Federal Circuit: No Harmful Error in Drug Testing Case
After the Department of the Navy drug-tested him following a crane accident, a Rigger Supervisor with the Department of the Navy argued that his subsequent removal for illegal drug use violated due process because the Agency did not follow its own regulation and provide him advance written notice of the purpose of the drug test.
The employee was informed orally on the evening of the accident that he, along with all members of the crane team, would be drug-tested due to the severity of the accident, which caused approximately $30,000 in damage after a crane struck a building. The employee took the drug test, and tested positive for marijuana. Two days after the employee submitted his urine sample, the agency issued him a written notice informing him that the reason for the drug test was the crane accident. Two months later, the agency proposed the employee’s removal for illegal drug use, and eventually removed the employee after affording him an opportunity to respond. The employee appealed to the Merit Systems Protection Board, and an MSPB administrative judge sustained the removal. The employee appealed to the full Board, which affirmed the administrative judge’s initial decision. Thereafter, the employee appealed the decision to the United States Court of Appeals for the Federal Circuit. On March 9, 2018, the appeals court affirmed the decision.
At the outset of its discussion of the appeal, the appeals court observed that mandatory drug testing conducted by or required by the federal government is a search within the meaning of the Fourth Amendment. Therefore, the court stated, although “[n]o warrant is required…the test must be reasonable to pass constitutional muster.” The appeals court cited the Supreme Court’s decision in Skinner v. Ry. Labor Execs.’ Ass’n., 489 U.S. 602 (1989), where the Court upheld regulation subparts that required mandatory testing of employees directly involved with severe railroad accidents where there is a “reasonable suspicion” that an employee’s acts or omissions contributed to the occurrence or severity of the accident or incident. In Skinner, the Court held that post-accident drug testing, performed without a warrant, can be a “reasonable intrusion into an employee’s privacy rights.”
In this case, the appeals court held that the Navy’s drug testing instruction paralleled the second subpart of the regulations upheld in Skinner in that it authorized post-accident drug testing of employees after an accident resulting in death or hospitalization, or property damage in excess of $10,000, if a supervisor “reasonably suspect[s]” that an employee’s acts “caused or contributed to an accident or unsafe practice.” The appeals court agreed with the Board that the agency had reasonable suspicion that the employee caused or contributed to the accident, even thought that reasonable suspicion may have been based on the “incomplete information assembled at the time of the testing decision.”
The appeals court also addressed the employee’s argument that the agency failed to follow its own regulations when it did not provide him written notice of the upcoming drug testing and the reason for the test. The employee argued that the requirement for written notice provides the employee the opportunity to decline the test, and that had he been provided written notice, he may have declined to take the drug test. The appeals court disagreed with the employee’s interpretation of the requirement for written notice, and held that the notice was aimed at ensuring “that the employee will be present at the drug test and be able to request deferral under appropriate circumstances.” Because the appeals court found that the purpose of written notice was not to provide an opportunity to challenge the propriety of the test, it held that the agency’s failure to provide written notice was “ultimately not harmful error.”
For the above stated reasons, the United States Court of Appeals for the Federal Circuit affirmed the employee’s removal.
Read the full case: Holton v. Navy
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.