Federal Circuit Denies Petition For Rehearing In Drug Test Case

An employee who was removed from federal employment as a result of a positive drug test appealed his removal. After the removal was sustained by a Merit Systems Protection Board (“MSPB”) administrative judge and a panel at the Federal Circuit Court of Appeals, the employee petitioned the appeals court for panel rehearing and rehearing en banc. On August 31, 2018, the appeals court denied his petitions, with two appeals court judges dissenting from the majority’s decision.

The employee was removed from his position as an Air Traffic Control Specialist following a positive drug test. After the employee appealed his removal, an MSPB administrative judge sustained the removal, rejecting the employee’s challenges to the removal based on alleged procedural errors in the specimen collection process, negative drug test results performed on later specimens, and his polygraph test. The employee appealed the administrative judge’s decision to the full Board. Because the two Board members could not agree on a disposition, the administrative judge’s decision became final. The employee then appealed the decision to the United States Court of Appeals for the Federal Circuit. A panel of judges affirmed the administrative judge’s decision. The employee petitioned the appeals court for panel rehearing and rehearing en banc. The petition for panel rehearing was denied by the panel that heard the appeal.

Circuit Judge Newman, joined by Circuit Judge Wallach, wrote a dissenting opinion arguing that the petition for rehearing en banc should be granted to determine whether the Agency violated the employee’s due process rights by refusing to allow him to re-test the urine sample that tested positive for drugs. The dissent stated that the employee, upon learning his urine tested positive for cocaine, “promptly went to an independent laboratory (LabCorp) for blood, urine, and hair follicle tests for cocaine—all were negative. He passed a polygraph test asserting that he never took cocaine.” Nevertheless, the dissent noted, the agency fired the employee. When in discovery at MSPB the employee requested an “aliquot” of the sample for independent re-testing of the sample used to remove him for both identity and presence of cocaine, the agency responded that it was not in possession of the sample, and that the sample no longer existed. The dissent further noted that after the employee moved the MSPB administrative judge to suppress evidence related to the sample for spoliation, the agency responded that it “discovered, upon further investigation, that the specimens do still exist at the laboratories, in storage.” However, the agency refused to produce the samples for re-testing, relying on “HHS Mandatory Guidelines” which it claimed only entitled the employee to records relating to the results of his drug tests, and not the specimen samples.

Circuit Judge Wallach issued a separate dissent as well to argue the employee’s rights are violated if he must simply take the agency’s assurances with no other support in the record, and to add that the possibility of sample contamination had not been eliminated on the record before the appeals court.

Circuit Judge Lourie, joined by Circuit Judge Chen, in a separate opinion concurring with the majority’s denial of the petition for rehearing en banc, found that the due process question identified by the dissent did not meet the standard for en banc review under Federal Rule of Civil Procedure 35(a) because it was not “necessary to secure or maintain the uniformity of the court’s decisions” and did not “involve[] a question of exceptional importance.” The concurring judges also found that the employee was not entitled to additional testing, and that due process could not entitle the employee to “unlimited testing.”

For the above stated reasons, the United States Court of Appeals, on a vote of 10-2, denied the employee’s petition for rehearing en banc.

Read the full case: Grimsrud v. Department of Transportation.

This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.