in federal employee appeals
involving claims of whistleblowing). Thus a federal
employee in Dallas, for example, would have different
rights than another otherwise identically-situated one
in Miami. The Board would have to apply different
substantive law depending on where the employee
works and whether they had brought a claim of
discrimination or whistle-blower retaliation. Review
by this Court is thus necessary to resolve the split in
the circuits on this fundamental issue of due process
for public sector employees and to provide uniformity
across the federal government on this recurrent issue.
2. This Court has long recognized that public
sector employees have a property interest in continued
employment protected by the Due Process Clause. See
e.g., Gilbert v. Homar, 520 U.S. 924, 928–29 (1997)
(“[W]e have previously held that public employees who
can be discharged only for cause have a
constitutionally protected property interest in their
tenure and cannot be fired without due process.”); see
also, Bd. of Regents of State Colls. v. Roth, 408 U.S.
564, 578 (1972); Perry v. Sindermann, 408 U.S. 593,
602–603 (1972).1
1
This Court’s public employee property interest cases have
focused on state and local employees’ entitlements under the
(continued...)
-8In Cleveland Board of Education v. Loudermill,
470 U.S. 532, 543 (1985), the Court reaffirmed the
bedrock principle that the Due Process Clause
requires a “meaningful” opportunity to respond to the
stated basis for taking adverse action against a
tenured civil servant. See also Boddie v. Connecticut,
401 U.S. 371, 378 (1971) (“What the Constitution does
require is ‘an opportunity [to be heard] granted at a
meaningful time and in a meaningful manner.’”
(quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965) (emphasis added))); see also, Brock v. Roadway
Express, Inc., 481 U.S. 252, 263 (1987) (the Due
Process Clause requires that “complete and
expeditious review is available” (emphasis added));
Miller v. French, 530 U.S. 327, 350 (2000) (“due
process . . . principally serves to protect the personal
rights of litigants to a full and fair hearing.”
(emphasis added)).
Petitioner claimed before the Board and before the
court below that he was denied a meaningful
opportunity to challenge the reasons asserted for his
1
(...continued)
Due Process Clause of the Fourteenth Amendment. The Court
has assumed, but never explicitly held, that the Fifth
Amendment provides similar protections to federal employees.
See Lachance v. Erickson, 522 U.S. 262, 266 (1998) (assuming
“for purposes of our decision” that “‘the [federal] government
employees here had a protected property interest in their
employment.’” (quoting King v. Erickson, 89 F.3d 1575, 1581
(Fed. Cir. 1996)). There is no reason to suggest, however, that
federal employees have any lesser interests in their employment
than have state and local employees or that the respective
protections of the Fifth and Fourteenth Amendments’ Due
Process Clauses differ in any way.
-9removal. The sole evidence supporting his termination was the drug test result. Because he knew that
he had never used cocaine and that a DNA test of the
samples would exonerate him, he sought aliquots of
the samples. DOT refused to provide this evidence
and the Board refused to order it to do so. This denial,
he claimed, deprived him of a meaningful opportunity
to challenge his separation.
In Little v. Streater, 452 U.S. 1 (1981), this Court
held that the Due Process Clause required the state to
make available blood group testing that was used to
establish an individual’s paternity. Indeed, the Court
held that the state was obligated to pay for the testing
when the individual could not afford to do so:
Without aid in obtaining blood test
evidence in a paternity case, an indigent
defendant, who faces the State as an
adversary when the child is a recipient of
public assistance and who must overcome the evidentiary burden Connecticut
imposes, lacks “a meaningful opportunity
to be heard.”
Id., at 16 (quoting Boddie, 401 U.S. at 377).
Blood group testing for identification purposes
pales in comparison to the power and efficacy of DNA
testing. As this Court has observed, “DNA testing has
an unparalleled ability both to exonerate the wrongly
convicted and to identify the guilty.” Dist. Attorney’s
Office for the Third Judicial Dist. v. Osborne, 557 U.S.
52, 55 (2009).
-10Here, it is no less true that DNA testing would
have had an unparalleled ability to exonerate
Petitioner. Indeed, in Petitioner’s case there was
virtually no other evidence that could have exonerated
him. But by denying him the opportunity to assess
and challenge the only evidence offered against him,
the government deprived Petitioner of any meaningful
opportunity to protect his property interest.
A
proceeding where the claimant is denied the
opportunity to examine and impeach the only evidence
offered against him, but instead is compelled to accept
that evidence is anything but meaningful.
Kimmelman v. Morrison, 477 U.S. 365, 395 n.2 (1986)
(due process includes the right “to subject the State’s
evidence to adversarial testing.”).
The court below endorsed a process that fell far
short of adequately protecting Petitioner’s property
interest in continued employment. Review by this
Court is necessary to ensure that the government may
not turn due process into illusory process by shielding
the bases for its actions from examination and review.
3. The concurring opinion below purported to
answer Petitioner’s due process challenge by reliance
on Executive Department regulations, guidelines, and
policies. See Pet. App. D at 87a (“Due process also
does not require the agency to make Grimsrud’s
specimen available for DNA testing. The relevant
regulations, HHS Mandatory Guidelines, and DOT
drug testing procedures make clear that DNA testing
-11of DOT urine specimens is not permitted.”).2 Other
courts too have relied on these pronouncements to
resolve constitutional questions. See, e.g., Swaters v.
Dep’t of Transp., 826 F.3d 507, 512 (D.C. Cir. 2016)
(“The meaning of § 40.13(c) is clear on its face: ‘a
laboratory is prohibited from making a DOT urine
specimen available for a DNA test or other types of
specimen identity testing.’”); Moreno v. ODACS, Inc.,
21 N.E.3d 363 (Ohio Ct. App. 2014) (considering
application of 49 C.F.R. § 40.13(c) in prohibiting
release of a drug test specimen for DNA testing).
This reliance is misplaced. As this Court held in
Loudermill, 470 U.S. at 541, once a property interest
has been established, it is the Constitution—not the
legislature or the executive—that determines what
process is due. Yet in the concurring judges’ view, the
Executive Department, ipse dixit, can determine
public employees’ constitutional rights. This is not the
law.
2
As cited in the concurring opinion:
49 C.F.R. § 40.13(c) (“[A] laboratory is prohibited
from making a DOT urine specimen available for
a DNA test or other types of specimen identity
testing.”); Procedures for Transportation
Workplace Drug and Alcohol Testing Programs,
65 Fed. Reg. 79,462, 79,484 (Dec. 19, 2000)
(“[T]he rule forbids laboratories and other
parties from making a DOT specimen available
for DNA testing.”); HHS Mandatory Guidelines,
73 Fed. Reg. [71858] at 71,861 [(Nov. 25, 2008)]
(explaining that the guidelines “prohibit DNA
testing on a specimen”) . . . .
Pet. App. D at 87a.
-12Moreover, the logic underpinning 49 C.F.R.
§ 40.13(c) further illustrates why the regulation is not
a sufficient basis upon which to define the process due
here. DOT offered two rationales for its prohibition
against releasing drug test specimen for DNA testing.
First, the DOT claimed that:
under these regulations, a properly
completed chain of custody conclusively
establishes the identity of a specimen.
No additional tests are required for this
purpose.
Department of Transportation Procedures for
Transportation Workplace Drug and Alcohol Testing
Programs; Final Rule, 65 Fed. Reg. 79,462, 79,484
(Dec. 19, 2000). In other words, according to DOT, a
properly executed chain of custody would somehow
preclude the possibility of laboratory mishandling or
error.
This reasoning hardly seems a sufficient basis to
extirpate a constitutionally protected right. As Judge
Wallach observed in his separate dissent,“[n]o agency
is infallible, and to simply take their assurances with
no other support in the record is a direct violation of
Petitioner Justin Grimsrud’s constitutional rights.”
Grimsrud, 902 F.3d at 1371 (Pet. App. D at 99a).
Experience and precedent bear this out. See e.g.,
Drake v. Lab Corp. of Amer. Holdings, 290 F.Supp. 2d
352, 356 (E.D.N.Y. 2003) (chronicling unsuccessful
attempts of flight attendant to obtain redress after
laboratory “negligently sent some other employee’s
drug test results” to his employer). See also, DEP’T OF
JUSTICE, I-2014-004, AN ASSESSMENT OF THE 1996
-13DEPARTMENT OF JUSTICE REVIEW OF THE FBI
LABORATORY, EVALUATION AND INSPECTIONS REPORT
(July 2014) (third review by the Office of the Inspector
General related to alleged irregularities by the
Federal Bureau of Investigation Laboratory; called for
Department of Justice to issue notice to certain
criminal defendants of possibility that their
convictions were supported by unreliable evidence).
See also Grimsrud, 902 F.3d at 1371–72 (Wallach, J.,
dissenting) (“See Leo Shane III, Troop Drug
Dismissals Suspended Due to Lab Contamination
Concerns, MILITARY TIMES (June 21, 2018), available
at https://www.militarytimes.com/news/pentagoncongress/2018/06/21/defense-department-suspends-al
l-drug-dismissals-over-lab-contamination-concerns/
(reporting on the Department of Defense temporarily
suspending all troop dismissals related to drug and
alcohol misuse in response to a recent Air Force Drug
Testing Laboratory study confirming concerns over
laboratory drug testing procedures and
cross-contamination due to spillage during transit);
Helferty v. United States, 113 Fed. Cl. 308, 312 (2013)
(reviewing a decision of the Board for Correction of
Naval Records and documenting a service member’s
submitted evidence of record that discussed a prior
cross-contamination at the same Naval drug
laboratory at which the service member’s urine tested
positive for cocaine), aff’d, 586 F. App’x 586 (Fed. Cir.
2014); United States v. Luke, 63 M.J. 60 (C.A.A.F.
2006) (setting aside a decision of the Navy-Marine
Corps Court of Criminal Appeals and remanding for
an evidentiary hearing given the fact that testing
performed on the accused’s DNA sample may have
been insufficient where U.S. Army Criminal
-14Investigative Laboratory drug test had potentially
been “cross-contaminated and/or switched [with other]
samples within and between [certain] cases” and
subject to other forensic misconduct).”
The second rationale articulated for DOT’s
regulation is that “the only thing a DNA test can do is
to determine, to a high level of probability, whether a
specimen and a reference specimen were produced by
the same individual.” 65 Fed. Reg. at 79484. This,
DOT reasoned, could only mean that either there was
error in the collection or testing of the specimens or
that the employee somehow submitted inauthentic
samples for testing.
“Given a proper chain of
custody,” DOT asserted, it would be “significantly
more probable in practice” that there would be
malfeasance by the employee than error by the
laboratory. Id.
Even if this were empirically true—and DOT
offered no evidence to support this supposition—this
nonetheless would be too thin a reed upon which to
rest a deprivation of property. Whether it is one in
ten, one in a hundred, or one in a million, the DOT
rule precludes the employee who has been erroneously
charged and is the subject of laboratory error from
defending his property interest.
As this Court has recognized:
due process generally requires
consideration of three distinct factors:
First, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used,
-15and the probable value, if any, of
additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would
entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The
private interest at issue here—Petitioner’s property
interest in continued employment—is substantial.
The risk of erroneous deprivation here is likewise
substantial3 yet the burden of the substitute
procedures—allowing access to the samples for DNA
testing—is de minimus. And while certainly the
government has an interest in maintaining a drugfree workforce, that interest is not fostered by blindly
discharging an employee erroneously identified as
being a drug user while the true source of the sample,
perhaps, sits at his console routing air traffic.
In adopting the regulation and this reasoning as
the basis of upholding a deprivation of a property
interest, the government, the majority of the Federal
Circuit in this case, and the District of Columbia
3
In addition to promptly voluntarily submitting to an
independent laboratory for blood, urine, and hair follicle tests for
cocaine (and taking a polygraph exam), DOT had also drug
tested Petitioner on a number of occasions. Petitioner passed all
of these tests, including a drug test DOT gave him the day after
he provided the sample upon which his removal was predicated.
Thus there were substantial reasons to question the lone
positive test.
-16Circuit in Swaters, render the constitutional
guarantee meaningless. Review by this Court is
necessary to ensure that civil servants are not
deprived of their property by governments’ and courts’
reliance on Executive pronouncements that arbitrarily
and unlawfully limit their rights to assess and
challenge the evidence underlying the stated bases for
taking their property.
4. In its broadest framing, the question presented
here is whether public servants have the right “to
subject the State’s evidence to adversarial testing.”
Kimmelman, 477 U.S. at 395 n.2. More narrowly, the
question is whether they have the right to obtain drug
testing samples for DNA testing notwithstanding
DOT’s interdiction that “a laboratory is prohibited
from making a DOT urine specimen available for a
DNA test or other types of specimen identity testing.”
49 C.F.R. § 40.13(c). In either framing, the question is
of exceptional public importance.
This is not the case where a public employer has,
in good faith, failed to retain evidence that might
exonerate the charged employee. See, e.g., Arizona v.
Youngblood, 488 U.S. 51, 57 (1988). The question here
is whether the government can refuse to provide
critical evidence it maintains in its possession and
adopt a rule that forbids making this evidence
available under any circumstance. Nor is this a case
where there were “alternative means of
demonstrating” innocence. California v. Trombetta,
467 U.S. 479, 490 (1984). Petitioner “made every
effort to clear his name after being informed of his
positive urine test, including commissioning
additional urine and hair tests and a polygraph exam,
-17as well as seeking out a DNA test to establish the
source of the positive urine sample,” Meza v.
Department of Homeland Security, 275 Fed. Appx.
987, 991 (Fed. Cir. 2008), but nothing he could muster
would overcome the positive test.
Time and again the Merit Systems Protection
Board has confronted this question. See, e.g., Meza,
275 Fed. App. at 990 (Board compelled production of
an aliquot of the sample for DNA testing); Forte v.
Dep’t of the Navy, 123 M.S.P.R. 124, 128 (2016)
(Board ordered DNA testing); Storm v. Dep’t of the
Army, 64 M.S.P.R. 14, 23 (1994) (DNA ordered to be
made available). So too, the issue has arisen in cases
involving state and local government employees. See,
e.g., Moreno, 21 N.E.3d at 364 (employee denied
access to sample on the basis of DOT regulations).4
As Judge Newman recognized in her dissent, this
case presents important questions concerning the
government’s “obligation of fair dealing with its
employees.” Pet. App. D at 90a. The court below
sanctioned a process by which governments can
compel employees to provide drug test samples, deny
the employees access to their own same samples, then
See Ivery v. Dep't of Transp., 96 M.S.P.R. 119, 122 (2004)
(Explaining that “[t]he Omnibus Transportation Employee
Testing Act, Pub. L. No. 102-14349 [codified as 49 U.S.C.
§ 45101, et seq. (Nov. 4 1992)] . . . provided for the establishment
of random drug-testing programs for controlled substance use
and for alcohol misuse to enhance safety in the aviation,
railroad, motor carrier, and mass transportation industries.”
(citation omitted)).
4
-18rely exclusively on its analyses of the samples to fire
them. Review by this Court is necessary to ensure
public employees are accorded a fair and meaningful
opportunity to access and examine the bases for their
termination, including their own drug testing samples
for DNA analysis.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari to the United States Court of Appeals for
the Federal Circuit should be granted.
Respectfully submitted,
MICHAEL J. KATOR
Counsel of Record
JULIETTE M. NIEHUSS
DANIEL R. CLARK
KATOR, PARKS, WEISER
& HARRIS
1200 18th Street, N.W.
Suite 1000
Washington, D.C. 20036
(202) 898-4800
mkator@katorparks.com
November 16, 2018
APPENDIX
1a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
_________
2017-1737
_________
JUSTIN GRIMSRUD,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
_________
Respondent.
Petition for review of the Merit Systems Protection
Board in No. NY-0752-14-0340-I-1.
_________
DECIDED: APRIL 11, 2018
_________
JUDGMENT
_________
JOHN SILVERFIELD, Naples, FL, argued for
petitioner.
DOMENIQUE GRACE KIRCHNER, Commercial
Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, argued for
respondent. Also represented by CHAD A. READLER,
2a
ROBERT E. KIRSCHMAN,
KIDD-MILLER.
_________
JR.,
ALLISON
THIS CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
PER CURIAM (LOURIE, SCHALL, and CHEN,
Circuit Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE
COURT
Dated: April 11, 2018
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
3a
APPENDIX B
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NEW YORK FIELD OFFICE
_________
DOCKET NUMBER
NY-0752-14-0340-I-1
_________
JUSTIN GRIMSRUD,
Appellant,
v.
DEPARTMENT OF TRANSPORTATION,
_________
Agency.
DATE: FEBRUARY 3, 2016
_________
Mordy Yankovich and Jonathan Bell, Esquires, Garden
City, New York, for the appellant.
Christian Lewerenz, Esquire, Jamaica, New York, for
the agency.
BEFORE
Maria M. Dominguez
Administrative Judge
4a
INITIAL DECISION
INTRODUCTION
On July 23, 2014, the appellant filed a timely
appeal with the Merit Systems Protection Board (the
Board) challenging his removal from the position of Air
Traffic Control Specialist (ATCS), AT-2152-LH, with
the agency’s Federal Aviation Administration (FAA),
Eastern Region, Air Traffic Services, New York Center
(New York Center), in Ronkonkoma, New York,
effective June 27, 20141. See Initial Appeal File (IAF),
Tabs 1; 5, Subtabs 4A, 4B. The Board has jurisdiction
over this appeal. See 5 U.S.C. §§ 75ll(a)(l)(C), 7512(1),
7513(d); 49 U.S.C. § 40122(g)(3) (2000); see also Rivera
v. Department of Transportation, 94 M.S.P.R. 216, ¶ 9
(2003 ). The hearing that the appellant requested was
held on November 7, 17, 18, and 19, 20142. For the
1
The agency’s decision to remove letter indicated that the
appellant would be removed effective the close of business on
June 26, 2014. See Initial Appeal File (IAF), Tab 5, Subtab 4B.
However, the Standard Form 50 (SF-50) listed June 27, 2014 as
the effective date. IAF, Tab 5, Subtab 4A.
2
The compact discs of the hearing will be referred to herein
as Hearing Compact Discs 1, 2, 3 and 4, depending on the date
being referenced. Hearing Compact Disc 1 (HCD1) refers to day
1 of the hearing, i.e., November 7, 2014. Hearing Compact Disc
2 (HCD2) refers to day 2 of the hearing, i.e., November 17, 2014.
Hearing Compact Disc 3 (HCD3) refers to day 3 of the hearing,
i.e., November 18, 2014. Finally, Hearing Compact Disc 4
(HCD4) refers to day 4 of the hearing, i.e., November 19, 2014.
5a
reasons stated below, the agency’s removal action is
AFFIRMED.
ANALYSIS AND FINDINGS
Background
Certain salient facts are undisputed3. Effective
August 3, 2005, the appellant received an excepted
service appointment to the position of ATCS with the
agency’s FAA, Eastern Region, Air Traffic Division. He
was initially assigned to the FAA Academy in
Oklahoma City, Oklahoma, with a non-to-exceed date
of January 29, 2006. See HCD3, appellant’s testimony;
IAF, Tab 5, Subtab 4V.
After the appellant’s graduation from the FAA
Academy at the “Developmental l” level, he was
transferred to the agency’s New York Center in
Ronkonkoma, New York, effective December 11, 2005.
See HCD3; IAF, Tab 5, Subtab 4U. On March 5, 2006,
he was transferred at the “Developmental 2" level, still
within the New York Center, see HCD3; IAF, Tab 5,
Subtab 4T, after which he was certified and promoted
to his position of ATCS effective January 18, 2009 – the
position he last occupied with the agency. See HCD3;
IAF, Tab 5, Subtab 4S. At all times relevant to this
appeal, the appellant’s position was a Testing
Designated Position (TDP), which means he was
subject to drug testing.
The parties entered into 23 stipulations. See IAF, Tabs 19,
“Agreed Upon Material Facts”; 26. However, the parties did not
agree to stipulation# 15. See id.
3
6a
On March 30, 2012, the appellant was subjected to
a urine drug test, during which time a union official
was present, in accordance with agency policy. See IAF,
Tab 19, stipulation ##’ s 1; 14. The drug test
administered on March 30, 2012 was a follow-up drug
test in accordance with an Employee Assistance
Program (EAP) and FAA-approved and monitored
Treatment and Rehabilitation Plan (TRP) dated
December 16, 20104. See id., stipulation # 2; see also
id., Tab 5, Subtab 4R.
On April 4, 2012, after testing the appellant’s
March 30, 2012 urine specimen in Bottle A for the
presence of drugs, Alere Toxicology Services (Alere)
rendered a positive result for cocaine metabolite at 165
ng/ml. See id., Tab 19, stipulation # 3; see also id., Tab
5, Subtab 4J at 39-65. The certification on the Federal
Drug Testing Custody and Control Form (CCF), which
the appellant signed on March 30, 2012, read as
follows:
I certify that I provided my urine
specimen to the collector; that I have not
adulterated it in any manner; each
specimen bottle used was sealed with
tamper-evident seal in my presence; and
that the information provided on this
form and on the label affixed to each
specimen bottle is correct.”
4
When the appellant entered into the TRP in December 2010,
he annotated under his signature that he was doing so “under
duress and with protest,”’ and was “reserving any and all rights
afforded to [him].” IAF, Tab 5, Subtab 4R at 7.
7a
Id., Tab 16, Exhibit A5.
On April 5, 2012, Harriet Lester, M.D., Regional
Flight Surgeon and Field Medical Review Officer
(FMRO), Eastern Regional Medical Office, notified the
appellant by telephone that his Bottle A sample had
tested positive for cocaine metabolite. See IAF, Tab 19,
stipulation # 4; see also id., Tab 5, Subtab 40. FMRO
Lester asked the appellant whether he wanted to have
his Bottle B urine specimen tested, to which he
responded in the affirmative. See id., Tab 19,
stipulation ##’s 5; 6.
On April 9, 2012, Dominick Zito, M.D., Deputy
Regional Flight Surgeon and FMRO who was acting on
FMRO Lester’s behalf, compared Alere’s positive test
report with the identification numbers on the copy of
the CCF and certified that the positive drug test
belonged to the appellant. See id., stipulation # 7.
5
The parties indicate that the original copy of the March 30,
2012 CCF was provided at a hearing involving a prior appeal
filed by the appellant based on the same drug test, which was
ultimately settled. See Grimsrud v. Department of
Transportation, MSPB Docket No. NY-0752-13-0073-I-l.
However, the undersigned administrative judge could not locate
the original copy in the file and does not have a record of the
original copy being moved into the record. Nonetheless, the
parties have stipulated to the facts which they intended to prove
through their reliance on the original copy (a copy of which has
been provided by the appellant). See IAF, Tab 16, Exhibit A,
Copies 1-5. In settlement of the prior appeal, the agency
reserved its right to remove the appellant again, based on that
same drug test. See Grimsrud v. Department of Transportation,
MSPB Docket No. NY-0752-13-0073-I-1, Tab 45.
8a
On April 16, 2012, after Medtox Laboratories, Inc.,
tested the appellant’s split specimen, Bottle B, it
reconfirmed the positive result for cocaine metabolites.
See id., stipulation # 8; see also id., Tab 5, Subtab 4I.
The agency received the positive reconfirmed results
for Bottle B on May 11, 2012. See id., Tab 19,
stipulation # 9; see also id., Tab 5, Subtabs 4K; 4L.
That same day, the appellant was notified via
telephone that the split specimen test of Bottle B had
reconfirmed the positive result for cocaine metabolites.
See id., Tab 19, stipulation # 10.
On April 7, 2014, Michael J. Golden, Air Traffic
Manager, New York Center, issued a notice of proposed
removal to the appellant6, giving him an opportunity to
refer himself for a second rehabilitation program7, after
which the appellant, through his attorney, provided a
written reply on May 5, 20148. See IAF, Tab 5, Subtabs
4D, 40; see also id., Tab 19, stipulation ##’s 11; 12. The
appellant declined the offer for rehabilitation in an
EAP and FAA-approved and monitored TRP.
6
As stated above in footnote 5, the agency previously removed
the appellant based on the same March 30, 2012 drug test.
However, that removal was rescinded and the instant appeal
involves a second removal action arising from the same drug
test.
7
The TRP the appellant entered into on December 16, 2010
was the first rehabilitation program he was in. See IAF, Tab 5,
Subtab 4R.
8
By letter dated April 15, 2014, Mr. Golden granted the
appellant’s request for an extension of time to file his response
on or before May 5, 2014. See id., Subtab 4E.
9a
Consequently, on June 20, 2014, Mr. Golden issued a
decision to remove the appellant effective June 26,
2014. See id., Tabs 19, stipulation # 24; 5, Subtab 4B.
This appeal followed. See id., Tab 1.
Agency’s Burden of Proof
The agency bears the burden of proving, by
preponderant evidence9, each element of its charge, and
its failure to do so will cause the charge to fail. See
Haebe v. Department of Justice, 288 F.3d 1288, 1305
(Fed. Cir. 2002); Mattson v. Department of the
Treasury, 86 F.3d 211, 214 (Fed. Cir. 1996); Smith
v.Department of Transportation, 106 M.S.P.R. 59, if 15
(2007). Normally, an agency must also demonstrate the
following: (1) The existence of a genuine nexus between
the sustained charge and the efficiency of the service,
see 5 U.S.C. § 7513(a) (2006); and (2) that the agency’s
selected penalty is within the tolerable limits of
reasonableness. See Rosenberg v. Department of
Transportation, 105 M.S.P.R. 130, if 31 (2007). The
aforementioned elements must be proven in any
adverse action. See Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 302-03, 306 n.67,
307-08 (1981).
9
Preponderant evidence is the degree of relevant evidence a
reasonable person, considering the record as a whole, would
accept as sufficient to find that a contested fact is more likely to
be true than untrue. 5 C.F.R. § 1201.56(c)(2).
10a
The agency proved by preponderant evidence that the
appellant tested positive for cocaine.
The agency’s “positive drug test” charge read as
follows:
On March 30, 2012, you provided a urine
sample under the follow-up testing
provisions of the Department of
Transportation (DOT) Order 3910.1D,
Drug and Alcohol Free Departmental
Workplace. On April 9, 2012, the Medical
Review Officer (MRO) verified a positive
drug test for cocaine metabolites. Cocaine
is a controlled substance, as defined by
Title 21 of the United States Code (21
USC), Section 802(6), and therefore, its
use is illegal and in violation of DOT and
FAA policy.
IAF, Tab 5, Subtab 4G.
Pursuant to Appendix A3, “Categorization of
Employees for Testing, Operating Administration Federal Aviation Administration” of DOT Order
3910.lD, “Drug and Alcohol-Free Departmental
Workplace Program” (dated October 1, 2010), (DOT
Order 391 O. lD), the ATCS position in job series 2152
is a Testing Designated Position. See id., Subtab 4Z.
Chapter III, Section 3, Reasons for Testing TDPs,
indicates that all employees in TDPs can be tested
under the following circumstances: (a) random; (b)
pre-employment/pre-appointment; (c) reasonable
suspicion; (d) post-accident; and (e) return-to-
11a
duty/follow up. See id. at 20, § 3; see also HCD4, Mr.
Golden ‘ s testimony.
At the hearing, the appellant testified that he was
in a follow-up program as a result of an alcohol-related
incident. Although he was involved in a car accident,
he testified that he was not the driver of the vehicle
and that “he may have been drugged.” See HCD3. He
testified that as of March 30, 2012, he had taken
upwards of 20 tests in compliance with the EAP and
FAA-approved and monitored TRP, none of which
resulted in a positive finding for drugs. According to
him, he recalled the March 30, 2012 urine collection
because that morning, his urine appeared to be
somewhat of a “brownish color.” Nonetheless, he
denied ever having ingested cocaine and testified that
subsequent tests that were administered (including a
hair follicle test and a polygraph test), all demonstrate
that he did not ingest cocaine on or before March 30,
2012. See HDC3.
The appellant called Joseph Barry, Polygraph
Examiner, to testify on his behalf. In Meier v.
Department of the Interior, 3 M.S.P.R. 247, 253-55
(1980), the Board outlined the factors to consider in
determining whether to admit the results of a
polygraph examination, and in determining the
evidentiary weight to be given the examination results.
Based on these factors, I admitted Mr. Barry’s
polygraph examination results into the record of this
appeal. See IAF, Tab 31. However, for the reasons that
follow, I find that the appellant’s polygraph results,
administered on May 22, 2013 (over a year after the
12a
positive drug test), carry little probative value in
assessing the credibility of the appellant.
Mr. Barry testified that he constructed the test so
that questions 1, la, 2 and 8 are the “known lie
questions.” Questions 4, 5, 6 and 7 were tailored for the
specific issue at hand, with questions 5 and 7 being the
“relevant” questions. Questions 4 and 6 were the
“control” questions – questions against which to
compare the reactions to questions 5 and 7 (“relevant
questions”), and which he developed approximately Yi
hour before administering the test. He testified that
here, 2 tests were required for comparison purposes,
although other times up to 3 or 4 are required. See
HCD3; see also IAF, Tabs 16, Exhibits F-5 and F-6; 31.
Mr. Barry testified that the appellant answered
“no” to question 4 (“Before 2008, did you ever tell a
serious lie?”). He gave him a couple seconds to react
appropriately, after which he asked question 5 (“In
March 2012, did you use cocaine?”) to which the
appellant responded by saying “no.” The appellant
then answered no to question 6 (“Did you ever do
anything seriously wrong in your entire life?”).
Question 7 (“Did you ever use cocaine in your entire
life?”) also resulted in a negative response from the
appellant. See HCD3.
During
cross-examination,
Mr.
Barry
acknowledged that control question 6 (“Did you ever do
anything seriously wrong in your entire life?”) was a
subjective question by virtue of the fact that what one
person considers to be “seriously wrong” may not
necessarily be considered “seriously wrong” by another.
Mr. Barry testified that he could not recall why he
13a
added the word “seriously” into the question, although
he suspected that he may have started by asking
whether the appellant ever did anything “wrong” in his
entire life, after which the appellant did not have a
“strong enough” reaction to that question.
Consequently, Mr. Barry testified that he had to make
the question strong enough to evoke a reaction that
“worked well with the appellant.” See HCD3. In both
of the tests administered by Mr. Barry, the responses
to this question showed movement in some of the
parameters, which indicated that the appellant was
“concerned with the question.”
Mr. Barry acknowledged that the appellant’s blood
pressure reaction (parameter 4) to question 5 (relevant
question about using drugs on March 30, 2012) showed
a spike as well. However, he testified that in order to
make a finding of untruthfulness, all 4 of the
parameters have to spike. He stated that the “overall
reaction,” as opposed to a reaction on the various
parameters separately, is what counts. He also
testified that the appellant’s reaction in parameter 3
(blood pressure reaction) to control question 6 (whether
he ever did anything “seriously wrong” in his “entire
life”) showed he was bothered by it. Mr. Barry testified
that this question did not bother the appellant any
more than the drug question. See HCD3.
During
cross-examination,
Mr.
Barry
acknowledged that the appellant could have answered
control question 6 by saying “no” and could have been
found to be telling the truth. However, as to the prior
question of whether he ever did “anything wrong,’‘ he
acknowledged that most people would fail that one.
14a
When asked why the question of having done anything
“seriously wrong” in his “entire life” was a valid control
question, Mr. Barry testified that the appellant must
have made some type of admission to him which
required him to add the word “seriously” to it. Mr.
Barry testified that the appellant was bothered by
question 6, as shown by his blood pressure parameter,
“although it did not bother him anymore than the drug
question did.” He testified that because the appellant’s
reactions (as shown by the blood pressure and the
breathing parameters) to both the drug question and
the “seriously wrong” question were the same, it was “a
wash.” The only difference was in the skin reaction
parameter, as it applied to question 6. See HCD3.
As far as the relevant questions were concerned,
Mr. Barry disagreed that the appellant’s reaction to
question 5 (“In March 2012, did you use cocaine?”)
depended on how he defines the word “use”10. When
asked whether it mattered if the appellant believed
someone may have drugged him without his knowledge
(in which case he may have believed he did not “use”
cocaine), Mr. Barry testified that the appellant had to
have known he was using it and “if he doesn’t know he’
s using it, that’s not his fault.” See HCD3. In response
to the question of whether the appellant’s answer to
question 5 will register being truthful depending on his
10
During his testimony, the appellant testified that he never
knowingly took any drugs but “whether or not he had ingested
them is an entirely different matter.”
See HCD3 at
1:17:46-1:17-55.
15a
alleged failure to “know” he used drugs11, Mr. Barry
testified as follows: “I test on what a person believes to
be true, not on what truth is. There is a perception of
what is wrong and right. What he’ s done – there is no
man who can sit there and say ‘I’ve never used drugs,’
if he’s used it and believes it.” HCD3.
In addition, when asked whether a person who
“truly believes something” will render of finding of
truthfulness, Mr. Barry answered affirmatively. He
also acknowledged that the appellant’s reactions to the
control question of ever doing something “seriously
wrong” and relevant questions of ever having used
cocaine in his entire life, and having used it on March
30, 2012, were the same on the blood pressure and
shortness of breath parameters. He disagreed however,
that the only difference was in the skin reaction
parameter. Mr. Barry testified that for there to be a
failure on the test, the whole test must be included in
the equation. According to him, in order to make a
finding of deception, there has to be major
inconsistencies and failures, “not just in one parameter
but in all of them.” HCD3.
Finally, when Mr. Barry was asked to describe the
mechanisms, if any, that he uses to ensure he obtains
an accurate reading, he testified that if he conducts the
test correctly, the subject will fail it if he lies. When
asked again how he can ensure that a subject does not
lie to him, Mr. Barry testified as follows: “If the subject
beats the system, he beats me and consequently, I am
not very good at what I do.” He testified that the
11
See footnote 10.
16a
polygraph instrument does exactly what it is told to do
as long as all of the following occurs: he turns it on
appropriately; attaches the components to the person
correctly; asks the target questions accurately by
properly interviewing the person ahead of time;
ensuring the subject knows what he is going to be
asked, what it means to lie, and what he has done
wrong; properly covered the drug issue; and the subject
has been given an opportunity to tell the truth.
Accordingly, he testified that if the subject still lies, he
will fail the test. Mr. Barry testified that some people
take a polygraph test better than the next person,
“which does not necessarily mean that that person is
telling [him] the truth any more than the next person
~ it just means he takes a polygraph test well.” HCD3.
Having considered all of the above (the subjective
nature of the questions posed to the appellant during
the polygraph examination; the lapse of time between
the positive drug test and the polygraph examination;
the fact that rendering an accurate polygraph result
depends on many different factors; the fact that the
appellant testified that although he never “knowingly”
took any drugs, “whether [he had] ingested them ... is
an entirely different matter”12 (see HCD3; see also IAF,
Tab 5, Subtab 4D at 21, ¶ 20); and a finding of
truthfulness depends on what the subject deems to be
the truth), I find that the polygraph examination
results at issue here carry little probative value.
On the other hand, in support of its charge, the
agency called David A. Green, Ph.D., Director of Alere
12
See footnote 10 above.
17a
in Gretna, Louisiana. He testified that he is
responsible for the receipt, testing, and reporting of all
the drug test results performed at Alere. See HCD 1.
He has extensive experience in drug programs and
testing and is knowledgeable in the Department of
Health and Human Services’ Mandatory Guidelines for
Federal Workplace Drug Testing Programs (HHS
Mandatory Guidelines). See id.; see also IAF, Tab 5;
Subtab 4J at 75-79.
Dr. Green is responsible for all the training at
Alere. He is familiar with 49 C.F.R. Part 40, which
contains the DOT’ s guidelines covering the testing of
private employers under the jurisdiction of the DOT.
He testified that 49 C.F.R. Part 40 does not apply to
federal employees. However, the HHS Mandatory
Guidelines are applicable to government employees.
See HCD 1; see also, IAF, Tab 19, Exhibit 3.
Dr. Green testified that pursuant to the HHS
Mandatory Guidelines, when a collection is
administered, the sample is split and placed into 2
separate vials, called “Bottle A” and “Bottle B.” The
bottles are then packaged in a plastic bag with an
“external” custody and control form (in this case the
CCF), after which it is sent to Alere for testing, which
is what happened here.
Alere, in turn, received and processed the specimen
bottles, although Bottle B was never opened (which is
the normal process). The extra bottle, Bottle B, was
stored in a freezer and remained intact (without
removing the seal), until such time as the donor or the
Medical Review Officer (MRO) requested that it be sent
18a
to another, independent or secondary laboratory. See
HCDl.
Dr. Green testified that the specimen identification
number on the CCF involved here matched the
identification number on the specimen bottles and the
appellant’s initials were written on the security strips
for each of the specimen bottles. Karen Carter,
Accessioner at Alere (who was trained under his
direction), received and processed the appellant’s
Bottle A when it was received at the laboratory. He
testified that Ms. Carter was responsible for reviewing
the CCF and the security strips on the vials to ensure
they were intact, which they were. See HCDl; see also
IAF, Tab 5, Subtab 4J at 5. Thereafter, Ms. Carter
placed the appellant’s sample in a batch, which also
contained a blind sample and open controls, to ensure
the laboratory’s test results were accurate. Certified
Technicians then reviewed the CCF again, as well as
the laboratory’s internal chain of custody form, and in
the case of a positive test result, retrieved the original
Bottle A to obtain more of the specimen in order to
conduct a second, or “confirmatory” test, with the use
of a gas chromatography detector. Finally, George
Dorsey (the certifying scientist in this case), reviewed
the results again. Dr. Green testified that he also
reviewed the information himself. See HCD 1.
As to whether the proper procedures were followed
in rendering the positive test result, the parties
stipulated that the Site Coordinator followed all the
Standard Operating Procedures. See IAF, Tab 19,
stipulation # 13. There is also no dispute that after
receiving the appellant’s March 30, 2012 urine
19a
specimen in Bottle A, proper procedures were followed
by Alere, in accordance with the requirements and
procedures of the HHS Mandatory Guidelines and the
DOT Order 3910.lD, when it tested and processed his
Bottle A urine specimen. See id., stipulation # 16; see
also id., Exhibit 3; Tab 5, Subtab 4Z. The parties
stipulated that Alere employees involved with testing
the appellant’s March 30, 2012 urine specimen were
appropriately trained and certified. See id., Tab 19,
stipulation # 17.
The parties also do not dispute that the
Departmental Medical Review Officer (DMRO) is
qualified in accordance with HHS criteria and the HHS
Mandatory Guidelines. See id., stipulation # 18. They
also stipulated that FMRO Lester is and was qualified
in accordance with HHS criteria and the HHS
Mandatory Guidelines at all relevant times. See id.,
stipulation # 19. The parties stipulated further that Dr.
Dominick Zito is a FMRO who is and was qualified in
accordance with HHS criteria and the HHS Mandatory
Guidelines at all relevant times. See IAF, Tab 19,
stipulation # 20. They also stipulated that the FMROs
involved in the appellant’s matter complied with the
requirements and procedures of DOT Order 3910.lD.
See id., stipulation # 21.
Moreover, the parties stipulated that proper
procedures were followed by Medtox Laboratories, Inc.,
in the testing and processing of the appellant’s March
30, 2012 urine specimen in Bottle B after receiving his
March 30, 2012 urine split specimen in Bottle B, in
accordance with the requirements and procedures of
the HHS Mandatory Guidelines and DOT Order
20a
3910.lD. See id., stipulation # 22. Finally, the parties
agreed that employees of Medtox Laboratories, Inc.,
who were involved in testing the appellant’s March 30,
2012 urine specimen, were appropriately trained and
certified. See id., stipulation # 23.
Ultimately, Dr. Green testified that the Alere test
results for the appellant’s March 30, 2012 drug test
were a positive finding for cocaine metabolites at 165
ng/mL. See HCD 1. He testified that pursuant to the
HHS Mandatory Guidelines, the cut off concentration
is an administrative cut-off, below which would be
deemed a negative finding. However, any sample
containing drugs above the administrative cut-off is
deemed a positive result. See id.; see also IAF, Tab 19,
Exhibit 3 at 7188013. Here, for the initial test
concentration level, 150 ng/mL is enough. For the
confirmatory cut-off test, the amount is required to be
100 ng/mL. Dr. Green testified that there is nothing
that mimics cocaine metabolites which could have
resulted in a false positive. Based on the above, I find
that the agency established by preponderant evidence
that the appellant tested positive for drugs.
Accordingly, I find that the charge on which his
removal is based is SUSTAINED.
13
References to page numbers on the HHS Mandatory
Guidelines are made to the number listed on the top, left or
right-hand side, of the pages rather than to any other page
number listed.
21a
Affirmative Defenses
The appellant raised 314 affirmative defenses
related to harmful procedural error and denials of due
process. An appellant bears the burden of proof to
establish his affirmative defenses. 5 C.F.R. §
1201.56(a)(2)(iii) (2015).
Harmful Procedural Error
Under 5 U.S.C. § 770l(c)(2)(A), the Board may not
sustain an agency’s decision regarding an adverse
action taken against an employee with appeal rights to
the Board, even if the decision is supported by a
preponderance of the evidence, if the employee
establishes, by preponderant evidence, see 5 C.F.R. §
14
In fact, the appellant raised a total of 5 affirmative
defenses, 2 of which have already been resolved and will not be
addressed herein. First, the appellant sought to have the instant
matter vacated, arguing that the agency had breached the terms
of a settlement agreement which required the agency to
reinstate him by, among other things, providing the appellant
with his Thrift Savings Plan benefits. See IAF, Tabs 16; 26. That
issue has since been resolved by the full Board and is no longer
at issue here. See Grimsrud v. Department of Transportation,
MSPB Docket No. NY-0752-13-0073-C-l (Order, May 15, 2015).
In its Order, the Board indicated as follows: “The appellant has
not identified a basis for vacating a subsequent adverse action
because of an agency’s noncompliance with a settlement
agreement entered into in a previous appeal. Thus, we find no
basis to grant the appellant’s request.” Id. Second, the
appellant’s claim that his due process rights were violated by
virtue of the fact that the agency had discarded his specimen
was resolved during the recorded prehearing conference on
November 4, 2014. See IAF, Tab 26.
22a
1201.56(a)(2)(iii), harmful error in the application of
the agency’s procedures in arriving at such decision.
See Ray v. Department of the Army, 97 M.S.P.R. 101,
¶ 12 (2004 ). However, harmful error under section
7701( c)(2)(A) cannot be presumed; an agency error is
harmful only where the record shows that the
procedural error was likely to have caused the agency
to reach a conclusion different from the one it would
have reached in the absence or cure of the error. Id.,
citing Stephen v. Department of the Air Force, 47
M.S.P.R. 672, 681, 685 (1991).
The appellant failed to meet his burden of proof that
Stephen Malone’s alleged failure to follow DOT
procedures in administering the March 30, 2012 urine
test constituted harmful procedural error.
The appellant challenged the steps utilized by
Stephen Malone (the specimen collector who
administered his urine test on March 30, 2012),
asserting that he was not properly trained to
administer DOT collections. He claimed that for all his
prior drug and alcohol tests, the collector prepared the
CCFs in his presence, which Mr. Malone failed to do
here. He also asserted that for any of his prior drug
tests, each of the 5 copies that make up the CCF were
identical to one another because they were created at
the same time. See HCD3.
Here, the parties do not dispute that the copies of
the CCF that were created when the appellant’s
specimen was collected on March 30, 2012 are not
identical to one another. On “copy 2” of the CCF, which
is meant to be a carbon copy, “6:15” is written in
original ink under step 4, “time collected.” See HCDl at
23a
4:15-4:45. In addition, on that same copy, under step 4,
the box corresponding to “p.m.” was checked off in
original ink. The parties also stipulated that step 5 of
“copy 2,” in its entirety, was in original ink - the donor’s
signature and printed name, evening telephone
number, date, and date of birth. HCDl at 4:25-5:15.
Since “copy l” does not have an area under which to
complete “step 5,” that copy was different from copy 2,
although this is the case with all CCFs, as will be
discussed in more detail below.
The record also shows, and the agency does not
dispute, that “copy 5” (the donor copy of the March 30,
2012 test), did not contain anything in the “time
collected” box, while the other copies did contain such
an entry. See HCD 1 at 5:10-6:20. In addition, the
appellant asserted that the handwriting in the “time
collected” box of “copy l” is different from the
handwriting in that same box of “copy 2” (the Medical
Review Officer copy) and “copy 3” (the collector copy).
Moreover, the appellant claimed that the location of
“6:15” in the “time collected” box in “copy 3” is different
than what is on the other copies. Compare IAF, Tab 16,
Exhibit A, copy 1 with copy 2, 3, 4, and 5. Because
there is no dispute that the various copies of the CCF
are not identical to one another (and a review of them
shows that they are not), I find that the appellant has
shown by preponderant evidence that the original ink
appearing on some of the copies proves that the CCF
copies were detached from one another before Mr.
Malone entered “6:15" and “p.m.” in the “time collected”
box.
24a
In addition to the above, the appellant challenged
the collection process by indicating that Mr. Malone:
failed to ask for or check his identification at the start
of the collection; pre-filled portions of the CCF; did not
directly observe the collection; did not secure the water
source at the toilet; failed to ensure that the water in
the toilet and the tank had bluing agent in them; and,
unwrapped or broke the seal on the specimen bottles
outside of the appellant’s presence and before the
appellant had handed Mr. Malone the collection cup.
See HCD3; see also IAF, Tab 5, Subtab 4D at 21, ¶ 22.
The question, however, is whether there “errors”
(either individually or collectively), constituted
“harmful procedural errors” that likely caused the
agency to reach a conclusion different from one it would
have reached in the absence or cure of the error.
Intertwined in this question are the questions of
whether Mr. Malone was properly trained to perform
the appellant’s collection and, whether the chain of
custody as to the appellant’s March 30, 2012 urine test
was broken.
Mr. Malone’s Training
In support of his defense in this regard, the
appellant called Joseph Reilly, a consultant, trainer,
and operator in the alcohol and drug testing business
since 1993, to testify on his behalf. See HCD4. Mr.
Reilly is a third party administrator who coordinates
drug and alcohol testing programs for employers, court
systems and local and state government entities. He
became a trainer for urine specimen collections in 2001,
at which time he became a founding member of the
Drug and Alcohol Testing Industry Association
25a
(DATIA). See HCD4. He has served in various
capacities for DA TIA, having recently been appointed
to the Board of Directors there.
Mr. Reilly testified that DATIA has a nationwide
training program for urine specimen collectors and was
founded to provide standards of excellence for the drug
testing industry, to preserve the integrity and security
of the specimens, and to ensure that the collection
processes are fair and consistent throughout the United
States. He is a certified professional collector, a
certified professional collector trainer (authorized to
train others), a regional professional collector trainer
(authorized to train trainers on a regional basis), and
1 of only 2 master certified professional trainers for
DATIA. In his consulting capacity, he advises both
private and government employers on how to operate
drug testing programs and institute drug-free
workplace policies. See HCD4.
Mr. Reilly testified that a portion of the training he
provides is in the area of HHS collections. However, the
primary focus of DATIA’ s collection program is to train
collectors to administer regulated collections rather
than non-regulated collections. Regulated collections
are those authorized by HHS and DOT.
Consequently, collectors trained by DATIA are those
who administer collections on individuals employed by
and subject to drug and alcohol testing programs of the
federal government. Anyone who is certified by DA TIA
as a collector is not only required to meet the DOT and
HHS requirements, he must also be re-tested and
re-trained on an annual basis to remain certified. See
HCD4.
26a
Mr. Reilly testified that he is familiar with the
HHS Mandatory Guidelines in light of the fact that
they regulate drug testing and apply to both the DOTregulated programs and, the non-regulated programs.
He testified that a collector who is not familiar with the
HHS Mandatory Guidelines and/or the Urine Specimen
Collection Handbook for Federal Agency Workplace
Drug Testing Programs (Urine Specimen Collection
Handbook) has not been trained properly and is not
qualified to be a collector or, to administer HHS
collections. According to Mr. Reilly, requirement
numbers 1 and 2 of the qualification standards in the
HHS Mandatory Guidelines are that the collector must
know these documents, have read them, and
understand them. Here, he testified that because Mr.
Malone had not read the HHS Mandatory Guidelines
and/or the Urine Specimen Collection Handbook, he
opined that he was not qualified to perform DOT
collections and his collection on March 30, 2012 was
invalid. See HCD4.
On the other hand, the agency called Stephen
Malone to testify on its behalf. Mr. Malone testified
that he is a certified Urine Specimen Collection
Technician who contracts with Examination
Management Services, Inc., (EMSI) - a company that
conducts drug and alcohol testing for the FAA. See
HCD2. I note that the record contains a certificate of
achievement dated February 22, 2008 showing that Mr.
Malone satisfied EMSI’ s requirements for the Collector
Certification Program. See IAF, Tab 19, Exhibit 9.
Mr. Malone testified that he was trained to
administer general collections rather than collections
27a
specifically for HHS. EMSI requires him to be
retrained for drug screening every 2 years. He testified
that EMSI’s training does not go “step-by-step” over the
HHS procedures; rather, it covers DOT and non-DOT
collection procedures, including regulations, scenarios,
and solutions to issues that arise during the collection
process. Mr. Malone was familiar with what HHS
stands for and testified that it is the authority that
oversees the FAA. Although he could not explain why
the CCF has boxes corresponding with both “FAA” and
“HHS” as the testing authority, id., Exhibit 8, step 1,
he testified that collectors are instructed to check
“HHS” when the donor is a FAA employee. Finally, Mr.
Malone testified that he was not familiar with the
Urine Specimen Collection Handbook or the HHS
Mandatory Guidelines. However, he explained in detail
the exact steps he follows when performing a collection.
See HCD2.
Randy Shaffer, Manager of Quality Assurance and
Training for Forensic Drug and Alcohol Testing, LLC,
also provided testimony on the agency’s behalf. He
testified that he has extensive experience working as
an independent consultant with DOT’s Department of
Drug and Alcohol since 2004. In this capacity, he
reviewed the DOT’s policy and did some writing for the
agency in relation to the operating agencies under the
DOT’ s authority. He also reviewed the policy as it
applies to the FAA. In addition, he has extensive
experience in developing federal drug and alcohol
programs, among other drug-related services. See
HCD2.
28a
In his capacity as Manager of Quality Assurance
and Training for Forensic Drug and Alcohol Testing,
Mr. Shaffer oversees the quality assurance program as
it relates to DOT’s contract, managing collectors and
Medical Review Officers. He watches over the provider
network and tests all federal employees under that
contract. He testified that there are 2 programs that
fall under the DOT – the internal and external
programs. Here, the internal program applies since
that is the program that provides drug and alcohol
testing to DOT federal employees, including the
appellant, whose position falls under it. 49 C.F.R. Part
40, on the other hand, is not at issue here. See HCD2.
Mr. Shaffer testified that all federal agencies are
subject to the HHS Mandatory Guidelines, see IAF,
Tab 19, Exhibit 3, which require each agency to develop
its own policy as it pertains to its drug and alcohol
program. Here, DOT developed DOT Order 3910.lD to
satisfy the HHS Mandatory Guidelines requirement.
See HCD2; see also IAF, Tab 5, Subtab 4Z.
His testimony revealed that his company
subcontracts with EMSI, who Mr. Malone works for.
Mr. Malone testified that all the collectors hired by
Forensic Drug and Alcohol Testing are trained and
tested to become collectors under 49 C.F.R. Part 40.
According to Mr. Shaffer, as of March 30, 2012, Mr.
Malone was current in his collector training since
training is required every 5 years15.
15
Mr. Reilly corroborated Mr. Shaffer’s testimony that under
both the HHS Mandatory Guidelines and DOT regulations, a
(continued...)
29a
According to Mr. Shaffer, he himself is qualified to
perform collections under the HHS Mandatory
Guidelines and is also a trainer who teaches internal
DOT policy and federal agency collection practices
under the HHS Mandatory Guidelines. He testified
that he provides supplemental training to those
collectors who test federal employees, as opposed to
those who fall under 49 C.F.R. Part 40. See HDC2.
Mr. Shaffer testified that Mr. Malone is trained in:
DOT Order 3910.lD; the Drug and Alcohol-Free
Departmental Workplace Drug and Alcohol Testing
Guide (Drug Testing Guide); and the Urine Specimen
Collection Handbook. He testified that the Drug
Testing Guide applies to specimen collections of
ATCSs. Mr. Shaffer also testified that most collectors
do not actually remember any of the titles of these
documents since they are not required to memorize the
titles. However, he testified that collectors are trained
in what is required during the collection process
pursuant to the guidance and know what to do,
although he would not be surprised if Mr. Malone did
not know the titles. See HCD2. Finally, he testified
that not being aware of the titles of the guidance does
not, in and of itself, mean that a collector is not
properly trained.
Resolution of the conflicting testimony summarized
above requires an administrative judge to make
credibility determinations after having had an
15
(...continued)
collector is required to obtain collection training every 5 years.
See HCD4.
30a
opportunity to hear all the testimony, reviewing all the
evidence, and observing the demeanor or all the parties
and witnesses involved. See Brulotte v. U.S. Postal
Service, 44 M.S.P.R. 283, 287 (1990); Hillen v.
Department of the Army, 35 M.S.P.R. 453 (1987). Some
of the factors to be considered in assessing the
credibility of a witness are: (1) The witness’s character;
(2) any prior inconsistent statement by the witness; (3)
the witness’s bias, or lack of bias; (4) the contradiction
of the witness’s version of events by other evidence or
its consistency with other evidence; (5) the inherent
improbability of the witness ‘ s version of events; (6) the
witness ‘ s opportunity and capacity to observe the
event or act in question; and (7) the witness’s
demeanor. See Hosler v. Veterans Administration, 42
M.S.P.R. 265, 267 (1989); Hillen, at 458. Based on
these factors, I find that Mr. Malone’s and Mr.
Shaffer’s testimony is more credible than Mr. Reilly’s.
First, I note that during cross-examination, when
asked to explain where in the HHS Mandatory
Guidelines it states that collectors must “read” the
HHS Mandatory Guidelines to become certified
collectors, Mr. Reilly admitted that “reading” the HHS
Mandatory Guidelines is not a requirement. It only
requires “being knowledgeable about” the guidelines
and “any other guidance provided by the agency’s
drug-free program.” See HCD4; see also IAF, Tab 19,
Exhibit 3 at 71882, Section 4.3. Ultimately, Mr. Reilly
agreed that if a trainer, such as EMSI, reviewed and
covered the HHS Mandatory Guidelines during
training, collectors attending that training would “be
knowledgeable about” the HHS Mandatory Guidelines,
rendering them “trained collectors.” See HCD4.
31a
Second, despite having admitted that receiving
training in the HHS Mandatory Guidelines without
actually “reading” them could render a collector
“qualified,” Mr. Reilly subsequently contradicted his
testimony by indicating that “reading” the HHS
Mandatory Guidelines was a requirement. After being
shown the following “Summary of Public Comments
and the HHS Response,” Mr. Reilly was asked whether
this explains why he believes that the HHS Mandatory
Guidelines do not require a collector to read them:
Section 4.3 describes the requirements
for an individual to be a collector for a
Federal agency. Seven comm enters
disagreed with requiring collectors to
read and understand the Guidelines and
felt this should be limited to the sections
pertaining to the collection of specimens.
The Department agrees and has revised
the policy in Section 4.3(a) to reflect that
a collector must be knowledgeable of the
collection procedure described in the
Guidelines. Four commenters suggested
that there should be standardized
collector training requirements for all
collectors. The Department has revised
Section 4.3 to provide more details on the
requirements for collector training and
the documentation requirements.
IAF, Tab 19, Exhibit 3 at 71862, Subpart D-Collectors.
In response, Mr. Reilly testified as follows:
No. This is the preamble and was written
way back when and the document that
32a
HHS produced later on in time on
October 1, 2010, which is the Specimen
Collection Handbook, clearly says that to
qualify as a collector for a federal agency
program, an individual must read and
understand the HHS mandatory
guidelines.
HCD4. However, when asked whether he was an
expert on the HHS Mandatory Guidelines, Mr. Reilly
testified that he was not “but [he] can read.” Id. He
then acknowledged that despite the fact the HHS
Mandatory Guidelines were “written way back when,’‘
they are still in effect. He also did not dispute that the
HHS Mandatory Guidelines is controlling law and
triumphs the Urine Specimen Collection Handbook
even though the handbook was written after the HHS
Mandatory Guidelines were. See HCD4.
Third, Mr. Reilly testified that when DATIA
conducts training, it provides its students with copies
of the HHS Mandatory Guidelines, the Urine Specimen
Collection Handbook, and a copy of 49 C.F.R. Part 40,
which they must read and understand. However, he
also described the Urine Specimen Collection
Handbook as “user-friendly” and “in plain English” for
collectors. He then testified that the HHS Mandatory
Guidelines cover a lot more than just the collection
process, are written in more of a “Federal Register type language,” and cover the rules and regulations
that apply to the laboratory process and the MRO
process. Next, he conceded that when he provides
training outside of DA TIA for collectors seeking to
obtain ‘’minimum qualifications,” he only provides
33a
them with the Urine Specimen Collection Handbook.
See HCD4. Finally, in light of the fact that Mr. Reilly
acknowledged that he is not familiar with the training
that EMSI provides to its collectors, I am not
persuaded that he could form an opinion as to whether
Mr. Malone was qualified to administer specimen
collections. Consequently, based on the above, I find
that the appellant failed to prove by preponderant
evidence that Mr. Malone was not properly trained or,
that he was not qualified to perform the specimen
collection on March 30, 2012.
Procedures Mr. Malone Utilized for the Appellant’s
Specimen Collection
As to the question of whether DOT procedures were
followed on March 30, 2012, Mr. Malone testified that
he does not follow the same exact procedure each and
every time. He testified that although he cannot
specifically recall the March 30, 2012 collection, he
generally follows the same order. See HCD2.
First, he shows the donor some donor kits from
which to choose. See IAF, Tab 2716. Second, he removes
16
Although I previously admitted a sample donor kit into the
record during Dr. Green’s testimony on November 7, 2012, see
IAF, Tab 27, the Board’s Judges’ Handbook, Chapter 10, ii
14.g.(3), indicates that “except under extraordinary
circumstances, physical objects should not be received into
evidence.” Since ii 14.g.(3) of the Judge’s Handbook requires an
alternative method of documenting the evidence (such as
photographs), the Board’s support staff has photographed the
donor kit for the record. Those photographs have been entered
into the record, replacing the sample kit, under Tab 27. The
(continued...)
34a
the plastic seal from around the kit. If the donor wishes
to remove it, he allows the donor to do so. Third, he
opens the kit and requests that the donor check it to
ensure it contains 2 vials, a collection cup with a
temperature strip on it, and a bag with absorbent
material in it, all of which need to be intact. Fourth, he
and the donor proceed to the bathroom. Fifth, he asks
the donor to wash his hands to ensure the specimen is
not contaminated with anything on the donor’s hands,
after which he asks the donor to unseal the collection
cup that was in the kit. Sixth, because this was an
“observed” collection17, he proceeds to the urinal with
the donor and watches him void his urine into the
collection cup. See HCD2.
He testified that in observed collections, the donor
must remove his coat, lift his shirt, and lower his pants
before urinating into the cup. Seventh, after watching
the donor void into a cup, Mr. Malone takes the cup
from him, shows him the temperature on the specimen
bottle, and checks the box on the CCF form (showing
that the urine specimen was between 90 and 100
degrees). Alternatively Mr. Malone sometimes checks
the box corresponding to the temperature after he has
signed the form, at which time he also enters a time
and shows the donor the security strips from the CCF,
16
(...continued)
actual donor kit was returned to the agency representative. See
IAF, Tab 38.
17
Mr. Malone testified that the test he administered on
March 30, 2012 was a “followup” test, although he did not know
why this was a “follow-up.” See HDC2.
35a
which is located on the top copy of the CCF, or copy 1.
Eighth, Mr. Malone then retrieves the vials from the
kit, unseals them in the donor’s presence and tells him
to observe him transferring the specimen from the
collection cup into each of the vials (Bottles A and B).
Mr. Malone testified that he makes this statement each
and every time he performs a collection because it is
important that the donor observe this process. Ninth,
the donor and Mr. Malone wash their hands, after
which Mr. Malone hands the kit with the 2 vials in it to
the donor, who then carries the kit back to the room
where they can sit down and complete the information
on the CCF. Tenth, after they have returned to an area
where they can sit, Mr. Malone retrieves the 2 vials
from the kit and generally puts them down on the table
or on the bag that is meant to transport the 2 vials to
the laboratory (laboratory bag). He testified that at this
point, he also puts the CCF on the table so it can be
completed. Eleventh, Mr. Malone completes the CCF,
reviews it to ensure it is complete and signs it, after
which he shows the donor the security strips affixed to
the bottom of the CCF so that the donor can ensure the
specimen identification number on them match the
specimen identification number located on the top of
the CCF. Twelfth, after the donor confirms that the
numbers match, Mr. Malone peels the security strips
off the CCF, places them across Bottle A, then Bottle B,
from left to right side of the vial, going over the lid, and
crimps the strips. Thirteenth, he has the donor initial
36a
and date the security strips, which are tamper-evident,
over both vials18. See HCD2.
Mr. Malone testified that sometimes, he removes
the security strips from the CCF after he has showed
copy 1 (the laboratory copy) to the donor, after which
he hands the donor copy 2 so he can fill out step 5,
which can only be accessed once copy 1 is detached or
flipped over the remaining copies. While the donor is
completing step 5 on copy 2, Mr. Malone proceeds to
remove the security strips from copy 1 and secures
them over the vials. He testified that under these
circumstances, he always ensures that he is in close
proximity to the donor, the donor has already
confirmed that the specimen identification number on
the security strips is the same as the number on the
CCF, and the donor has already initialed the vials. See
HCD2.
Fourteenth, Mr. Malone places the 2 vials into the
side of the plastic bag that contains the absorbent
material in it. Fifteenth, he rips copy 1 off the CCF,
folds it, and places it into the other section of the bag
that the vials went into. Finally, Mr. Malone seals the
bag containing the CCF and the vials, places it inside
the kit, and asks the donor to complete step 5 of the
CCF, which as indicated above, sometimes happens
earlier in the process. See HCD2.
18
Mr. Malone also testified that the specimen identification
number on the vials ensures that the specimens in each of the
bottles belong to the donor specified on the CCF. Once the
security strip is placed on the vials, it is impossible to remove it
outside the donor’s presence without showing signs of
tampering. See HCD2.
37a
According to Mr. Malone, the processes of placing
the vials into the kit and the donor’s completion of step
5 of copy 2 can happen simultaneously because once he
removes copy 1 of the CCF, he immediately hands the
donor copy 2, which is attached to the remaining
copies, after which he proceeds to place the vials and
copy 1 of the CCF into the kit. At the same time that
the donor is signing and printing his name, as well as
entering the date of collection, his date of birth and
telephone number on copy 2, Mr. Malone is ensuring
that the specimens and laboratory copy are in the kit.
See HCD2.
On the other hand, Mr. Reilly testified that the
Urine Specimen Collection Handbook was published by
the HHS and takes the collection portion of the HHS
Mandatory Guidelines and puts it into an instructional
format so collectors can follow specific steps to allow
them to ensure that their collections are in accordance
with the HHS Mandatory Guidelines. According to Mr.
Reilly, the Urine Specimen Collection Handbook lists
30 steps, each of which have to be performed in
chronological order during each and every collection.
He testified that if a collector fails to administer a
collection in the order indicated by the Urine Specimen
Collection Handbook, he is not following regulations
and is more apt to make a mistake. Finally, he testified
that if a collector fails to follow the required order and
completes the CCF out of order, a laboratory that
performs the drug test would never know what
happened during the collection or, whether the
specimen was outside the donor’s line of sight.
Consequently, the chain of custody could have been
broken and nobody would ever know it. Mr. Reilly
38a
defined “chain of custody” as the process beginning
with a specimen being collected to the point of testing.
He testified that this process includes the completion
of the CCF, which must stay with the specimen until it
is tested, and, that there is “break” when a part of the
form is not properly filled out or something else is done
wrong. See HCD4.
Mr. Reilly testified that after reviewing Mr.
Malone’s deposition and evidence related to the
collection at issue here, he concluded that Mr. Malone
had failed to follow the required procedure as
evidenced by the following: 1) he failed to check the
appellant’s identification; 2) it did not appear that he
went over the procedures with the appellant before
administering the collection or, that he showed the
back of the CCF to him; 3) after the specimen was
collected, but before the security strips were placed on
the specimen bottles, Mr. Malone allowed the appellant
to wash his hands; 4) he may have skipped around on
filling out the form; and 5) Mr. Malone printed his
name on the form first and failed follow the
chronological steps that were required pursuant to the
Urine Specimen Collection Handbook. See HCD4.
Requirement to Provide Identification
Having considered all of the evidence and
testimony, I disagree with the appellant that Mr.
Malone was required to ask him for identification prior
to the initiation of the March 30, 2012 collection. First,
Mr. Malone and the appellant both testified that they
recognized each other by sight in light of the fact that
between June 8, 2011 and March 30, 2012, Mr. Malone
had tested the appellant on more than 20 occasions.
39a
See HCD2; HCD3; see also IAF, Tab 5, Subtab 4D,
Exhibit C. Second, the appellant acknowledged that
Mr. Malone would greet him when he saw him. Third,
Mr. Malone testified that FAA employees generally
wear their identification badges around their necks.
Although the appellant denied wearing it around his
neck, he testified that he was wearing it on his belt
loop around his waist on March 30, 2012. Fourth, Mr.
Shaffer testified that with a follow-up test, if the
identity of a donor is not in question, a collector does
not have to ask for identification, especially in a
situation like the appellant’s, where he was subject to
repeated follow-up collections by the same collector.
Fifth, Mr. Reilly’s testimony that failing to ask for a
donor’s identification harms a donor because it
deprives him of a collection that complies with the
regulations was implausible. To the contrary, Mr.
Shaffer testified that the actual purpose of requiring a
donor to provide identification is to protect the agency
‘ s rights, not the donor’s, because it ensures that the
person providing a specimen is actually the person who
he claims to be. Otherwise, a donor could send someone
in his place to provide a specimen. Sixth, Mr. Reilly
admitted that not requiring identification from the
donor does not break the chain of custody. For all of
these reasons, I find that the appellant has not shown
by preponderant evidence that Mr. Malone’s failure to
ask him for identification prior to administering the
collection on March 30, 2012 constituted harmful
procedural error that likely caused the agency to reach
a conclusion different from one it would have reached
in the absence or cure of that error.
40a
Pre-filling Steps 1 and 2 of the CCF
As to the appellant’s claim that Mr. Malone had
pre-filled step 1 and part of step 2 of the CCF before
administering the collection on March 30, 2012, for the
reasons that follow, I find that these alleged “errors” do
not constitute harmful procedural errors or, a break the
chain of custody. Here, the appellant testified that
when he arrived for the specimen collection on March
30, 2012, Mr. Malone has already set up the necessary
items to administer the test in a conference room. He
testified that he was accompanied by his union
representative and Mr. Malone presented him with
various collection kits from which to choose. Mr.
Malone asked him to ensure that whatever kit he
selected was completely intact and covered with a
plastic seal. Thereafter, he chose a kit, opened it, and
verified that it contained the collection cup, the
specimen bottles, and the leak-absorbent pouch. See
HCD3.
The appellant testified that he noticed that the
CCF on the conference table was partially pre-filled.
Specifically, in step 1, the following information was in
there: the computer-generated information listing the
FAA as the employer; the MRO information; the
number of the facility charged with performing the
testing; the testing authority and reason for the test
(follow-up); the type of test to be administered; and, the
collector’s telephone and fax numbers. In addition, the
appellant testified that in step 2, “split” had been
checked off as to the type of specimen to be collected,
although the temperature box had not yet been
marked. Finally, he testified that under step 4, Mr.
41a
Malone had already printed his name, entered the
date, and listed “Federal Express” as the entity to
whom the specimen bottles would be released to. See
HCD3.
Mr. Malone did not dispute having pre-filled step 1
of the CCF. He testified that generally, he may
complete that step before arriving at the facility or,
upon his arrival, while he waits for the donor to arrive.
Mr. Malone testified that step 1 of the CCF consists of
the employer’ s information, the collector’s telephone
and facsimile numbers, as well as the test type and
authority under which it is being administered. See
HCD2; see also IAF, Tab 19, Exhibit 8, Box ## ‘s A-G.
He also testified that generally, he does not date the
form until such time as he is actually at the collection
site and/or the collection is about to start. However,
although he sometimes checks the boxes that
correspond to the type of collection (whether split,
single and/or observed), he never completes the portion
of step 2 which requires him to indicate that the
temperature of the specimen was between 90 and 100
degrees until after the collection is completed. See
HCD2.
Based on the above testimony, I find that the
appellant has shown by preponderant evidence that
Mr. Malone did in fact pre-fill step 1 of the CCF and
the boxes corresponding with a “split” collection in step
2. I note that Mr. Reilly testified that a collector is
prohibited from entering anything under steps 1 and 2
of the CCF without the donor being present. He
testified that the collector must also first: show the
donor the back of the form (which describes the steps);
42a
give him an opportunity to read it; and ask him
whether he has any questions. Only after this happens
is the collector supposed to fill out steps 1 and 2. He
testified that anything short of this was a failure to
follow proper DOT procedures and, was problematic.
See HCD4. However, for the reasons that follow, I find
that these actions did not constitute harmful
procedural error.
First,
Mr.
Reilly’s
testimony
during
cross-examination conflicted with the evidence in the
record and his prior testimony. For instance, when
asked during cross-examination whether he was aware
that the employer’s information in step 1 of the CCF is
already pre-printed on the form, Mr. Reilly
contradicted himself, indicating at that point that
having the em ploy er’ s information already preprinted
in step 1 was not problematic. See HCD4.
Second, I was not persuaded by Mr. Reilly’s
testimony that it was a violation of DOT policy for the
collector to write in “observed collection” in the
“remarks” portion of step 2 (after he had already
checked the box corresponding to an “observed”
collection). See HCD4. I note that the appellant had not
even alleged that Mr. Malone had checked the box
corresponding to “observed” collection before he arrived
at the testing site, or, that there was a problem with
his having written in “observed collection” in the
“remarks” portion of step 2.
When asked during cross-examination whether Mr.
Malone writing in “observed collection” after he
checked the box corresponding to same causes the
appellant any harm, Mr. Reilly testified as follows: “I
43a
don’t know if it does or not. If the collector isn’t doing
his job properly and he isn’t qualified to do his job on
an HHS collection, that harms an employee and an
agency.” HCD4. However, Mr. Reilly later
acknowledged that writing in “observed collection”
after also checking the corresponding box for
“observed” collections does not render a collector
“unqualified.” See HCD4.
On the other hand, Mr. Shaffer testified that
having dealt with the following guidance on a daily
basis since 2004, there was nothing in them that
prohibited a collector from pre-filling step 1 of the CCF
before meeting with a donor to provide a specimen:
DOT Order 3910.lD; the HHS Mandatory Guidelines;
the Urine Specimen Collection Handbook. He also
testified that under step 2, a collector can pre-fill the
boxes corresponding to the particular type of specimen
and whether an “observed” collection had been
administered. See HCD2.
Based on the above, I am not persuaded by Mr.
Reilly’s testimony that the potential of making a
mistake requires collectors to refrain from pre-filling
steps 1 and 2 of the CCF until such time as they are in
the presence of the donor or, that pre-filling the
information under these steps invalidates the test and
potentially breaks the chain of custody19. Moreover, I
disagree with Mr. Reilly’s claim that Mr. Malone was
required to show the appellant the back of the CCF and
19
The issue of whether the collector pre-filling his name and
dating the form under step 4 results in harmful procedural error
will be addressed herein later on in this initial decision.
44a
ask him whether he had any questions prior to filling
in step 1. As stated above, there is no dispute that the
appellant had previously been subjected to upwards of
20 collections, all of which were with the same
collector. There was no need to have the appellant
review the back of the form for the 21st time in order to
ensure he understood the process before moving to the
next step of the process. This was a routine follow-up
collection. The appellant was familiar with the process
and Mr. Reilly admitted that pre-filling step 1 and
portions of step 2 did not break the chain of custody.
Consequently, I find that the appellant failed to meet
his burden of proof that Mr. Malone’s actions in this
regard constituted harmful procedural error that likely
caused the agency to reach a conclusion different from
one it would have reached in the absence or cure of that
error.
Observing the Collection
As to the question of whether Mr. Malone’s failure
to observe the collection on March 30, 2012 constituted
harmful procedural error, the appellant testified to the
following facts. After he selected his collection kit and
reviewed the CCF, he and Mr. Malone proceeded to the
bathroom, which was approximately 20-30 feet away
from the conference room. He described the bathroom
as being small, with 2 stalls, a couple of sinks, and a
mirror with a ledge in front of it. He testified that when
they arrived at the bathroom, Mr. Malone instructed
him to wash his hands, which he did. See HCD3.
Next, Mr. Malone took the collection cup from the
kit, peeled off the plastic cover and handed it to him,
after which the appellant entered the stall to void his
45a
urine. He testified that during the entire time he was
in the stall, Mr. Malone was outside and the door was
closed and locked. The appellant testified that Mr.
Malone was probably outside washing his hands
because he heard the water running. He testified that
when he was finished voiding into the cup, he flushed
the toilet, came out of the stall, and handed the
collection cup to Mr. Malone. See HCD3.
On the other hand, Mr. Malone testified that
despite not recalling the March 30, 2012 collection, he
checked the box on the CCF that corresponds to the
fact that the collection was observed. He also wrote in
“observed collection” in the “remarks” section of step 2.
See HCD2; see also IAF, Tab 16, Exhibit A.
Consequently, he had no reason to believe he failed to
observe this collection. Mr. Golden also testified that
because he had known Mr. Malone for many years,
during which time he had never had any issues with
his collections, he found the appellant’s claim that he
had failed to observe him voiding into the cup to lack
any merit, especially in light of the fact that Mr.
Malone checked the box on the CCF indicating the
collection was observed. For the reasons that follow, I
find that the appellant’s claim lacks merit.
First, the appellant would have me believe that the
only way the specimen at issue could have tested
positive for cocaine was if Mr. Malone tampered with it
or spiked it. For me to do so, I would have to find that
a situation arose during which time Mr. Malone could
have placed cocaine metabolites into the sample. In
support of this claim, the appellant alleged that while
he was in the stall, Mr. Malone opened Bottles A and
46a
B, which were already sitting on the ledge open, in
front of the mirror when he exited the bathroom.
However, during cross-examination, the appellant
acknowledged that he did not see anything in the
Bottles A or B when Mr. Malone transferred the urine
from the collection cup into these bottles. He also
testified that for each of the 20 or so collections, he
never had a problem with Mr. Malone’s collections.
Additionally, he did not articulate a reason for why Mr.
Malone would have tampered with his specimen.
Finally, the appellant testified that Mr. Malone would
generally open the specimen bottles while he was in
stall and these bottles would usually be open on the
ledge below the mirror before he exited the stall. See
HCD3. Even assuming, without finding, that Mr.
Malone did in fact fail to observe the March 30, 2012
collection, it defies logic that he did so on March 30,
2012 for the sole purpose of spiking the specimen when,
according to the appellant’s own testimony, for all of
Mr. Malone’s prior collections, he generally placed
these bottles on the mirror ledge outside of the stall
and there was never a problem with this in the past.
Second, Mr. Shaffer and Mr. Reilly both testified
that direct observation collections are authorized under
limited circumstances: when it appears that the donor
may attempt to adulterate a specimen; has failed a
drug or alcohol test in the past; or, is under a
rehabilitation program pursuant to government
regulations that mandate random testing. See HCD2;
HCD4. In other words, observed collections are
required when there is a risk that the donor may do
something to a specimen resulting in a negative finding
47a
for drugs. In the absence of an observed collection,
there is a higher likelihood that the donor may provide
a clean drug test. Observed collections are therefore not
designed to have the opposite effect. It therefore defies
logic that Mr. Malone’s failure to observe the collection,
if true, harmed the appellant in any way or, that it
resulted in a positive finding for cocaine metabolites.
For these reasons, I find that the appellant has failed
to show by preponderant evidence that Mr. Malone
failed to observe him void into a collection cup or, that
such a failure constituted harmful procedural error.
Allowing the Appellant to Wash his Hands Before
Affixing the Security Strips on Bottles A and B
As to the question of whether Mr. Malone allowed
the appellant to wash his hands after the specimen was
collected but before he affixed the security strips on the
specimen bottles, the appellant testified that Mr.
Malone did not stop him from washing his hands after
he voided his specimen into the collection cup. He
testified that during this time, he lost sight of the vials,
which potentially broke the chain of custody. See
HCD3.
According to the appellant, after exiting the stall,
he handed Mr. Malone the collection cup. Next, Mr.
Malone checked the temperature strip to verify that
the specimen was within the required range, and told
the appellant to ensure he did not lose sight of the
specimen until the seals were affixed. The appellant
then watched Mr. Malone pour the specimen into the 2
specimen bottles, after which he closed the caps and
the appellant proceeded to wash his hands. Mr. Malone
then placed the bottles into the collection kit and
48a
handed the box to the appellant, at which point the
started to walk back to the conference room. Once in
the conference room, Mr. Malone showed him the CCF
with the security strips on the bottom of it, after which
he asked him to verify that the identification number
on the security strips matched the number on top of the
CCF, which the appellant did. Thereafter, Mr. Malone
affixed the security strips onto the specimen bottles
and put them next to the appellant so he could initial
them. Finally, Mr. Malone dated them. See HCD3.
Mr. Malone testified that normally, after the donor
hands him the specimen cup, he shows them Bottles A
and B and asks them to watch him transfer the urine
into them because it is important to not lose sight of
the specimen. According to him, donors do not usually
ask to wash their hands until after he has transferred
the specimen into the bottles. However, there are times
when they proceed to wash their hands immediately.
See HCD2.
Mr. Malone testified that when this happens, he
generally waits until they have finished washing their
hands before transferring the urine into the specimen
bottles because he also needs to ensure that they see
the temperature on the collection cup before he
transfers the urine into the bottles. Mr. Malone
acknowledged that he generally does not affix the
security strips on the bottles in the bathroom because
he and the donor generally have to go back to a
conference room, which is where he usually keeps the
CCF. However, the specimen is always transferred into
the bottles before proceeding to the conference room.
See HCD2.
49a
Based on the above, I find that the appellant
proved by preponderant evidence that Mr. Malone
allowed him to wash his hands before affixing the
security strips on the bottles. However, I nonetheless
find that this did not rise to the level of harmful
procedural error. First, Mr. Shaffer’s testimony
corroborated the appellant’s version that there are
circumstances requiring certain deviations from the
standard process. Mr. Shaffer acknowledged that the
order of steps in the Urine Specimen Collection
Handbook ought to be followed by the collectors. See
HCD2; see also IAF, Tab 19, Exhibit 4 at 14-23,
Chapter 7, ¶ C. However, he testified that he would not
be surprised if Mr. Malone does not follow these exact
steps each and every time because situations arise
sometimes that end up altering the steps.
For instance, he opined that when a donor insists
on washing his hands right after voiding into the
collection cup, the steps change since a collector would
have no choice but to allow the donor to wash his hands
first. Nonetheless, he testified that this does not affect
employee protections because the collector would
simply wait before proceeding to the next step. In fact,
Mr. Shaffer testified that transferring the urine from
the collection cup into the bottles normally occurs at
the bathroom vanity and donors sometimes start to
wash their hands when the collector begins to pour the
urine into the specimen bottles. He also testified that
it does not break the chain of custody when a donor
washes his hands after voiding into the collection cup
but before the security strips have been placed on the
bottles. See HCD2.
50a
Second, I am not persuaded that allowing the
appellant to wash his hands before affixing the security
strips on the bottles resulted in any harm to the
appellant. When Mr. Reilly was asked whether it would
break the chain of custody to place the bottles above
the sink with the specimen in them, until such time as
the donor was done washing his hands, he testified as
follows: “Well, if there is line of sight, there is a line of
sight, but in my experience, somebody washing their
hands isn’t looking at the box.” HCD4.
Irrespective of this testimony, the appellant failed
to prove by preponderant evidence that simply because
Mr. Malone allowed him to wash his hands before
affixing the security strips on the bottles resulted in a
break of the chain of custody or, that it likely caused
the agency to reach a conclusion different from one it
would have reached in the absence or cure of this error.
Here, the only time during which the appellant
suggests that he was not watching the specimen bottles
was when he was washing his hands. However, he did
not dispute that they were in the box, with the caps
closed, directly in front of him, on the ledge of the
mirror that sits directly above the sink. This, in my
mind, does not amount to having the specimen “outside
his line of sight” simply because he was washing his
hands. Consequently, I find that he has failed to meet
his burden of proof that the agency engaged in harmful
procedural error in this regard.
Different Copies of CCF – “Time Collected” Entry
Missing from Donor Copy
As to the question of whether the original ink on
various copies of the CCF evince a “break” in the chain
51a
of custody, the appellant testified that when Mr.
Malone inserted copy 1 of the CCF into the bag that
accompanies a specimen to the laboratory, it did not
have “6:15” written on it as the “time collected.” He
testified that since he witnessed Mr. Malone separating
the copies of the CCF immediately before placing copy
1 of the form into the laboratory bag, he saw that that
copy, as well as copy 5 (the donor copy), did not have a
“time collected” entry on them. However, when copy 1
of the CCF was sent to the laboratory, “6:15” and “p.m.”
had been written on that copy, which leads him to
believe that the chain of custody was broken.
In support of the appellant’s claim, Mr. Reilly
testified that these errors call into question the legal
defensibility of the CCF because the collector must
have gone back into the bag to fill in the “time
collected” on copy 1 after the appellant had already left
the premises. He testified that despite the fact a
laboratory test that specimen, it had no way of knowing
whether the collector completed the form in the donor’s
presence, which is against regulations. According to
Mr. Reilly, once a donor leaves the collection site, a
collector should never make any changes to the CCF.
See HCD4.
Mr. Malone could not explain why copy 2 of the
CCF had “6:15 p.m.” written in original ink on it. Nor
did he know why copy 5 (the donor copy), was missing
a “time collected” entry. He testified that when a
collector inadvertently leaves something off the form,
the laboratory asks for him to explain why certain
information was missing, which that collector would be
required to provide. He testified that here, he may have
52a
entered the time on the CCF after the appellant had
already been provided with his copy of it. See HCD4.
He did not recall being asked to provide an affidavit
to the laboratory for leaving off the “time collected”
entry. Mr. Malone denied having done any of the
following: adulterate or open the vials; pour anything
into them before he poured the urine into them; or,
open the sealed specimens after the appellant had left.
Finally, he testified that whenever he discovers that he
inadvertently left something “critical” off the CCF after
a donor has left the premises (and if the specimen is
not in question), he calls the contact person at EMSI
for guidance. See HCD2.
The agency called Dr. Green to support its claim
that even if Mr. Malone had failed to enter the time
collected onto the CCF until after the appellant had left
the premises, this did not constitute harmful
procedural error. Dr. Green testified that there are
various kinds of flaws provided for under the HHS
Mandatory Guidelines, only some of which render a
test invalid. See HCD 1. He testified that there are
“fatal flaws” (invalidating a test) and “recoverable
flaws” (which can be corrected through an affidavit
provided by the appellant), neither of which occurred
here. See id.; see also, IAF, Exhibit 3 at 71904, § 15.1.
Dr. Green testified that fatal flaws rendering a
specimen “untestable” include the following: a donor
identification mismatch number on the CCF and the
specimen bottles; broken seals on the specimen bottles;
or, a missing collector’s signature. Here, he testified
that the specimen identification number on the
appellant’s CCF matched the specimen identification
53a
number on the specimen samples. See HCDl; see also
IAF, Tab 5, Subtab 4J at 5 and 10.
Dr. Green testified that the HHS Mandatory
Guidelines allow for “nonreason” flaws, or flaws
deemed to be “insignificant” by HHS - flaws that would
not affect the overall testing and collection process of
the specimens. Here, as defined by Section l 5.3(a)(l4)
of the C .F .R., a missing time of collection from the
external chain of custody form is considered an
insignificant flaw, meaning it would not invalidate the
test, require the laboratory to reject it, or, require an
affidavit to correct it. See HCD 1. Likewise, Mr. Shaffer
testified that the Urine Specimen Collection Handbook
provides for “insignificant” flaws, which are omissions
and discrepancies on the CCF which do not cause the
laboratory to reject it. See HCD2; see also IAF, Tab 19,
Exhibit 4, Chapter 9. Both Mr. Shaffer and Mr. Reilly
testified that leaving a collection of time off the CCF is
an insignificant error. See HCD2; HCD4.
Finally, Dr. Green testified that after reviewing the
litigation package, he found nothing which would have
led him to believe that there was a problem with the
collection or testing processes. Finally, Dr. Green
testified that the Xerox copies of the seals appeared to
be normal, there were no fatal flaws and, the receipt of
the testing and reporting of the results appeared to be
normal. See HCDl; see also IAF, Tab 5, Subtab 4J.
For these reasons, I find that although the
appellant’s copy of the CCF did not contain the time
collected entry while other copies of it did, the
appellant has failed to show how this “error”
constituted harmful procedural error. The fact of the
54a
matter is that the collector evidently added the time he
collected the specimen on copies 1, 2, 3, and 4, of the
CCF after ripping the donor’s copy from the back of the
form off. Even assuming that Mr. Malone entered the
time of collection on the remaining copies outside the
donor’s presence, there is nothing to suggest that at the
same time he did this, he also adulterated the
specimen.
Moreover, I am not persuaded by Mr. Reilly’s
testimony that Mr. Malone had to complete a
memorandum for record to accompany any change he
made to the form or, that he should have entered a
comment in the “remarks” portion of the CCF. I note
that during cross-examination, Mr. Reilly contradicted
his prior testimony by acknowledging that a
memorandum for record was actually not required to
document the fact that an entry under “time collected”
had been left off other portions of the form. See HCD4.
I therefore find that the appellant has failed to meet
his burden of proof that such an error constituted
harmful procedural error.
Failure to Add Bluing Agent or to Secure the Water
As to the question of whether the agency engaged
in harmful procedural error by virtue of the fact that
Mr. Malone failed to secure the water source or, to add
bluing agent to the water, I note that both Mr. Malone
and Mr. Shaffer testified that in “observed” collections,
there is no need to place bluing agent into the toilet or,
to secure the water because this is only done in
collections that are not observed. In other words, they
testified that bluing agent and securing a water source
ensures that a donor does not scoop water from these
55a
sources to dilute their urine. They explained that with
an observed collection, because the collector is always
present watching the donor, a donor cannot scoop
water from the toilet or the sink without the collector
noticing. They testified that consequently, in observed
collection, collectors are not required to follow all of the
standard procedures that are required in unobserved
collections. See HCD2.
On the other hand, although Mr. Reilly conceded
that the bluing agent and securing the water are steps
created to protect an agency’s rights, he testified that
they also ensure a donor’s rights are safeguarded by
virtue of the fact that they ensure an agency does not
adulterate a specimen. For the reasons that follow, I
find that Mr. Reilly’s testimony is this regard lacks any
credence. First, he testified that an agency can
adulterate a specimen even in an observed collection,
although he failed to explain how. Second, when asked
whether it is a moot point to add bluing agent to the
water and to secure water sources during an observed
collection (where the donor certifies that he did not
adulterate his specimen and the collector observed him
voiding his specimen into the cup), Mr. Reilly,
surprisingly, testified that because there is nothing in
the Urine Specimen Collection Handbook or, in the
HHS Mandatory Guidelines rendering these steps
unnecessary during an observed collection, they are
required. Third, his justification for adding bluing
agent to the water and securing the water source each
and every single time a collection is administered
(regardless of whether the collection is observed or not)
was that once a collector deviates from a procedure, he
will do so again, making it easier for him to make a
56a
mistake. See HCD4. Consequently, I find that the
appellant failed to meet his burden of proof that Mr.
Malone’s failure to add bluing agent to the water or, to
secure the water source, resulted in harmful procedural
error.
Breaking Laboratory Bag Seal
As to the appellant’s claim that Mr. Malone had to
break the seal of the laboratory bag in order to add the
time collected onto copy 1 of the CCF (which rendered
the test invalid because the chain of custody had been
broken), I disagree. First, I note that Mr. Malone
acknowledged that in the past, “on very rare occasions,”
he had opened a collection bag after sealing it in order
to insert a CCF which he had inadvertently left out. He
testified that generally, when this happens, he opens a
new kit in the donor’s presence, after which he then
replaces the unsealed bag with a new one. He testified
that once opened, the bag cannot be resealed without
showing signs that it was opened. According to Mr.
Malone, he did not recall opening the laboratory bag
here. See HCD2. Finally, he testified that he always
seals the bag in the donor’s presence and once a donor
leaves, he never opens it after it has been sealed.
Second, the appellant’s testimony corroborates Mr.
Malone’s claim that he did not open the laboratory bag
outside his presence. The appellant testified that the
only time he recalled Mr. Malone adding something to
the CCF after having inadvertently forgotten to do so
was on 1 or 2 other occasions when Mr. Malone had
already separated the CCF copies but before he had
placed copy 1 in the laboratory bag. In these situations,
Mr. Malone asked the appellant to return the
57a
remaining copies to him so he could put them back
together, had aligned them, and had written in what he
had forgotten on copy 1. He recalled that after Mr.
Malone had corrected the error, he handed the
appellant the donor copy and proceeded to enter copy 1
into the laboratory bag. See HDC3.
Third, Dr. Green, Mr. Malone, Mr. Shaffer, and Mr.
Reilly all testified that the tamper-evident seals which
are placed over specimen bottles are actually
tamper-evident and even if the appellant had broken
the seal on the laboratory bag, he could not have
removed the security strips from the specimen bottles
without showing signs of tampering. See HCDl; HCD2;
HCD4.
Fourth, even assuming that Mr. Malone failed to
seal the laboratory bag in front of the appellant or, that
he opened the bag outside the donor’s presence, the
testimony supports the agency’s position that a
collector is not required to seal the laboratory bag or
require the donor to watch him until he has done so.
Mr. Shaffer testified that pursuant to Chapter 7 of the
Urine Specimen Collection Handbook, “Collection
Procedure,” ¶ C.22, once the specimen bottles have
been sealed with the tamper-evident strips, the
collector is required to inform the donor that he is no
longer required to continue to observe the collection
process and, that he is free to wash his hands. See
HCD2; see also IAF, Tab 19, Exhibit 4 at 21.
Mr. Shaffer and Mr. Reilly both testified that at
step 22, which is after the collector affixes the security
strips onto the specimen bottles, the collector informs
the donor that it is no longer necessary to continue to
58a
watch the specimens. See HCD2; HCD2. Where their
testimony conflicts is that Mr. Shaffer testified that the
donor is not required to watch the collector place the
specimens or the CCF into the laboratory bag, since
those steps (steps 25-28) occur 3 steps after the donor
has already been informed that it is no longer
necessary to continue to observe the process. See
HCD2.
In effect, Mr. Shaffer testified that the donor can
leave the collection sight immediately after step 26,
which is when the collector provides copy 5 to the donor
and after the security strips have been affixed on the
bottles and the donor has filled out his portion of the
CCF. However, he also acknowledged that it is not
until step 27 when the collector is supposed to advise
the donor that he can leave. See HCD2. On the other
hand, Mr. Reilly testified that the collector is required
to put the required items in the laboratory bag in front
of the donor, after which the collector hands the donor
copy 5 of the CCF. It is not until this point that the
collection is complete and the donor is free to go. See
HCD4.
However, Mr. Reilly acknowledged that “the
primary chain of custody” items are actually the CCF
and the sealed specimen bottles. He testified that once
these bottles and the CCF are placed into the
laboratory bag and it is sealed, it should not be
tampered with. Despite the above, he testified that
even if the bag was opened and the laboratory receives
it that way, “as long as those specimen bottles are still
sealed, they would test the specimen ... so the bag itself
is not the chain of custody.” See HCD4.
59a
During cross-examination, Mr. Reilly conceded that
step 22 (which occurs before step 25), is when the
collector tells the donor that he is no longer required to
continue to observe him and may wash his hands.
Consequently, Mr. Reilly did not dispute that since step
22 comes before step 25 and because the HHS
Mandatory Guidelines do not indicate that the donor
must observe the collector place the sealed specimens
and the CCF in the laboratory bag, once the specimen
bottles are sealed and initialed, the donor is no longer
required to keep a line of sight of the laboratory bag.
HCD4.
Finally, Mr. Malone and Mr. Shaffer both testified
that the sole purpose of the bag is to keep copy 1 of the
CCF together with the corresponding specimen bottles
during the transport of the specimen. See HCD2; see
also IAF, Tab 19, Exhibit 4 at 14, Chapter 7, ¶ B.6 and
B.7. They testified that a donor is not required to sign
or initial the bag when it is sealed. Mr. Shaffer testified
that there is no requirement for the donor to observe
the collector placing the specimen and copy 1 of the
CCF into the bag or, to watch him place the bag into
the box in preparation for shipment to the laboratory.
He testified that a collector is permitted to open a
laboratory bag containing the specimen and the CCF
outside of the donor’s presence in order to add the time
since doing so has absolutely no effect on employee
protections. Finally, Mr. Shaffer testified that there is
nothing in any of the guidance prohibiting the collector
from retrieving the CCF to make a correction on it. See
HCD2.
60a
After considering all the testimony and evidence, I
find that the appellant has proved by preponderant
evidence that since copy 5 does not contain a “time
collected” entry on it, he did not observe Mr. Malone
place the completed copy 1 of the CCF into the
laboratory bag. However, I find that the appellant
either failed to see Mr. Malone enter the time on copy
1 of the CCF before placing it into the laboratory bag
and sealing or, after the appellant left the premises but
before Mr. Malone had sealed the bag, Mr. Malone
realized that he had inadvertently failed to add the
time on copy 1. He then removed it from the laboratory
copy to add the time, after which he sealed it outside
the appellant’s presence.
Neither of these scenarios leads me to find that the
agency engaged in harmful procedural error since the
specimen was left intact. The record is devoid of any
evidence that the security strips were tampered and
Mr. Shaffer testified that neither the HHS Mandatory
Guidelines nor the Urine Specimen Collection
Handbook require the laboratory bag to be sealed in
the presence of the donor.
In fact, when asked during cross-examination why
the Urine Specimen Collection Handbook refers to a
“tamper-resistant plastic bag” in one section, see
Exhibit 4 at 22, Chapter 7, ¶ C.28, Mr. Shaffer
provided credible testimony showing that other
portions of the handbook do not refer to it as “tamperresistant,” which seems to suggest that this reference
was an error. Finally, Mr. Shaffer testified that even in
situations where the seal on a laboratory bag is broken,
this does not affect the integrity of the collection
61a
process or employee protections. See HCD2. For all of
these reasons, I find that he appellant has failed to
meet his burden of proof that Mr. Malone’s actions here
constituted harmful procedural error.
Unsealing of the Empty Specimen Bottles Outside
the Appellant’s Presence
As to the question of whether Mr. Malone was
required to unwrap the shrink-wrapped specimen
bottles in front of the appellant before transferring the
urine from the collection cup to these bottles, Mr.
Shaffer testified that the HHS Mandatory Guidelines,
specifically Subpart H, § 8. 7(b ), does not indicate that
the collector is required to unwrap the specimen bottles
in the donor’s presence. See HCD2; see also IAF, Tab
19, Exhibit 3 at 71885. However, the Urine Specimen
Collection Handbook, Chapter 7, ¶ C.16, does indicate
that the collector is required to unwrap the sealed
specimen bottles in the presence of the donor. See
HCD2; see also IAF, Tab 19, Exhibit 4 at 20.
Here, although the appellant testified that he did
not observe Mr. Malone unwrap the specimen bottles
when they were removed from the kit, he also
acknowledged that he did not see anything in the vials
before the urine was transferred into them. The
appellant also testified that when he checked the
collection kit at the beginning of the collection process,
all of the items that were required were there and were
intact. I am not persuaded that Mr. Malone’s failure to
open the empty specimen vials in the donor’s presence
constituted an error or, that that error likely caused
the agency to reach a conclusion different from one it
would have reached in the absence of that error. I
62a
therefore find that the appellant failed to meet his
burden in this regard either.
Entering Mr. Malone’s Name on CCF (Step 4) Prior
to Completing Step 2
As stated above, the appellant testified that at the
beginning of the collection, before Mr. Malone had
completed step 2 (which requires him to check a box
corresponding to the fact that the temperature of the
specimen was within a certain range), Mr. Malone had
already completed step 4 (printed his name, entered
the date, and listed “Federal Express” as the entity to
whom the specimen bottles would be released to). See
HCD3. Although I note that Mr. Reilly testified that a
collector must always follow the order of steps as laid
out in the Urine Specimen Collection Handbook, he
also testified that he often sees collectors fill in step 4
before allowing the donor to complete step 5. Although
step 5 comes after step 4, the form does require the
donor to fill complete step 5 before the collector
completes step 4. See HCD4. However, Mr. Reilly’s
testimony demonstrates that collectors, not only Mr.
Malone, skip around and fail to follow the steps
chronologically each and every time. This, in and of
itself, does not result in a break in the chain of custody.
Mr. Reilly admitted that when a collector prints his
name on the CCF prior to the collection, but signs it
after affixing the tamper-evident seals on the specimen
bottles and dating them, but before the donor has
finished filling in step 5 on copy 2, does not affect the
specimen itself. See HCD4. Consequently, I find that
the appellant has failed to meet his burden of proof
that Mr. Malone’s failure to wait until the donor had
63a
completed his portion of the form before Mr. Malone
entered his name constitutes harmful procedural error.
Entering the “Time Collected” Directly onto
Copy 2
As to the issue of whether it constituted harmful
procedural error for Mr. Malone to write “6:15 p.m.”
directly in the “time collected” portion of copy 2 of the
CCF, I note that Mr. Malone did not dispute having
done so. He testified that although a donor generally
fills out copy 2, he sometimes enters the date and time
on that copy after he completes copy 1. He testified that
there have been times he notices he failed to enter a
time on copy 1. He acknowledged that rather than
returning copy 1 to the top of the remaining 4 copies,
he has written directly on copy 2 despite having
already completed copy 1. However, he testified that he
never does this outside the donor ‘ s presence and here,
he may have made a mistake by failing to enter the
time on copy 1, after which he entered it directly on
copy 2. However, Mr. Shaffer testified that despite the
fact that the Urine Specimen Collection Handbook
indicates that collectors should not make entries on
copy 2, doing so here did not have any effect on
employee protections. See HCD2; see also IAF, Tab 19,
Exhibit 4 at 9, Chapter 5, ¶ B, Step 3. I agree.
Here, the fact of the matter is that as previously
indicated above, Mr. Malone’s failure to enter the “time
collected” on the forms was merely an “administrative
error.” In light of this fact, I find that his decision to
enter the time directly on copy 2 was an attempt to
correct this error. However, this does not constitute a
64a
harmful procedural error. I find that the appellant has
therefore failed to meet his burden in this regard.
Affixing the Security Strips to Specimen Bottles
While the Donor Completed Copy 2
The appellant alleged that Mr. Malone was
required to affix the security strips on the specimen
bottles before signing the CCF and dating it. According
to him, because he handed copy 2 of the form to the
appellant at the same time that Mr. Malone was
sealing the bottles, he violated DOT collection
procedures.
During
cross-examination, Mr.
Malone
acknowledged that he sometimes signs the form before
affixing the security strips on the vials. He testified
that once he hands the donor the form to confirm that
the identification number on the security strips match
the identification number on the form, he
simultaneously begins the process of affixing the
security strips on the bottles (while the donor is still
reviewing the form), after which the donor initials the
security strips and fills out the form. He did not
dispute that there have been times when he has signed
the form before putting the security strips on the vials.
However, he testified that he also routinely affixes the
security strips on the vials before signing the form. See
HCD2.
The appellant did not dispute that these steps
occur simultaneously. He testified that after Mr.
Malone removed copy 1 of the CCF, he handed the
appellant copies 2-5 – at the same time that the
65a
appellant was initialing the specimen bottles and Mr.
Malone was placing copy 1 into the pouch. See HCD3.
Mr. Shaffer testified that did not see a problem
with the above. He testified that pursuant to the Urine
Specimen Collection Handbook, in between steps 17
(collector must transfer 45 mL of the donor ‘ s urine
from the collection cup into the specimen vials and
secure the lids in the donor’s presence) and 18 (collector
must place the tamper-evident security strips over the
caps of each of the bottles in the presence of the donor),
collectors should not fill out portions of the form.
However, in between these steps, a collector is
permitted to check the box on the CCF corresponding
to the fact that the temperature strip on the collection
cup reads between 90 and 100 degrees. As long as the
specimen bottles are still in the donor’s light of sight
before the collector affixes the security strips on the
vials, employee protections are safeguarded and
consequently, a collector may allow the donor to
complete copy 2 before (or at the same time) that the
collector affixes the security strips onto the bottles. See
HCD2.
Moreover, Mr. Shaffer testified that the HHS
Mandatory Guidelines do not specify when the forms
must be completed in relation to when the security
strips need to be affixed onto the specimen bottles.
Finally, he testified that donors ordinarily complete
step 5, copy 2, of the CCF at the same time that the
collector is affixing the security strips on the specimen
bottles because the collector has already advised the
donor to sign the form and watch him place the
security strips onto the specimen bottles at the same
66a
time. See HCD2. In light of the above, I find that the
appellant failed to meet his burden of proof that
affixing the security strips on the vials at the same
time that he was entering his information on copy 2 of
the CCF constitutes harmful procedural error. For all
the reasons discussed above, I find that the appellant
failed to prove that any of these errors, either
individually or collectively, constituted harmful
procedural error.
The appellant failed to meet his burden of proof that
his due process rights were violated when Mr. Golden
allegedly failed to consider his response to the proposal
to remove him.
In response to the appellant’s claim that the
deciding official did not consider his response to the
proposed action, Mr. Golden testified that he
considered each and every defense the appellant made
in response to the proposal. First, as to the appellant’s
argument that all of his prior drug tests had resulted
in negative findings, Mr. Golden testified that although
he considered this, it did not impact his decision
because all it takes is one positive test result to
warrant disciplinary action. See HCD4.
Second, he testified that he considered the
appellant’s claim that the donor copy was not filled in
while the other copies did have a “time collected” entry
on them. However, this did lead him to find that there
was a problem with the collection process. Rather, he
opined that a missing time on the CCF did not affect
the specimen itself since it was sealed in a bottle. As
for each of the other appellant’s arguments, the
67a
deciding official testified that he had considered them
as well. See HCD4.
For instance, he did not see a problem with the fact
that the collector had failed to check the appellant’s
identification because the appellant was in a follow-up
program and Mr. Malone knew who he was. He also
considered the appellant’s claim that portions of the
CCF were pre-filled when he arrived at the collection
site, although this did not affect the specimen. He
testified that although he considered the appellant’s
claim that Mr. Malone had unwrapped the vials outside
of his presence, this also did not persuade him because
he had no reason to believe that this had in fact
occurred or, that Mr. Malone would have adulterated
the specimen.
Third, Mr. Golden testified that although he
considered the appellant’s claim that he tested negative
for cocaine metabolites on the day following the
positive drug test, this did not persuade him because
all it takes is one positive drug test. Mr. Golden
testified that after considering all of the above, he
decided to remove the appellant. He testified that he
did so only after taking all of the evidence the appellant
had provided in support of his response. See HCD4; see
also IAF, Tab 5, Subtab 4B.
In addition, although the appellant alleged that
Mr. Golden had predetermined his decision to remove
him even before he was provided with a copy of the
appellant’s written response to the proposed action, I
find that Mr. Golden’s testimony to the effect that he
was confused at the deposition with regard to the terms
“proposed action” and “decision to remove letter” was
68a
credible. He testified that he did not decide to remove
the appellant until after he considered his response.
See HCD4.
Both during his cross-examination and during his
re-direct examination, it was clear that Mr. Golden had
been confused at the deposition when he answered that
at the time he issued the proposal, he already knew he
was going to remove the appellant. In fact, during his
re-direct examination, Mr. Golden remembered that he
had clarified during his prior deposition that he was
distracted and confused and knew he had to consider
the appellant’s response prior to rendering a decision.
Mr. Golden also testified that during his deposition,
he was confused with the copies as presented because
the donor copy appeared to be different based on the
scale of it. While it was the same CCF, the scale of the
photocopy was different, which confused. Having
considered Mr. Golden’s testimony, I find that the
appellant failed to prove that his due process rights
were violated by virtue of the fact that Mr. Golden
allegedly failed to consider his response.
The appellant failed to meet his burden of proof that
his due process rights were violated when Mr. Golden
allegedly considered new and material evidence.
It is well-settled that an appellant has the right to
notice of the charges against him and an opportunity to
present his side of the story before being removed.
Cleveland Board of Education v. Loudermill, 470 U.S.
532, 546 (1985); Wilson v. Department of Homeland
Security, 120 M.S.P.R. 686, ¶ 7 (2014 ); Arrington v.
Department of the Navy, 117 M.S.P.R. 301, ¶ 16 (2012).
69a
Because of that right, a deciding official may not
consider new and material information that he
obtained ex parte -- either in connection with the
charges themselves or the penalty. See Ward v. US.
Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011);
Stone v. Federal Deposit Insurance Corporation, 179
F.3d 1368, 1377 (Fed. Cir. 1999).
The Board has held that even information that the
deciding official knows from personal experience is
considered ex parte if the appellant was not informed
that it would be taken into account. Wilson, 120
M.S.P.R. 686, ¶ 9; Lopes v. Department of the Navy,
116 M.S.P.R. 470, ¶ 10 (2011). The Board has explained
that when a deciding official considers such
information, the employee is no longer on notice of
portions of the evidence relied on by the agency in
imposing the penalty. Wilson, 120 M.S.P.R. 686, ¶ 9;
Lopes, 116 M.S.P.R. 470, ¶ 10.
In determining if a deciding official’s consideration
of information obtained ex parte violates due process,
the question is whether the information is “so
substantial and so likely to cause prejudice that no
employee can fairly be required to be subjected to a
deprivation of property under such circumstances.”
Stone, 179 F.3d at 1377. Relevant factors include: (1)
whether the ex parte communication merely introduces
cumulative information or new information; (2)
whether the employee knew of the information and had
a chance to respond to it; and (3) whether the ex parte
communications were of the type likely to result in
undue pressure upon the deciding official to rule in a
particular manner. Id. A due process violation requires
70a
automatic reversal regardless of whether the error
likely affected the agency’s decision. Id.
In this regard, the appellant alleged that Mr.
Golden considered information regarding the rate that
cocaine metabolizes, as well as information about the
administration of his March 30, 2012 drug test without
first providing the appellant an opportunity to respond
to it. However, he failed to elicit any testimony from
Mr. Golden that would lead one to believe that this was
in fact the case.
Although Mr. Golden acknowledged that he became
aware of the fact that the appellant had self-referred
into a rehabilitation program specific to an
alcohol-related incident following an accident, he did
not know whether the appellant was a driver during
the accident, nor did he have any knowledge of any
drugs being involved with that accident. See HCD4.
Mr. Golden testified that although he had
contacted Victor Patino, Human Relations Specialist,
to seek clarification from him as to the rehabilitation
program, when asked during cross-examination what
was discussed with Mr. Patino, Mr. Golden testified
that it centered around follow-up testing and whether
he could offer the appellant another rehabilitation
program even though the appellant had already been
extended one after the accident involving the alcohol.
When asked whether he considered the discussions he
had with Mr. Patino in rendering his decision, Mr.
Golden testified that he did not. On the contrary, he
testified that the discussions with Mr. Patino simply
related to the proposal to remove the appellant.
71a
In addition, he testified that when Mr. Patino
provided him with a draft proposal to remove letter
referencing a rehabilitation program, see IAF, Tab 5,
Subtab 4R, he could not remember if he asked Mr.
Patino to include a copy of the TRP as part of the
documents relied upon in support of his proposal.
However, the TRP was given to the appellant well
before Mr. Golden had issued his decision to remove
him. See HCD4.
As to question of whether Mr. Golden considered
his own alcohol and drug training he had received in
the past to determine that Mr. Malone’s errors were
“minor,” Mr. Golden testified that he did not. When
asked if he took his own personal knowledge of the fact
that a person could metabolize cocaine quickly
resulting in a negative drug test on the day following
the positive drug test, Mr. Golden testified that he had
not. See HCD4.
Finally, although Mr. Golden acknowledged having
been aware of the agency’s prior attempt to remove the
appellant from his position, he testified that this also
had no impact on his decision to remove him in 2014.
After considering all of the above, I find that the
appellant has failed to prove that his due process rights
were violated. Here, the deciding official denied
considering information that was not previously
provided to the appellant and I find that there is no
evidence to suggest that he considered information
likely to have caused prejudice to the appellant.
72a
The agency established that a disciplinary action
promotes the efficiency of the service.
An adverse action promotes the efficiency of the
service, satisfying the nexus requirement, where the
grounds for the action relate either to the employee’s
ability to accomplish his duties satisfactorily or to some
other legitimate government interest. See Fontes v.
Department of Transportation, 51 M.S.P.R. 655, 665
n.7 (1991). In this regard, Mr. Golden testified that the
New York Center manages air traffic in a “complex
portion of the northeast” and that the ATCS position is
a safety-related, or security-sensitive, position. Due to
the nature of the position, ATCSs are subject to drug
and alcohol testing because they are responsible for the
separation and safe and orderly flow of air traffic.
These employees are also exposed to security sensitive
information on a regular basis. See HCD4.
Mr. Golden testified that ATCSs are sometimes
responsible for the safety of the United States
President while he travels throughout the country. In
fact, the appellant also testified that he had been
involved in providing such support while working for
the FAA. See HCD4; HCD3. Mr. Golden testified that
in these situations, a facility like the New York Center
receives information directly from the White House and
is required to provide security support by managing
temporary flight restrictions while the President flies
through certain areas. In addition, the New York
Center has military support to ensure the protection of
our air space and the security of VIP movement. See
HCD4.
73a
Mr. Golden testified that if an ATCS is impaired
while performing his duties, it could result in the
following: degradation of the scanning scope (not seeing
radar targets or targets that are in close proximity to
the sector boundary); insufficient vectoring; insufficient
speed control; not fully understanding instructions
from another sector; not hearing coordinates from
another sector controller; and failing to provide a pilot
with current weather information. See HCD4.
According to Mr. Golden, these can result in loss of
separation for the flying public. For instance, when
separation has been lost and 2 aircraft are in close
proximity to one another, this can result in a mid-air
collision. In addition, if an ATCS is impaired, such
impairment can result in that ATCS ‘s failure to
respond to a critical situation or an emergency in flight,
a system failure, or a loss of communication or radar.
See HCD4.
Based on Mr. Golden ‘s testimony, I find that there
is a clear nexus between the efficiency of the service
and the appellant’s positive drug test in light of the fact
that ATCSs are required to be alert while on duty. As
explained by Mr. Golden, ATCSs are responsible for
ensuring the safety of the flying public. The appellant
had an enormous responsibility for the lives and
property of others. Thus, the Board has held that an
ATCS’s drug use, even if off-duty drug use, affects the
efficiency of the service. See Scott v. Department of
Transportation, 45 M.S.P.R. 639. 644 (1990).
74a
The agency proved by preponderant evidence that its
selected penalty was within the tolerable limits of
reasonableness.
“The penalty for employee misconduct 1s generally
left to the sound discretion of the agency.” Merchant v.
United States Postal Service, 52 M.S.P.R. 330, 333,
aff”d, 980 F .2d 745 (Fed. Cir. 1992) (Table). The Board
will disturb an agency’s penalty only where the agency
failed to weigh relevant factors or its judgment clearly
exceeded the limits of reasonableness. Hayes v.
Department of the Navy, 727 F.2d 1535, 1540 (Fed. Cir.
1984); Toth v. United States Postal Service, 76
M.S.P.R. 36, 39 (1997).
In Douglas, 5 M.S.P.R. 280, 305-306, the Board
enumerated several factors a deciding official must
consider, as applicable, in evaluating the disciplinary
penalty the agency imposed. The factors applicable to
the circumstances of this action are, the type of offense
the appellant committed, the appellant’s type of
employment, whether the appellant was on notice to
avoid the particular misconduct at issue, the
appellant’s past disciplinary record, his past work
record, his years of service, any mitigating
circumstances, whether his supervisors can trust him
to honestly perform his duties, his potential for
rehabilitation, and the effect of his conduct upon the
service. Id.
In considering the above, Chapter XI, “Drug and
Alcohol Prohibitions and Disciplinary Action” of DOT
Order 3910.lD, requires a removal of the offending
employee, although such an employee can opt to have
his discipline held in abeyance is he submits to
75a
rehabilitation in an EAP and FAA-approved and
monitored TRP as a self-referral. Here, the appellant
declined the agency’s offer for rehabilitation in an EAP
and FAA-approved and monitored TRP, after which he
was removed from his position.
As indicated above, Testing Designated Positions
are characterized as having critical safety or security
responsibilities related to the mission of the agency.
Job functions associated with these positions have a
direct and immediate impact on public health and
safety and the protection of life and property.
Consequently, they require the highest degree of trust
and confidence and are subject to both drug and alcohol
testing.
Mr. Golden testified that in this case, he believed
that a removal was warranted because the Table of
Penalties and DOT Order 3910 .1 D indicates that a
removal is the appropriate penalty in case of a positive
drug test for a ATCS in a TDP position. See HCD4. He
testified that even if there were no guidelines, if an
ATCS tests positive for drugs, this compromises that
trust that the flying public has in the FAA. Finally, Mr.
Golden testified that as an ATCS, the appellant was
responsible for the lives of many passengers in the
course of any given day.
I find that Mr. Golden considered relevant factors
in determining the appropriate penalty to impose for a
positive drug test and the decision to remove the
appellant is within the tolerable bounds of
reasonableness. Douglas, 5 M.S.P.R. 305-306. The
agency’s Table of Penalties lists a removal for a first
time offense of a positive drug test by a TDP employee.
76a
IAF, Tab 5, Subtab 4 Y at 11. I further find the
appellant’s removal is for such cause as will promote
the efficiency of the service. 5 U.S.C. § 7513.
DECISION
The agency’s removal action is AFFIRMED.
FOR THE BOARD:
/S/
Maria M. Dominguez
Administrative Judge
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APPENDIX C
NOTE: This disposition is nonprecedential.
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
_________
DOCKET NUMBER
NY-0752-14-0340-I-1
_________
JUSTIN GRIMSRUD,
Appellant,
v.
DEPARTMENT OF TRANSPORTATION,
_________
Agency.
DATE: JANUARY 6, 2017
_________
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
ORDER
The appellant has filed a petition for review of the
initial decision, which sustained his removal. The two
Board members cannot agree on the disposition of the
petition for review. Therefore, the initial decision now
78a
becomes the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of
Federal Regulations, section 1200.3(b) (5 C.F.R. §
1200.3(b)). This decision shall not be considered as
precedent by the Board in any other case. 5 C.F.R. §
1200.3(d).
79a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
_________
[Filed Aug. 31, 2018]
2017-1737
_________
JUSTIN GRIMSRUD,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
_________
Respondent.
Petition for review of the Merit Systems Protection
Board in No. NY-0752-14-0340-I-1.
_________
ON PETITION FOR PANEL REHEARING AND
REHEARING EN BANC
_________
JOHN SILVERFIELD, Naples, FL, filed a petition for
panel rehearing and rehearing en banc for petitioner.
DOMENIQUE GRACE KIRCHNER, Commercial
Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, filed a
response to the petition for respondent. Also
80a
represented by CHAD A. READLER, ROBERT E.
KIRSCHMAN, JR., ALLISON KIDD-MILLER.
Before PROST, Chief Judge, NEWMAN, LOURIE,
SCHALL,1 DYK, MOORE, O’MALLEY, REYNA,
WALLACH, TARANTO, CHEN, HUGHES, and
STOLL, Circuit Judges.
LOURIE, Circuit Judge, with whom CHEN, Circuit
Judge, joins, concurs in the denial of the petition for
rehearing en banc.
NEWMAN, Circuit Judge, with whom WALLACH,
Circuit Judge, joins, dissents from the denial of the
petition for rehearing en banc.
WALLACH, Circuit Judge, dissents from the denial
of the petition for rehearing en banc.
PER CURIAM.
ORDER
Petitioner Justin Grimsrud filed a petition for
rehearing and rehearing en banc. A response to the
petition was invited by the court and filed by
respondent Department of Transportation. The petition
was first referred as a petition for rehearing to the
panel that heard the appeal, and thereafter the petition
for rehearing en banc was referred to the circuit judges
who are in regular active service. A poll was requested,
taken, and failed.
1
Circuit Judge Schall participated only in the decision on the
petition for panel rehearing.
81a
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition for panel rehearing is denied.
(2) The petition for rehearing en banc is denied.
(3) The mandate of the court will issue on
September 7, 2018.
FOR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
Dated: August 31, 2018
82a
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
_________
2017-1737
_________
JUSTIN GRIMSRUD,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
_________
Respondent.
Petition for review of the Merit Systems Protection
Board in No. NY-0752-14-0340-I-1.
_________
LOURIE, Circuit Judge, with whom CHEN, Circuit
Judge, joins, concurring in the denial of the petition for
rehearing en banc.
I concur in the decision of the court not to rehear
this appeal en banc. The dissent suggests that we grant
rehearing to determine whether the Department of
Transportation (“DOT”) violated Justin Grimsrud’s due
process rights by not producing an aliquot of his urine
specimen to him for identity and cocaine testing.
Consideration of that question in this case, however,
does not meet the standard for en banc review because
it is not “necessary to secure or maintain the
uniformity of the court’s decisions,” and does not
83a
“involve[] a question of exceptional importance.” Fed.
R. App. P. 35(a).
Moreover, that Grimsrud did not raise this issue in
the petition for rehearing underscores the lack of
necessity of en banc review in this case. The full court
need not reconsider an unraised issue that does not
satisfy the standard for en banc review.
Grimsrud appealed from the Merit Systems
Protection Board’s (“MSPB”) decision sustaining his
removal as an Air Traffic Control Specialist following
a positive drug test. Prior to the events at issue in this
appeal, Grimsrud entered into an agency-approved and
monitored Treatment and Rehabilitation Plan for
alcohol abuse pursuant to which he was regularly
screened for alcohol and drug use. In accordance with
DOT Order 3910.1D and the Mandatory Guidelines for
Federal Workplace Drug Testing Programs, 73 Fed.
Reg. 71,858 (Nov. 25, 2008) (“HHS Mandatory
Guidelines”), Grimsrud’s urine was collected by a
trained collector and split into two bottles (A and B).
Following notification that Bottle A tested positive for
cocaine, Grimsrud asked that Bottle B be tested. Bottle
B was tested by a different independent laboratory and
also tested positive. DOT removed Grimsrud based on
the positive drug test results. On appeal to the MSPB,
the AJ sustained his removal following a hearing. The
AJ rejected his challenges based on alleged procedural
errors in the specimen collection process, negative drug
test results performed on specimens obtained at later
dates, and his polygraph test for lack of credibility.
That is the history of this case.
84a
I respectfully disagree with the dissent’s suggestion
that our precedent, MSPB precedent, and the Fifth
Circuit’s decision in Banks v. FAA, 687 F.2d 92 (5th
Cir. 1982), demonstrate Grimsrud’s entitlement to
additional testing of his urine specimen for drugs and
DNA. We have never held that due process requires
such testing. In sustaining the employee’s removal in
Meza v. Department of Homeland Security, 275 F.
App’x 987 (Fed. Cir. 2008), we noted that the AJ had
granted a motion to compel the agency to provide an
aliquot of the urine specimen for DNA testing, but the
propriety or necessity of the AJ’s grant of the motion
was not passed on by the panel. In Storm v.
Department of Army, while the MSPB recognized that
“an agency’s procedural error may constitute harmful
error when it effectively destroys, or precludes an
appellant from acquiring, the only available evidence
by which he can show that the agency likely would
have reached a different conclusion in the absence of its
error,” it did not find any such error had occurred. 64
M.S.P.R. 14 (1994) (citing Banks, 687 F.2d at 96). In
Ivery v. Department of Transportation, 96 M.S.P.R.
119 (2004), the MSPB did not sustain the employee’s
removal where the agency failed to follow the
prescribed split-specimen protocol. It is undisputed
that the agency followed that protocol in Grimsrud’s
case. Banks, which was decided prior to the
implementation of the split-specimen protocol, is
factually distinguishable, and subsequent decisions
demonstrate that no testing beyond that performed
was required here.
Assuming arguendo that we should apply Banks,
the DOT complied with its requirements in this case.
85a
In Banks, two air traffic controllers contested their
removal based on a single positive drug test conducted
by a private laboratory that had not preserved the
samples for retesting. The Fifth Circuit held that “due
process required an opportunity by the controllers to
test on their own behalf to evaluate the accuracy of the
government-sponsored tests.” 687 F.2d at 96.
In contrast, Grimsrud’s specimen was not
destroyed, and he availed himself of the agency’s
procedure permitting additional drug testing of the
specimen following a positive result. Grimsrud could
have selected any HHS certified laboratory to perform
the testing on Bottle B. See DOT Order 3910.1D, Chp.
VII, ¶ 8 (J.A. 504) (permitting “an employee with a
verified positive . . . test result” to “request[] that
another HHS certified laboratory be used, other than
the laboratory under contract to DOT for the purposes
[of] split-specimen analysis” to test Bottle B). The
parties stipulated that the laboratory personnel who
tested Bottles A and B were qualified and followed
proper procedures in testing and processing the
specimen. J.A. 12–13. Thus, Grimsrud had “an
opportunity . . . to test [the sample] on [his] own behalf
to evaluate the accuracy of the government-sponsored
tests.” Banks, 687 F.2d at 96. Due process does not
require unlimited testing, and Banks did not hold to
the contrary.
Moreover, subsequent case law counsels against
applying the reasoning in Banks to find a due process
violation here. In California v. Trombetta, the Supreme
Court held that due process “does not require that law
enforcement agencies preserve breath samples in order
86a
to introduce the results of breath-analysis tests at
trial” to prove the defendant was driving while
intoxicated. 467 U.S. 479, 491 (1984). The Court
explained that “[e]ven if one were to assume that the
Intoxilyzer results in this case were inaccurate and
that breath samples might therefore have been
exculpatory, it does not follow that respondents were
without alternative means of demonstrating their
innocence.” Id. at 490.
Similarly, Grimsrud had “alternative means of
demonstrating [his] innocence.” Id. He took advantage
of those means by presenting evidence and
cross-examining witnesses at the MSPB hearing,
including challenging the chain of custody in an
attempt to raise doubt as to whether the specimen was
his and “attempt[ing] to raise doubts in the mind of the
factfinder whether the test was properly administered.”
Id.; see also Trevino v. Dahm, 2 F.3d 829, 832 (8th Cir.
1993) (“As long as the defendant has an adequate
opportunity to impeach the reliability of a scientific
test, and the qualifications of the person administering
the test, due process is not implicated by a state’s good
faith failure to preserve a sample for independent
testing.”); United States v. Boyd, 961 F.2d 434, 437 (3d
Cir. 1992) (holding no due process violation based on
routine destruction of urine specimen prior to
defendant’s ability to independently test it where
defendant “had other means by which to challenge the
evidence”). The AJ’s rejection of Grimsrud’s
fact-specific challenges and credibility determinations
are not an appropriate subject for en banc review.
87a
Due process also does not require the agency to
make Grimsrud’s specimen available for DNA testing.
The relevant regulations, HHS Mandatory Guidelines,
and DOT drug testing procedures make clear that DNA
testing of DOT urine specimens is not permitted. 49
C.F.R. § 40.13(c) (“[A] laboratory is prohibited from
making a DOT urine specimen available for a DNA test
or other types of specimen identity testing.”);
Procedures for Transportation Workplace Drug and
Alcohol Testing Programs, 65 Fed. Reg. 79,462, 79,484
(Dec. 19, 2000) (“[T]he rule forbids laboratories and
other parties from making a DOT specimen available
for DNA testing.”); HHS Mandatory Guidelines, 73
Fed. Reg. at 71,861 (explaining that the guidelines
“prohibit DNA testing on a specimen”); see also
Swaters v. Dep’t of Transp., 826 F.3d 507, 512 (D.C.
Cir. 2016) (“The meaning of § 40.13(c) is clear on its
face: ‘a laboratory is prohibited from making a DOT
urine specimen available for a DNA test or other types
of specimen identity testing.’”).
DOT’s rationale for not a
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