Appendix — Watson v. Department of Transportation

Supreme Court brief1993

Ask Donna

What actually matters in this document.

Text

92-1963 = [res

No. ‘MBFICE OF THE CLERK

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1992

GERALD B. WATSON, JR.,

Petitioner,

Vv.

DEPARTMENT OF TRANSPORTATION,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Joel S. DeVore Ralph Fallon Cobb

Counsel of Record Luvaas, Cobb, Richards

Luvaas, Cobb, Richards & Fraser, P.C.

& Fraser, P.C. 777 High St., Suite 300

777 High-St., Suite 300 Eugene, OR 97401

Eugene, OR 97401 (503) 484-9292

(503) 484-9292 Of Counsel for Petitioner

Counsel for Petitioner

TABLE OF CONTENTS

Opinion of the Federal Circuit

(November 18, 1992) (Rich, J.)......... App-1

Dissenting Opinion (Newman, J.) ........ App-8

Concurring Opinion (Michel, J.) ........ App-17

Opinion of the Merit Systems Protection

ee CHEN Aa BOWE) Gk eee co eas App-22

Initial Decision (April 21, 1989)

eG SEs be ee a ee a App-43

Order Denying Rehearing Before

Federal Circuit (December 29, 1992) .... App-72

Judgment of the Federal Circuit

(Movemer 36, 1992) . 2. wt cc App-74

Department of Transportation

Order 3910.1, Comoter VI... ns App-76

First Stipulation of Facts (March 9, 1989) .. App-78

Declaration of Melissa J. Allen (excerpts)

i Se eA oa be etr App-83

Transcript of Hearing (March 9, 1989)

FRM kv Siw ks hE EROS he App-89

App-1

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

91-3558

GERALD B. WATSON, JR.,

Petitioner,

DEPARTMENT OF TRANSPORTATION,

Respondent.

DECIDED: November 18, 1992

Before RICH, NEWMAN, and MICHEL, Circuit

Judges.

RICH, Circuit Judge.

App-2

DECISION

Gerald B. Watson, Jr. (Watson) petitions for review

of the July 25, 1991 final decision of the Merit Systems

Protection Board (Board or full Board) in Docket No.

SE07S28910074, sustaining the Department of

Transportation’s (DOT’s or agency’s) removal of Watson

for refusing to submit to random drug testing in

accordance with Executive Order 12564, DOT Order

3910.1, and Federal Aviation Administration (FAA)

Order 3910.6. We affirm.

DISCUSSION

The full Board found the penalty of removal to be

warranted, and thus reversed the Administrative Judge’s

(AJ’s) mitigation of the removal to a suspension. The

Board further found that "[t]he record does not support

the administrative judge’s finding that the agency had

predetermined the penalty."

Watson’s primary argument before this court is that

the Board erred in not deferring to the AJ’s

determination that Donald Coones, the agency’s deciding

official, was not credible on the predetermination issue.

Specifically, the AJ found unconvincing Coones’

testimony that, although he felt constrained "to some

point" by the removal requirement of the agency’s drug

testing program, he still had discretion to select a lesser

App-3

penalty. Coones left the AJ "with the clear impression

that he had merely gone through the motions of decision-

making."

Absent issues of witness credibility and demeanor,

the full Board owes no special deference to fact findings

of the AJ; the Board may reject the AJ’s findings and

substitute its own. Jackson v. Veterans Admin. , 168 F.2d

1325, 1330-31 (Fed. Cir. 1985). However, "[o]n appeal

to this court, when a finding by the presiding official of

this nature [respecting credibility] has been reversed by

the board, we cannot sustain the board’s decision unless

the board has articulated a sound reason, based on the

record, for its contrary evaluation of the testimonial

evidence." Id. at 1331. We hold that in the instant case,

the Board has articulated such reasoning. The Board

correctly explained that, contrary to the negative

inference drawn by the AJ, the fact that Coones could

list only two specific circumstances under which he

would consider mitigating the removal did not mean that

he had not exercised his managerial discretion to assign

a penalty within tolerable limits of reasonableness. In

addition, the Board properly relied upon the affidavit of

agency official Melissa Allen, who stated that the

initiation of a removal action (the agency’s policy with

respect to employees in safety- or security-sensitive

positions who refuse to submit to random drug testing)

is not equivalent to mandating removal. The Board noted

Ms. Allen’s knowledge of at least two agency employees

App-4

who, after receiving notices of proposed removal for

refusal to submit to random drug testing, ultimately

received lesser penalties.

Regardless of whether the Board’s final decision

differs from the AJ’s initial decision, this court evaluates

the Board’s final decision under the substantial evidence

standard. Jackson, 768 F.2d at 1330. Here, the full

Board examined all the evidence and concluded that the

factors supporting mitigation were simply outweighed by

those supporting removal. See Baker v. Department of

Health and Human Serv., 912 F.2d 1448, 1456 (Fed.

Cir. 1990). The Board found, inter alia, that Watson’s

position as an electronics technician for the FAA

involved "serious safety responsibilities," that Watson’s

refusal to follow his supervisor’s order to submit to drug

testing in accordance with the agency’s program

adversely affected the efficiency of the service, i.e., that

there was "nexus," and that Watson lacked a good

potential for rehabilitation. Substantial evidence in the

record supports each of the Board’s findings.

Accordingly, we may not disturb the Board’s decision

sustaining Watson’s removal. 5 USC 7703(c).

App-5

The Dissent

The dissent would reverse the full Board’s decision

on the basis of Watson’s reliance upon the majority

opinion in Railway Labor Executives’ Assn v. Burnley,

839 F.2d 575 (9th Cir. 1988) (RLEA 1). According to the

dissent, RLEA J declared suspicionless drug testing by

government action to be illegal wherefore that became

the law in the Ninth Circuit, and was controlling at the

time of Watson’s refusal to be tested because all events

occurred in the Ninth Circuit. The dissent reasons that

removal from federal service should not be based upon

an employee’s refusal to comply with an unconstitutional

order. Though this issue was not briefed by either party,

we feel it necessary to respond.

We agree that as a matter of public policy,

individuals should be able to act in accordance with what

the law is at a particular time and place. However, the

State of the law of suspicionless drug testing of

government employees at the time of Watson’s refusal

was plainly unsettled, even in the Ninth Circuit. We

accordingly view the asserted reliance of Watson and his

attorney on RLEA / as unjustified and unreasonable, for

at least the following reasons. First, we find it

significant that Watson’s refusal to undergo drug testing

occurred on August 18, 1988, some two months after the

Supreme Court granted certiorari in RLEA J on June 6,

1988. Burnley v. Railway Labor Executives’ Ass n, 486

App-6

U.S. 1042 (1988) (No. 87-1555). One swallow does not

make a summer and one court’s opinion, accepted for

review by the Supreme Court, has not settled anything

even in one limited geographic area. In addition, we

disagree with the dissent’s characterization of the drug

testing procedure at issue in Watson’s case as having

"already been held unconstitutional." It should be noted

that the regulations construed in RLEA I, which

mandated post-accident drug testing for all involved

railroad employees, are not identical either in form or

applicability to the FAA regulations applied here, albeit

both programs permit testing without particularized

suspicion. See RLEA IJ, 839 F.2d at 577-78 nn.3-4 (text

of Federal Railroad Administration regulations); see also

Railway Labor Executives’ Ass’n v. Skinner, 934 F.2d

1096, 1098 (9th Cir. 1991) (noting that in reversing

RLEA I, the Supreme Court "did not address the

constitutionality of random drug testing . . ."); National

Air Traffic Controllers Ass’n v. Burnley, 700 F. Supp.

1043, 1045 (N.D. Cal. 1988) (noting that in RLEA /,

"notably, the government was regulator, rather than, as

here, employer... .")

The dissent criticizes the Board’s reliance upon

Gragg v. United States Air Force, 13 MSPR 296 (1982),

which in turn relied upon Walker v. City of Birmingham,

388 U.S. 307 (1967), because neither of these decisions

addressed an individual’s obligation to comply with

procedures already held unconstitutional. Contrary to the

ee |

App-7

dissent’s view, we believe Gragg and Walker support the

proposition that, absent circumstances where compliance

would involve clear physical danger, regulations and

laws must be obeyed, even if unconstitutional, unless

obedience would prevent a subsequent legal challenge. It

is clear that submission by Watson to drug testing would

not have mooted a later legal challenge to the testing

program. In our view, the dissent advocates a new

exception to the well-established "obey then grieve” rule

for federal employees. At the most fundamental level,

the dissent would apparently hold that rules about

compliance are different categorically where

constitutional rights are involved. This is judicial

creation of new law in which we cannot join.

App-8

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

91-3558

GERALD B. WATSON, JR.,

Petitioner,

DEPARTMENT OF TRANSPORTATION,

Respondent.

NEWMAN, Circuit Judge, dissenting.

I respectfully dissent, for when I review what

happened to Mr. Watson it is clear that the Board has

erred. An important question is presented in this case,

concerning the relationship of federal employer and

employee.

In brief: On August 18, 1988 Mr. Watson’s

supervisor at the Federal Aviation Administration’s field

office in Eugene, Oregon told him that he would be

given a random drug test that afternoon. The previous

February the Ninth Circuit Court of Appeals had held,

App-9

in Railway Labor Executives’ Ass’n vy. Burnley, 839 F.2d

575 (9th Cir. 1988) (RLEA J), that Suspicionless drug

testing by government action violates Fourth Amendment

rights. Mr. Watson lives and works in the Ninth Circuit.

Mr. Watson consulted a lawyer, who advised him that

“the test was unlawful under the Fourth Amendment and

that he could refuse to take it," quoting the findings of

the administrative judge. Mr. Watson’s lawyer then

spoke with the supervisor and informed him that random

drug testing had been held unconstitutional by the highest

federal court in the circuit, and that Mr. Watson would

not submit to the test.

The testing proceeded that day as announced, and

Mr. Watson refused to take the test. However, on the

advice of his lawyer, that same afternoon he went to a

private testing laboratory, which conducted a drug test.

He was found to be drug free, and submitted the results

to the agency. The agency does not question the accuracy

of this test, and indeed had told Mr. Watson that he was

not suspected of illicit drug use.

On August 23, 1988 Mr. Watson filed a civil action

in federal district court, challenging the constitutionality

of the random testing program. That suit was dismissed

for lack of subject matter jurisdiction, the court holding

that "the Civil Service Reform Act provides the

exclusive forum" for Mr. Watson’s challenge. Watson v.

United States, No. 88-6363-E, slip op. at 6 (D. Or.

App-10

Oct. 25, 1988). Meanwhile, on August 31, 1988, Mr.

Watson received a notice of proposed removal for failure

to comply with the random testing program. He was duly

and promptly removed.

Mr. Watson appealed to the Board. At the hearing

there was testimony before the administrative judge about

why Watson refused to submit to testing; about why

Watson decided to have a drug test, albeit privately;

about Watson’s eleven years of “fully successful"

performance; and about the deciding official’s choice of

penalty. After the hearing, but one month before the

administrative judge’s decision, the Ninth Circuit

decision in RLEA | was overruled by the Supreme Court

in Skinner v. Railway Labor Executives’ Ass'n, 489 U.S.

602 (1989) (RLEA I//), the Court holding that Fourth

Amendment rights were outweighed in that case by a

reasonable and compelling government interest in safety.

The administrative judge reduced Mr. Watson’s penalty

to a 45-day suspension, stating that he did not credit the

deciding official’s testimony that he considered penalties

other than removal, and finding that various factors,

including Mr. Watson’s reliance on Ninth Circuit law

and the advice of his attorney, weighed against removal.

The administrative judge held that the agency could

require Mr. Watson to submit to drug testing as a

condition of reinstatement.

App-11

The agency appealed to the full Board. The Board

overruled the administrative judge, and reinstated the

agency’s removal of Mr. Watson. The Board held that

Mr. Watson was required to comply with the agency’s

order regardless of its legality.

The Board also held that in any event the agency’s

testing program did not violate the Constitution, citing

Shelledy v. Dept. of Transp., No. DE0Q7528810381

(MSPB June 21, 1991) and American Federation of

Gov't Employees v. Skinner, 885 F.2d 884 (D.C. Cir.

1989) as authority. Both of these cases were decided

after the Supreme Court in RLEA // overruled the Ninth

Circuit decision in RLEA J. The Board did not mention

either of the RLEA decisions.

Neither the Board in its opinion, nor the agency’s

brief, touches the question of the correctness of requiring

Mr. Watson to comply with a governmental order that

was unconstitutional and illegal at the time. Instead, the

government relies on Gragg v. U.S. Air Force, 13

M.S.P.R. 296 (1982), appeal dismissed sub nom Gragg

v. United States, 717 F.2d 1343 (Fed. Cir. 1983) for the

proposition that Mr. Watson was required to obey a

supervisory order and, if he wished to challenge it, to do

so after he complied with it. All of the governmental

App-12

submissions in this court have avoided' the sensitive

question of requiring compliance with an illegal order

when constitutional rights are involved.

Is the official position of our government, as an

employer, that a federal employee’s obligation is to

comply with an unconstitutional order, on pain of being

fired? We have been directed to no authority for this

proposition. Gragg, a 1982 Board decision, did not

involve a constitutional ruling of a court; it involved the

agency’s demand that an employee shave his beard, such

demand being contrary to the employees’ bargaining

agreement. The decision in Gragg interprets Walker v.

City of Birmingham, 388 U.S. 307 (1967) as standing for

the proposition that “individuals do not have the

'The majority opinion states that the issue of the

propriety of removal based on a refusal to obey an

unconstitutional order was not briefed by either party.

That is inaccurate. Mr. Watson’s brief discusses his

"good faith objection to the constitutionality of random

testing" based on his reliance on RLEA / and on his

attorney’s advice based on this decision. The

government’s brief, however, is indeed silent on this

issue. Despite Watson’s clearly stated argument based on

his reliance on the law of the Ninth Circuit, the

government avoids all reference to RLEA J. Such an

omission can only have been deliberate; and indeed, the

position that Watson could not rely on the law of the

Ninth Circuit is not easily supportable.

App-13

unfettered right to disregard a law, rule or regulation

merely because substantial reason exists regarding the

constitutionality or validity of that law, rule or

regulation." Gragg, 13 M.S.P.R. at 299. Walker held

that a court-issued injunction must be respected. Indeed,

Walker provides solid support for Watson’s actions. Both

Watson and the agency were obliged to respect a duly

issued ruling of the Ninth Circuit.

The majority of this panel states that Walker supports

the proposition that even an _ unconstitutional

administrative regulation must be obeyed. I can not

agree. The Court in Walker addressed a situation where

petitioners, charged with contempt of a state court

injunction, sought collaterally to attack the constitution-

ality of the injunction as well as the city ordinance on

which it relied. These arguments were held to be

unavailable to the petitioners because they had not sought

orderly judicial review before violating the injunction.

The Walker majority stated that "[t]his case would arise

in quite a different constitutional posture if the

petitioners, before disobeying the injunction, had

challenged it in the Alabama courts." Walker, 388 U.S.

at 318.

App-14

Walker thus addressed the duty to obey a duly issued

court order, not a duty to obey a facially illegal agency

order. Further, Mr. Watson had promptly sought orderly

judicial review. Gragg’s interpretation of Walker as

requiring an employee to shave his beard before filing a

grievance is quite different from requiring an employee

to acquiesce in a then-unconstitutional search. A federal

agency does not have authority to issue an illegal order,

and severe punishment for non-compliance with an

illegal order is unwarranted. Estep v. United States, 327

U.S. 114, 126 (1946) (Murphy, J., concurring). There

is no "well-established" rule that federal employees must

yield their Constitutional rights when ordered to do so.

The "obey now grieve later" rule of Gragg may have a

place in disputes arising under a collective bargaining

agreement, but Mr. Watson’s cause arises under the

Constitution.

Even in disputes arising under a collective bargaining

agreement, the “obey now grieve later" rule has been

rejected when an employer’s order is illegal: "Apparently

the Board believes that an employee given an unlawful

order is ... obliged to ‘obey and grieve.’ We prefer the

alternative view that a citizen’s first obligation is to obey

the law, not the unlawful commands of an employer."

Garcia v. N.L.R.B., 785 F.2d 807, 812 (9th Cir. 1986).

The majority of this panel too readily finds the "obey

and grieve" rule proper under these circumstances.

App-15

The question before us is the punishment of Mr.

Watson for having relied on the Ninth Circuit decision

holding the suspicionless drug-testing program illegal.

The panel majority suggests that Mr. Watson could not

have reasonably relied on RLEA / because the drug-

testing program in RLEA I was not identical to the

program affecting Mr. Watson. Indeed, RLEA / involved

drug testing only after a "triggering event" such as a

railroad accident, whereas the program affecting Mr.

Watson required no "triggering event" at all. If a

program of suspicionless drug testing after a railroad

accident was unconstitutional, then surely a program of

suspicionless drug testing with no triggering event was

even less supportable.

Until RLEA / was overturned by the Supreme Court,

Watson was entitled to rely on it. The grant of a petition

for certiorari does not automatically vacate the prior law,

or require those subject to that law to behave as if it had

already been reversed. "Unless and until ... reversed or

modified" on appeal, even an erroneous decision is "an

affective and conclusive adjudication”, Rooker v. Fidelity

Trust Co., 263 U.S. 413, 415 (1923).

When the law is changed, even retroactively, equity

may require adjustment of the remedy when a person has

relied on the existing law. See James B. Beam Distilling

Co. v. Georgia, 111 S. Ct. 2439, 2443 (1991) (Souter,

J.). The administrative judge neither exonerated Mr.

App-16

Watson entirely, nor ratified the penalty of firing a fully

successful employee of eleven years. The Board,

however, fired Mr. Watson. It is a travesty of the rule of

law to impose this extreme punishment for refusing to

comply with an order, the constitutionality of which had

been litigated and found wanting at the time the order

was issued. It is the Constitution that is the highest law,

not an administrative order.*

*The concurring opinion states that I "advocate" that

"several million federal employees ... routinely and with

complete impunity disobey any agency order or

regulation the constitutionality of which they doubt or

which is sub judice", while engaging in "speculative" or

"metaphysical debate". (Emphasis in concurrence.) That

is a Curious interpretation of RLEA J, wherein the Ninth

Circuit had already declared suspicionless drug testing

unconstitutional. That ruling was neither speculative nor

metaphysical.

App-17

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

91-3558

GERALD B. WATSON, JR.,

Petitioner,

DEPARTMENT OF TRANSPORTATION,

Respondent.

MICHEL, Circuit Judge, concurring, with additional

Views.

I agree with the result and reasoning of Judge Rich’s

opinion in which I join, but add the following further

reasons why I find the dissent unpersuasive:

Although seeking to distinguish Gragg and the other

cases relied upon by the Board, the dissent cites no

authonity specifically supporting much less requiring the

new and far-reaching rule the dissent itself advocates.

That rule would allow several million federal employees,

App-18

including those like Watson in "sensitive positions,"

routinely and with complete impunity to disobey any

agency order or regulation the constitutionality of which

they doubt or which is sub judice. One can easily

imagine the spread of employee noncompliance with

agency orders that such a rule would likely spawn.

Whatever its merit as social policy for such a broad and

consequential rule to be imposed as judge-made law

rather than through legislation, only a constitutional

mandate declared by the Supreme Court should suffice.

The dissent’s failure to cite any Supreme Court decision

requiring its rule is therefore a critical deficiency.

Presumably, the dissent could not find such supporting

authority because the uniform practice requiring federal

employees, as a condition of employment, to "obey now"

and “grieve later," unless personal safety would be

jeopardized, does not in fact transgress any constitutional

right. Further, as the proponent of a new constitutional

rule that would reverse government-wide practice, the

dissent bears a heavy burden of persuasion that I think is

not met here. That courts are ill-equipped to predict and

evaluate the practical consequences of such rules is only

another reason to doubt the rule the dissent would

impose.

Nor do I believe the fundamental principle underlying

this practice is limited to alleged breaches of collective

bargaining agreements, as the dissent suggests. Indeed,

often an employee charges that the disputed order or

App-19

regulation contravenes both contractual and constitutional

nghts. Therefore, the so-called "grieve later" rule should

be understood broadly to include not only grievances per

se but also administrative and judicial challenges to an

agency-employer’s order.

Watson's refusal to take the drug use test clearly was

not based on safety considerations; nor does he even

assert that it was. Indeed, if anything, it threatened the

safety of passengers whose lives could depend on the

quality of Watson’s work. The only other broad

exception recognized by case law is where compliance

with a disputed order would preclude subsequent legal

challenge. Clearly, that was not the case here, either.

In any event, the issue the dissent would deem

dispositive was not even presented in this appeal.

Although Watson did argue below that the "obey and

grieve" rule of Gragg should be set aside, he waived that

argument on appeal. Here, Watson did not argue against

application of the rule on the issue of liability, either

generally or on the unique facts of his case, but only that

the Board should have considered as a mitigating factor

on penalty his "good faith belief that random drug testing

was unconstitutional."

App-20

Again, however, neither Watson nor the dissent has

cited any authority holding that an employee’s asserted

good faith belief in the unconstitutionality of an agency’s

order must a/ways be considered as a mitigating factor

by the agency when it selects the penalty for disobeying

that order. If we were now categorically to impose this

requirement, it should be expected that many personnel

actions based on disobedience of an order would

degenerate into an extended inquiry into the subjective

state of mind of the employee and a speculative, almost

metaphysical, debate about the constitutionality of the

order, involving premature predictions, often solely by

laymen, about future outcomes in pending or expected

constitutional test cases. This would hardly improve the

efficiency of the service or of MSPB hearings. Nor is it

clearly necessary for fairness to employees. None of

which is to say, however, there might not be a case

someday involving facts that would require that such a

belief must be considered in mitigation. But this is not

such a case.

Even assuming, arguendo, that the Board was

required to consider Watson’s asserted good faith belief

in the unconstitutionality of the FAA’s order and that

Watson’s reliance on RLEA / was justified, neither

Watson nor the dissent has shown, based either on

factually comparable cases or on the equities of this case,

App-21

that the Board abused its discretion by not mitigating his

penalty. Hence, if error at all, the Board’s failure to

weigh Watson’s belief was at most harmless error.

Finally, the dissent goes too far in saying that the

FAA order here had effectively been held

unconstitutional by the 9th Circuit decision in RLEA /.

For one thing, that case invoked only the government’s

limited powers as a regulator, not its broader powers as

an employer. Other distinctions are noted in Judge Rich’s

opinion. Therefore, despite the view of Watson’s

attorney, it was not at all clear that when it issued the

employer's order in this case it was unconstitutional, as

the regulator’s order in that case was temporarily held to

be.

In sum, constitutional challenges should not be

interposed on the spot by public employees confronted

with agency orders they question and wish to challenge.

Instead, such constitutional challenges should be brought

by employees in due course after compliance, with only

the limited exceptions established in case law.

App-22

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GERALD B. WATSON, ) DOCKET NUMBER

: ) SE07528910074

)

Appellant,

DATE:JUL 25, 1991

DEPARTMENT OF

TRANSPORTATION,

Agency.

a i a ee ee a ad

Michael McGrady, Esquire, Eugene, Oregon, for the

appellant.

Paul S. Smith, Esquire, Washington, D.C., for the

agency.

BEFORE

Daniel R. Levinson, Chairman

Antonio C. Amador, Vice Chairman

Jessica L. Parks, Member

App-23

OPINION AND ORDER

This case is before the Board upon the agency’s

petition for review and the appellant’s cross petition for

review of the April 21, 1989 initial decision that

mitigated the appellant’s removal to a 45-day suspension.

For the reasons discussed in this Opinion and Order, the

Board GRANTS the agency’s petition for review,

DENIES the appellant’s cross petition for review, and

AFFIRMS the initial decision as MODIFIED by this

Opinion and Order, SUSTAINING the agency’s removal

action.

BACKGROUND

The appellant appealed to the Board’s Seattle

Regional Office from the agency’s action removing him,

effective December 4, 1988, from his Electronics

Technician position with the Airway Facilities Sector

Field Office in Eugene, Oregon. The agency based its

removal on the charge that the appellant refused to

submit to random drug testing. See Appeal File (IAF) at

Tabs 3(B), 3(F).

The facts surrounding the appellant’s removal are

undisputed. On August 18, 1988, the appellant’s

supervisor informed him that he had been randomly

selected for drug testing that day. See id. The test was to

be conducted in accordance with agency Orders 3910.1

App-24

and 3910.6, which were issued pursuant to Executive

Order No. 12,564, 51 Fed. Reg. 32,889 (1986), entitled

"Drug-Free Federal Workplace." The appellant

immediately consulted an attorney, who advised him that

the random drug testing was unconstitutional under the

Fourth Amendment to the United States Constitution and

that he was not required to submit to it. Acting on that

advice, the appellant refused to take the test. However,

on the same day, he went to a private clinic and

provided a urine sample, which was sent to a laboratory

for testing. The appellant tested "negative" (drug- free).

In his petition for appeal, the appellant denied the

agency’s charge on the basis that he had submitted to a

drug test within the time period specified by the agency.

He also contended that there was no nexus between the

conduct charged and the efficiency of the service and

argued that the penalty was inappropriate. Further, he

challenged the constitutionality of the random drug |

testing. Jd. at Tab 1.

The administrative judge found the agency’s charge

supported by preponderant evidence. He based his

determination on the undisputed evidence that the

appellant refused to provide a urine sample in accordance

with the agency’s drug-testing program. The

administrative judge found no merit to the appellant’s

asserted defenses for his noncompliance. In this regard,

the administrative judge noted that, under the agency’s

<<<

App-25

regulation, the appellant was not permitted to substitute

his testing preference for the agency’s established

procedure. The administrative judge therefore rejected

the appellant’s contention that he had, in fact, provided

a urine sample. He also found without merit the

appellant’s contention that he was not required to comply

with the agency’s drug-testing requirement because it

violated his rights under the Fourth Amendment. Relying

on Gragg v. United States Air Force, 13 M.S.P.R. 296,

299 (1982), appeal dismissed sub nom. Gragg v. United

States, 717 F.2d 1343 (Fed. Cir. 1983), the

administrative judge noted that, except in certain limited

circumstances where compliance with agency directives

might place employees in danger, employees were

required to obey agency directives, even if invalid, and

challenge them later. See Initial Decision at 4-5.

The administrative judge did not specifically address

the constitutionality of the agency’s random drug-testing

program, noting that in Mode v. Tennessee Valley

Authority, 20 M.S.P.R. 228, 230 (1984), and Clark v.

Department of the Navy, 20 M.S.P.R. 152, 154 (1984),

cases involving the constitutionality of an agency

regulation subjecting employees to searches, the Board

did not consider that issue. Further, the administrative

judge declined to apply equitable estoppel to the agency’s

argument that the Board should not decide the Fourth

Amendment issue. He found that the application of

equitable estoppel was not appropriate even though the

App-26

agency's attorneys had argued, in a suit the appellant

brought in a United States district court to enjoin the

agency's random drug-testing program, that the Board

would decide the constitutional issue. See Initial Decision

at 5-6.

The administrative judge next considered the

~ appellant’s contentions that no nexus existed between the

conduct charged and the efficiency of the service because

there was no reason for the agency to believe that he was

a drug user, because there was no evidence of deficiency

in his performance, and because drug testing neither

measured job impairment nor established that drug use

caused job impairment. The administrative judge found

that there was a causal connection between an

employee’s refusal to comply with regulations the agency

believed were properly promulgated and the efficiency of

the service. The administrative judge further found that

the fact that there might have been better alternatives to

the agency’s random drug-testing program did not relieve

the appellant of his duty to comply with the program’s

requirements. /d. at 6-7.

As to the appropriateness of the penalty, the

administrative judge found that the offense was serious,

particularly since the appellant occupied a "safety

critical" position and had timely notice of the drug

testing and the consequences for refusing to submit to it.

The administrative judge found, however, that mitigation

App-27

was warranted. After finding that the agency had

predetermined the appellant’s removal, he found that the

appellant’s refusal to submit to the agency’s drug testing

was reasonable, based on his own belief and his

attorney’s advice that the testing was unconstitutional.

The administrative judge noted that the Board had found

that objectively reasonable belief, even if mistaken, that

one’s constitutional rights would be violated by following

an agency order could be a mitigating factor. /d. at 12.

The administrative judge also considered the

appellant’s concern with the effect of melanin on his test

results,’ finding that, although less reasonable than his

constitutional belief, it was not unreasonable because the

theory that caused his concern had once received

“apparently respectable support,” and because false

positive results were possible. He considered the fact that

the appellant submitted to drug testing within two hours

of the time he was required to submit the urine sample

to the agency, and noted that, even though the laboratory

he selected was not on the certified list of the

' The appellant, who is black, had argued that he

was concerned with the accuracy of the drug testing

because of reports that persons with dark pigmentation of

the skin were more likely than persons with light

pigmentation to test falsely positive for cannabinoids. See

Initial Decision at 13: Appellant’s Exhibit H, IAF at Tab

13.

App-28

Department of Health and Human Services (DHHS), it

was accredited and was a subsidiary of SmithKline Bio-

Science, a laboratory that was on the DHHS list;

however, agency officials did not consider the results of

this test, which showed the appellant to be drug-free. /d.

at 13-14.

The administrative judge further determined that the

agency could have imposed discipline short of removal

and then, under its drug-testing provisions, could have

ordered the appellant to undergo follow-up testing or

submit to another test before returning to duty. The

administrative judge noted that the appellant’s refusal to

take the test was discreet and that he did not encourage

others to refuse drug testing. Finally, the administrative

judge found that the appellant’s potential for

rehabilitation was excellent under the circumstances

because of his present willingness to comply with the

agency’s random drug-testing program. Accordingly, the

administrative judge mitigated the penalty to a 45-day

suspension. /d. at 14-16.

In its petition for review, the agency challenges the

administrative judge’s finding that mitigation of the

penalty was warranted.

App-29

The appellant has responded to the petition for

review, and has filed a cross petition for review,”

contending that: (1) The Board should decide the

constitutional issue raised in this case; (2) an exception

should be made to the "obey then grieve” rule where an

employee’s fundamental rights may be irreparably

injured; and (3) no nexus exists between his refusal to

submit to drug testing and the efficiency of the service.

The agency has responded to the appellant’s cross

petition for review.

For facility of discussion, we will address the

agency's petition for review and the appellant’s cross

petition for review in reverse order.

ANALYSIS

The appellant's cross petition for review

With respect to the appellant’s Fourth Amendment

contention, see Appellant’s Brief and Cross Petition for

Review at 16, Petition for Review (PFR) File at Tab 3.

we find that the administrative judge erred in not

addressing the constitutionality of the agency’s random

*Although the appellant’s submission is captioned

"Respondent’s Brief and Cross Appeal,” we will refer to

it in this decision as "“Appellant’s Brief and Cross

Petition for Review."

App-30

drug-testing program. In Malone v. Department of

Justice, 14 M.S.P.R. 403, 406 (1983), the Board held

that it had no authority to consider the constitutionality

of statutes. The instant case, however, does not involve

the constitutionality of a statute. Rather, it concerns the

reasonableness of the agency’s random drug-testing

program. The Board considered this issue in Shelledy v.

Department of Transportation, MSPB Docket No.

DE07528810381, slip. op. at 6-10 (June 21, 1991), and

found that the agency’s random drug-testing of air traffic

control specialists did not violate the constitutional

prohibition against unreasonable search and seizure. The

Board stated that, in determining whether a search is

reasonable, consideration was to be given to the benefits

gained from that search. /d. at 8. The Board found "that

the decrease of the potential catastrophic harm in lives

lost resulting from an impaired ATCS justifie[d] the

agency's program of testing air traffic control specialists,

and, therefore, compel[led] the finding that the agency’s

program of random drug testing, in these circumstances,

was reasonable.” /d. at 8-9. Moreover, we note that, in

American Federation of Government Employees v.

Skinner, 885 F.2d 884, 891-93, 898 (D.C. Cir. 1989),

cert. denied, 110 S. Ct. 1960 (1990), the court

specifically upheld the constitutionality of the agency’s

random drug-testing program.

App-31

In the instant case, we find, likewise, that the

agency's random drug-testing of electronics technicians

does not constitute an unreasonable search. The agency

stated in the notice of proposed removal that random

drug-testing was necessary because the position of

electronics technician involved "immense responsibility

for the lives and property of others” and that "[cJonstant

alertness of mind and soundness of judgment are basic to

the position.” IAF at Tab 3, Subtab F. The agency also

stated that random drug testing was necessary to

"preserve the public’s and user’s confidence” in the

aviation system. /d.

At the hearing, the agency presented the testimony of

its Airway Facility Sector Manager that electronics

technicians performed "very critical work” and that they

“maintain[ed], calibrate[d] and adjust[ed] facilities,

which, if improperly done, could result” in airplane

crashes. Hearing Transcript (Tr.) at 27. The agency also

submitted various statements relating to the high safety

requirement of the appellant’s position, including

Statements from Edward Kelly, Deputy Director of

Systems Maintenance Service at the FAA in Washington,

D.C., and Melvin Yoshikami, Manager of the Airways

Facilities Division of the FAA in Seattle, Washington.

IAF at Tab 18. Mr. Kelly explained the functions of an

electronic technician, which included “servicing of

equipment,” "corrective maintenance,” and responsibility

for "control, navigation, radar and communications

App-32

machinery that allow[ed] safe operation and positive

control of aircraft both in the sky and on the ground at

airports." Id.

Mr. Yoshikami stated that, "[iJn order to perform

their duties satisfactorily, electronics technicians must be

continuously alert and able accurately to examine and

maintain complex electronic equipment," and _ that

improper certification of equipment "could result in

unsafe conditions directly, and potentially tragically,

affecting the national airspace system." Jd. The appellant

does not deny that his position of Electronics Technician

involves serious safety responsibilities as stated by the

agency. Thus, we find that the random drug-testing of

electronics technicians by the agency is reasonable.

We find no merit to the appellant’s contention that

the "obey then grieve" rule should be suspended in this

case. See Appellant’s Brief and Cross Petition for

Review at 14. In Gragg, 13 M.S.P.R. at 299, the Board,

citing Walker v. Birmingham, 388 U.S. 307, reh. denied,

389 U.S. 894 (1967), stated that "individuals do not have

the unfettered right to disregard a law, rule or regulation

merely because substantial reason exists regarding the

constitutionality or validity of that law, rule or

regulation." It noted, though, that “in certain limited

circumstances employees may disobey an order which

would place them in a clearly dangerous situation." /d.

App-33

The circumstances of the instant case do not fall within

this exception. Therefore, we find that the appellant

improperly failed to obey the agency’s instructions.

We also find no merit to the appellant’s contention

that no nexus was shown between his misconduct and the

efficiency of the service. See Appellant’s Brief and Cross

Petition for Review at 13-14. It is well established that

refusal to follow proper instructions adversely affects the

efficiency of the service. See Blevins v. Department of

the Army, 26 M.S.P.R. 101, 104 (1985), aff'd, 790 F.2d

95 (Fed. Cir. 1986) (Table): Gragg, 13 M.S.P.R. at

301. The appellant’s refusal to comply with his

supervisor’s order to submit to drug testing in

accordance with the agency’s random drug-testing

program constituted a refusal to follow proper

instructions. Therefore, a nexus existed between the

appellant’s misconduct and the efficiency of the service.

The agency’s petition for review

The agency challenges virtually every basis on which

the administrative judge relied in finding that mitigation

of the penalty was warranted. The agency contends that

the administrative judge erred in finding that it accorded

better treatment to employees who tested positive for

drugs than to those who might have been drug free, but

who refused drug testing. It argues that it is obligated to

provide reasonable accommodation to employees

App-34

suffering from a drug-addiction handicap, but that, when

employees refuse to take the drug test, it cannot

determine whether they are entitled to reasonable

accommodation. See Agency’s Petition for Review at 10-

11, PFR File at Tab 1. We find that the administrative

judge’s comparison between drug-addicted handicapped

employees and employees who refuse drug testing is

inapposite inasmuch as different types of misconduct and

procedures are involved.

The agency also contends that the administrative

judge erred in relying on a statement by a government

attorney in the motion for injunction brought by the

appellant in the Federal district court. Agency’s Petition

for Review at 11. That attorney stated that, if the

appellant prevailed, the agency’s drug-testing program

might be jeopardized. The agency contends that the

attorney’s statement was not probative of the issues

raised in the instant case, that the attorney was not the

agency’s deciding official, and that the deciding official

had no contact with that attorney. Jd.

The administrative judge referred to the statement in

question in addressing the issue of whether the agency

had predetermined the penalty. See Initial Decision at 9.

In this regard, the administrative judge found that the

agency had predetermined the appellant’s removal based

on the evidence of record, including: (1) The attorney’s

argument before the district court that the drug-testing

App-35

program might be jeopardized if the appellant prevailed;

(2) the agency’s drug-testing order and guidelines

providing that an employee who refused to provide a

urine sample would be removed; (3) the statement of the

agency's coordinator for the drug program that removal

was the general rule for such refusal even though the

employee had a good work record and no prior

discipline; and (4) the testimony of the

proposing/deciding official that he did not prepare either

the proposal notice or the decision letter and was not

aware of the circumstances surrounding the appellant’s

refusal to submit the urine sample. See Initial Decision

at 9- 11.

The record does not support the administrative

judge’s finding that the agency had predetermined the

penalty. Melissa Allen, the agency’s Deputy Assistant

Secretary for Administration, submitted an affidavit in

regard to this issue. See Appeal File, Tab 18, Agency

Exhibit No. 14. In her affidavit, Ms. Allen averred that

the agency’s procedures required the initiation of action

to remove an employee who occupied a safety or security

sensitive position and who refused to provide a urine

sample for an agency-administered test. She noted that

Chapter X, Section III.B., of the Drug Testing Guide

Stated that the supervisor should initiate action to remove

an employee for failure to take a drug test. See id;

Agency Exhibit No. 12. The initiation of a removal

action, however, is not equivalent to mandating removal.

App-36

Ms. Allen further averred as follows:

The Department also recognizes that the ultimate

decision concerning the appropriate type of

disciplinary action that may be imposed depends

upon the circumstances of each individual case.

In fact, I am aware that in the case of at least two

DOT employees who refused to submit to a

random drug test and received notices of

proposed removals, the respective deciding

officials ultimately determined that removal was

unwarranted and lesser penalties were imposed.

Agency Exhibit No. 14.

Additionally, the deciding official testified that he had

not been directed by anyone to remove the appellant and

that he considered mitigation of the penalty. See Tr. at

24-25, 26. While he stated that he felt his discretion was

somewhat limited by the drug program’s disciplinary

provisions, he felt that he had the authority to assess the

appropriate penalty. Jd. at 25, 35. He gave two specific

examples of circumstances he felt would have warranted

a lesser penalty and stated that he would consider any

other reason offered to him. Jd. at 32-33, 37.

App-37

The administrative judge erred in concluding that the

fact that the deciding official listed only two specific

mitigating circumstances showed that he failed to

properly consider mitigation. It is not a deciding

official’s responsibility to provide a list of circumstances

that might have caused him to adopt a lesser penalty.

Rather, the deciding official is only required to consider

all of the relevant mitigating factors that actually exist in

a given case and exercise management discretion within

tolerable limits of reasonableness. See Spearman vy.

United States Postal Service, 44 M.S.P.R. 135, 141

(1990); Gleason v. Department of the Army, 38

M.S.P.R. 547, 550 (1988). In the instant appeal, the

deciding official testified that he considered mitigation

but believed that the offense was very serious, that if a

lesser penalty were imposed it would render the agency’s

drug program ineffective, and that it would send a

message to the work force that employees could avoid

taking the drug test. Tr. at 26-27, 29. Thus, we find that

the deciding official properly considered the

appropriateness of the penalty and that the administrative

judge’s conclusion that the deciding official "had merely

gone through the motions of decision-making" is

unsupported by the record. Initial Decision at 9-10.

Likewise, we find unsupported by any legal or other

authority the administrative judge’s determination that the

deciding official’s lack of personal knowledge of the case

and the fact that he did not prepare either the proposal or

the removal notices constituted mitigating factors. See

App-38

Initial Decision at 10-11. Cf Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 306 (1981) (the Board

will review an agency-imposed penalty only to determine

if the agency considered all the relevant factors and

exercised management discretion within tolerable limits

of reasonableness).

Additionally, we find that the appellant received

timely and adequate notice of the test and was clearly on

notice of the consequences of his failure to submit to the

test. See Appeal File, Tab 3(F). The appellant’s reliance

on his attorney’s advice is unpersuasive as a mitigating

factor because it is well established that an employee

must obey a proper supervisory order and challenge it

later. See Gragg, 13 M.S.P.R. at 299. The appellant’s

action of taking a drug test on his own did not constitute

compliance with his supervisor’s orders, and sanction of

such behavior would seriously undermine the agency’s

drug-testing program. In this regard, we disagree with

the administrative judge’s statement that a lesser penalty

would not affect the drug-testing program because the

appellant had been discreet. We find that this view is

unrealistic inasmuch as such a matter generally becomes

common knowledge among the workforce and would

tend to influence other employees’ behavior.

App-39

Finally, we note that the administrative judge relied

heavily on his assessment that the appellant was a good

prospect for rehabilitation, in large part because the

administrative judge determined that the appellant had

subsequently indicated his willingness to comply with the

agency’s drug-testing program. The appellant, however,

did not give an unqualified statement that he would

comply. At the hearing, the appellant was asked if he

was refusing to take the test at that time. He answered,

"No." When asked why he had changed his position, he

Stated:

I have a little better understanding about it, about

the whole program. I think that if I was going to

random urinalysis from the Government now, I

think that I would insist -- I wouldn’t request, but

I would insist -- on having a sample sent to a

laboratory of my choice, or I would escort them

with a sample of my urine to a laboratory of my

choice so that I could make sure that their system

is reliable.

Tr. at 49.

The appellant’s testimony is not an unqualified

statement of his intent to comply with future orders.

Rather, it seems to impose a significant condition and

change the agency’s program. Thus, we find

distinguishable from the instant appeal the Board's

App-40

decisions in Mode, 20 M.S.P.R. at 231, and Grissom v.

Tennessee Valley Authority, 7 M.S.P.R. 387, 388

(1981), upon which the administrative judge relied in

finding that the appellant’s “objectively reasonable, albeit

mistaken, belief" that the agency’s drug-testing program

violated his constitutional rights was a mitigating factor

to be considered in determining the reasonableness of the

penalty. See Initial Decision at 12-13. In Mode, 20

M.S.P.R. at 231, the Board found that the appellant was

unaware that he could have obeyed the agency’s order

and then taken appropriate action to determine his

constitutional nmghts but that, once he understood his

rights, he would not continue to refuse to comply with

the agency’s directive. In Grissom, there was no

indication that the appellant would continue to refuse to

comply with the agency’s orders. In the present appeal,

however, the evidence indicates that the appellant, who

now understands his rights, will continue to refuse to

fully comply with the agency’s drug-testing program.

Thus, he lacks a good potential for rehabilitation. Mode,

20 M.S.P.R. at 231.

Therefore, despite the favorable mitigating factors,

including the fact that the appellant tested negative for

drug use, and his 11 years of satisfactory service, we

App-41

find that removal was reasonable under the circumstances

of this case.’ See Douglas, 5 M.S.P.R. at 306.

ORDER

This is the Board’s final order in this appeal. See 5

C.F.R. § 1201.113(c).

NOTICE TO APPELLANT

You have the right to request the United States Court of

Appeals for the Federal Circuit to review the Board’s

final decision in your appeal if the court has jurisdiction.

See 5 U.S.C. § 7703(a)(1). You must submit your

request to the court at the following address:

*In finding the penalty of removal warranted in the

instant case, we note the agency’s contention, in its

response to the appellant’s cross-petition for review, that

the administrative judge issued inconsistent decisions as

to mitigation of the penalty in this case and in Nichols v.

Department of Transportation, MSPB Docket No.

SE07528910208 = (Initial Decision, June 28, 1989),

petition for review denied, 43 M.S.P.R. 154 (1989)

(Table). We need not consider this contention here,

however, because we have found that mitigation of the

penalty is not warranted and also because initial

decisions do not have precedential effect. See Clark v.

Department of the Navy, 12 M.S.P.R. 428, 429 (1982).

App-42

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later

than 30 calendar days after receipt of this order by your

representative, if you have one, or receipt by you

personally, whichever receipt occurs first. See 5 U.S.C.

§ 7703(b)(1).

FOR THE BOARD: __/s/ Robert E. Taylor

Robert E. Taylor

Clerk of the Board

Washington, D.C.

App-43

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SEATTLE REGIONAL OFFICE

GERALD B. WATSON, JR., 1) DOCKETNUMBER

) SE07528910074

)

Appellant, )

) DATE: April 21, 1989

v. )

DEPARTMENT OF

TRANSPORTATION,

Agency.

Michael McGrady, Esquire, Eugene, Oregon, for

the appellant.

John J. Callahan and Paul S. Smith, Esquires,

Seattle, Washington, for the agency.

BEFORE

John W. Tapp

Administrative Judge

App-44

INITIAL DECISION

INTRODUCTION

On December 22, 1988, Gerald B. Watson, Jr.,

appealed to the Merit Systems Protection Board (the

Board) from the action of the Federal Aviation

Administration (FAA) removing him, effective

December 4, 1988, from his position as an Electronics

Technician with Airway Facilities Sector Field Office in

Eugene, Oregon. The agency’s action was based on a

charge of "refusal to provide a urine specimen as a part

of a random drug test authorized by Executive Order

12564" and by two agency orders.

The Board took jurisdiction over the appeal pursuant

to 5 U.S.C. §§ 7511(a)(1)(A), 7512(1), 7513(d), and

7701(a). At appellant’s request, a hearing was held on

March 9, 1989, in Portland, Oregon.

For the reasons explained below, the agency action

is MITIGATED to a forty-five (45) day suspension.

App-45

ANALYSIS AND FINDINGS

Legal standard

To sustain an adverse action before the Board, an

agency must establish, by a preponderance of the

evidence, that there is a factual basis for the conduct

charged and that disciplinary action, based on the proven

conduct, promotes the efficiency of the service. See 5

U.S.C. §§ 7513(a) and 7701(c)(1)(B). The "efficiency

of the service" requirement includes a showing that some

disciplinary action is warranted (the "nexus"

requirement) and that the particular penalty is within the

limits of reasonableness. Thus, three distinct elements

must be proven in any adverse action. Douglas vy.

Veterans Administration, 5 M.S.P.R. 280, 302-3, 306

n.67, 307-8 (1981).

Background facts

Around noon on Thursday, August 18, 1988.

appellant was informed by his supervisor, Dean Stead,

that he had been randomly selected for drug testing that

App-46

day.' At that time, appellant had been with the FAA as

an Electronics Technician in Eugene, Oregon, for almost

eleven years.

All of his performance appraisals during that time

had been "fully satisfactory." The test was not related

to appellant’s performance. Mr. Stead had no reason to

suspect that appellant was using drugs. Selection of

appellant for testing was totally random. See stipulations

#1, 2, 12, and 14b. (Board file tab 16).

The test was being conducted pursuant to agency

Orders 3910.1 and 3910.6 (agency tab L), both relating

to maintenance of a drug-free workplace as directed by

Executive Order 12564, 51 Fed. Reg. 32889 (1986),

"Drug-Free Federal Workplace" (agency tab K). (Board

file tab 3). The agency had implemented its program in

September 1987. It provided for random testing of FAA

employees in "safety and security critical positions."

‘Accounts of the events of August 18, 1988, were

consistent with each other. See, e.g., handwritten memo

by Dean Stead (agency file tab G, under Board file tab

3); hearing testimony of appellant (transcript, pp. 46-48);

and stipulation #14 (Board file tab 16). I found no reason

to doubt appellant’s account of his separate activities.

App-47

The drug testing personnel were at lunch when Mr.

Stead talked with appellant at noon on August 18. Stead

told appellant to return at 1:30 p.m.

Appellant checked the telephone book for a lawyer

specializing in constitutional issues and reached Michael

McGrady, his present representative. Mr. McGrady

advised appellant that the test was unlawful under the

Fourth Amendment and that he could refuse to take it.

Appellant agreed and retained McGrady. He returned to

work at approximately 1:00 p.m. to have Stead call

McGrady. McGrady informed Mr. Stead of appellant’s

position.

Very shortly thereafter, at McGrady’s request,

appellant went to the White Bird Clinic in Eugene,

Oregon. At 3:30 p.m., he provided a urine sample. That

sample was sent to the International Clinical Laboratories

(ICL) in Seattle, Washington, where it was tested using

thin layer chromatography. See Declaration of Dr. Teh

Wang. (Board file tab 19). Appellant tested “negative”

(drug free) for twelve specified illegal drugs including

marijuana (cannibinoid) and cocaine. See test results,

appellant’s exhibit E. (Board file tab 13). These results

were given to the agency on August 23, 1988.

(Appellant’s testimony, Tr. 48).

App-48

Also on August 23, 1988, appellant filed for

declaratory and injunctive relief in U.S. District Court.

On August 31, 1988, the agency proposed appellant’s

removal. (Agency tab F).

On October 5, 1988, Mr. McGrady responded in

writing to the proposal on appellant’s behalf. (Agency

tab D). Therein, Mr. McGrady stated, at page 2, that if

appellant did not prevail in his constitutional challenge,

he would "submit to any future random testing required

by the agency."

By “Opinion” dated October 24, 1988, Judge Helen

J. Frye granted the government’s motion to dismiss

appellant’s Federal court challenge on the ground that the

Civil Service Reform Act (CSRA) provided the exclusive

remedy for appellant, including his constitutional claim.

(Agency tab C). By letter dated November 10, 1988, the

agency advised appellant that he was being removed

from employment. (Agency tab B). Donald G. Coones,

Manager of the Portland Airway Facility Sector, was the

proposing and deciding official. At the Board hearing,~

appellant testified that he refused the test, on the advice

of his attorney, because he felt it violated his Fourth

Amendment right to be safe from unreasonable searches.

At the time of the test, he was also concerned about the

possibility of a "false positive” due to unreliable testing

procedures. In this regard, he had been under the

impression that black people, such as himself, were more

App-49

likely to test positive for cannabinoids due to the

presence of melanin in their skin pigmentation. (Tr. 45-

46). Finally, he testified that, based on information he

had acquired since his removal, he would not now refuse

to submit to random testing. (Tr. 55-56).

Proof of conduct

There is no question that appellant refused to

provide a urine specimen as required by the agency’s

drug-testing program. In his reply to the agency’s

removal proposal and in his appeal petition (Board file

tab 1), appellant argued that, by providing a urine

sample to the White Bird Clinic within the time frame

mandated and by giving the ICL test results to the

agency, he essentially complied with the agency’s

requirement and thus there was no "refusal."

Appellant did not press this argument as the appeal

progressed and with good reason. An employee does not

have discretion to substitute his preferred approach for

the agency’s required procedure. While appellant’s

"alternative test" can and should be considered in

assessing the reasonableness of the penalty, it does not

render him innocent of the conduct charged. He did not

provide a urine sample "as a part of" a random drug test

authorized by Executive and agency orders.

App-50

Appellant’s only other defense was that he was not

obligated to comply with the agency’s requirement

because it violated his right’ under the Fourth

Amendment. Employees are required to comply with

agency orders or directives, even if they are invalid, and

challenge them later through appropriate means. See

Gragg v. United States Air Force, 13 M.S.P.R. 296, 299

(1982) (employee does not have the right to disregard an

order merely because there is substantial reason to

believe it is not proper; except in certain limited

circumstances where obedience would pose clear danger,

employee must first comply with the order and then

sub nom. Gragg v. United States, 717 F.2d 1343 (Fed.

Cir. 1983).

Appellant argued that the Gragg rule should not

apply where failure to obey is based on a constitutional

claim. I find no support for that argument. To the

contrary, in at least two cases, the Board has refused to

reach a constitutional claim under similar circumstances.

In Mode v. Tennessee Valley Authority, 20M.S.P.R.

228, 230 (1984), the Board refused to determine whether

a regulation subjecting employees to unannounced

searches was lawful, stating that the Gragg rule applied.

And in Clark v. Department of the Navy, 20 M.S.P.R.

152, 154 (1984) the Board refused to determine the

legality of a search, saying the appellant had no right to

App-51

resist the officers’ request "even assuming the invalidity

of their search."

Finally, appellant argued that the agency should be

estopped from arguing that the Board should not reach

the Fourth Amendment claim because agency attorneys,

including Paul Smith, one of the two agency

representatives for this appeal, argued for dismissal of

appellant’s Federal court action on the ground that the

Board would decide the issue and was, in fact, the

exclusive avenue of relief. I agree that the agency did

make that argument. See "Transcript of Telephone

Conference Proceedings before the Honorable Helen J.

Frye,” pp. 4 and 25, appellant’s exhibit D. (Board file

tab 13).

I do not, however, feel application of estoppel is

appropriate. First, there is no evidence that the agency’s

attorneys knowingly misrepresented the Board’s

jurisdiction or authority. Second, the Board’s case law

was available to appellant’s counsel (and the Court) at

the time of the U.S. District Court proceeding. And,

third, if the Court was either misled and/or erroneous in

its ruling, appellant assumedly may, and more logically

should, return to that forum for relief.

App-52

Thus, I find that appellant dia | efuse to provide a

urine specimen as charged and that his refusal was

actionable regardless of the constitutional validity of the

agency’s random drug testing program.

Nexus

Appellant argued there was no nexus in this case. In

essence, his argument was that 1) the agency had no

reason to believe he was in any way involved with illegal

drugs, 2) there was no evidence of any deficiencies in

his job performance, and 3) regardless, drug testing does

not measure job impairment nor can it establish cause

and effect.’ |

*Appellant also proffered a statement by Dr. Herbert

H. Severson to demonstrate that employers could develop

objective psychological and neuropsychological tests

which actually measure performance impairment, thus

allowing inquiry into the cause. These could be used in

lieu of drug tests which, in effect, presume a cause (drug

use) which may affect performance. See appellant’s

exhibit C. (Board file tab 13). This statement was

originally offered and accepted before I ruled that I

would not address the Fourth Amendment issue. It was

offered to establish there were other less-intrusive and

more directly performance-related means to test for

on-the-job impairment.

App-53

In Mode v. Tennessee Valley Authority, 20M.S.P.R.

at 230-31, the Board rejected a finding of no nexus

where an employee refused to sign a consent to search

form. The presiding official had found that an adverse

action based on an employee’s failure to consent to

something which the agency already had the authority to

do did not promote the efficiency of the service. The

Board reversed this finding, however, Stating that:

there is a causal connection between an

employee’s refusal to comply with what the

agency believes are properly promulgated

instructions and the efficiency of the service.

Failure to follow instructions or abide by

requirements impacts on the agency’s ability to

carry Out its mission. Further, the agency

believes that smooth Operation and

administration of its security functions demands

that every employee agree to the search

provisions, and has effectively made such

agreements a condition of employment. [cite

omitted].

Likewise, in this case, the agency has promulgated

a program, pursuant to an Executive Order mandating a

drug-free workplace, which includes random testing.

This testing has become a condition of employment. The

fact that there may be better and less intrusive means to

achieve the same end does not change that fact. As long

App-54

as the random drug testing program is in place, all

employees must comply with it or be prepared to accept

the consequences of an adverse action for cause which

promotes the efficiency of the service.

Reasonableness of the penalty

In Douglas, 5 M.S.P.R. at 305-6, the Board held

that its role was not to insist on a specific, appropriate

penalty but, rather, to assure that the agency

conscientiously considered all relevant factors and

selected a penalty which was within the tolerable limits

of reasonableness.’ To assist in this review, the Board

provided a number of non-exclusive factors which would

normally be pertinent. After reviewing the relevant

factors in this case, I find that the agency abused its

discretion and that the penalty is beyond the tolerable

limits of reasonableness.

Before turning to the penalty discussion per se, I

must address two issues. The first is the nature of the

offense. In the context of hearing preparations and

settlement discussions, I characterized the offense as a

type of insubordination for purposes of assessing the

reasonableness of the penalty.

*This is essentially an “abuse of discretion standard."

See Beard v. General Services Administration, 801 F.2d

1318 (Fed. Cir. 1986).

App-55

In his Post-Trial Brief, appellant argued that his

conduct did not constitute insubordination. The agency,

in its Post-Trial Brief, argued that appellant’s conduct

was essentially a refusal to report for a fitness-for-duty

exam and relied on cases involving that charge to support

removal.

The parties’ arguments have convinced me that I

erred by analogizing the charge in this case. It was

unnecessary and inappropriate and has led the parties off

on tangents. The agency charged appellant with refusal

to provide a urine sample, not insubordination. I do not

find the agency’s analogy to fitness-for-duty exams

appropriate. Cases in that area involve a refusal to obey

an order or a directive arising from specific problems

with an individual employee’s performance or conduct.

The second issue is whether the penalty of removal

was predetermined. There was certainly a significant

amount of evidence which suggests that the agency has

made an institutional decision, both explicit and implicit,

that removal is the only possible penalty for refusal to

consent to drug testing. This determination apparently

rests on a belief that failure to remove a refusor will

destroy the entire random testing program.

For example, the agency’s Appendix I, Order

3910.1, "Drug Free Departmental Workplace," dated

June 29, 1987 (agency tab L) and the DOT "Drug

App-56

Testing Guide," dated March 31, 1988 (agency exhibit

12, Board file tab 18), essentially set up a program

whereby an employee who tests positive for illegal drugs

will be reassigned to non-safety sensitive duties, referred

for rehabilitation, and returned to work once

rehabilitation is completed with special follow-up testing

for one year. See Appendix I, Chap. III, § 4-G and

Chap. IV, §§ 1 and 5 and "Guide," Chap. X, § IV-A.

No such contingencies exist for an employee who, for

whatever reason, refuses to provide a urine sample. That

employee "will be removed from the Federal service."

See Appendix I, Chap. VI, §1-C. See also "Guide,"

Chap. X, §§ III-B and C.

In his argument to U.S. District Judge Frye, agency

attorney Richard Lepley stated:

I don’t think one is suggesting that plaintiff

[appellant] is using illegal drugs here. What is

at stake is the entire program, the entire non-

particularized suspicion program that Congress,

the President, and the agencies have worked so

long and so hard to develop. If we allow the

plaintiff to avoid random testing or to refuse to

submit to such testing, it will really grind to a

halt the entire program and the only ones we’ll

App-57

test are non-users since any drug use [sic] will

simply refuse to submit because they know they

wouldn’t be penalized. (Transcript, p. 8,

appellant’s exhibit D).

And, in her March 6, 1989, "Declaration," Melissa

J. Allen, Deputy Assistant Secretary for Administration

and national coordinator of the agency’s Drug Free

Departmental Workplace Program, reasons that, if any

employee refuses to comply with drug testing

procedures, management will be unable to ascertain the

employee’s continuing fitness for duty. Thus, she states,

in the last two pages of her declaration, that:

although I am aware that the FAA and other

operating administrations in DOT have issued

employee conduct and discipline regulations

(including tables of penalties), it is important to

point out that the Department, in issuing DOT

Order 3910.1 and the DOT Drug Testing

Guide, intended to limit agency discretion at the

proposing official level to propose disciplinary

action other than removal in the case of a

_ Tefusal to submit to a required drug test...given

- the responsibilities of those employees subject

to random drug testing and the serious nature of

such insubordination, the Department remains

firm in its belief that removal from the Federal

service is warranted as a general rule...even if

App-58

those employees previously had good work

records and no prior discipline.

The agency representatives in this appeal made the same

argument. See agency briefs. (Board file tabs 25 and 26).

Finally, Donald Coones, purportedly the proposing

and deciding official in this case, left me with the clear

impression that he had merely gone through the motions

of decision-making. In response to the agency

representative’s question whether he had "felt constrained

by the program’s requirement for removal," he

responded, "to some point" (Tr. 35-36), but still

maintained he had discretion to select a lesser penalty.

(Tr. 25). I did not find him convincing on this point.

Neither his affect, his demeanor, nor the substance of his

responses suggested that he had in fact exercised any

discretion.

He did not prepare either the proposal letter (Tr. 19)

or the decision letter. (Tr. 23). As to the latter, Coones’

testimony was as follows:

Q . . . What were the circumstances

surrounding its preparation, the background, if

you will?

A_ I really know very little about that as

personal direct knowledge because I was

App-59

waiting on Vern Harkins to provide it. He had

various problems, I think, with getting it

cleared and getting it through whoever had to

approve it.

Coones repeated the standard agency rationale for

removal, beginning as follows:

Well, a major consideration was that this was a

job performance related incident. There’s a

condition of employment within the FAA as an

Airway Facilities Technician. He certifies

facilities. He has to submit to a drug test. And

he, according to all the information that I had,

had not only willfully [sic] refused to submit,

but he -- I’m sorry. I lost my train of thought.

(Tr. 26)