Scott Holton v. Department of the Navy, 2016 MSPB 39

Background

Appellant (WS-10 Rigger Supervisor) oversaw a crane team that, on March 11, 2014, struck a building with the crane boom causing about $30,000 in damage.
Agency initiated a police Desk Journal and, under its post-accident testing procedures (Crane Team Concept), ordered urine drug tests for all crane-team members that evening; appellant provided a sample and signed collection seals and a checklist.
The appellant’s sample tested positive for marijuana on two tests; he was placed in paid, nonduty status and later removed effective July 8, 2015 for illegal drug use.
Administrative judge upheld the removal, finding the sample valid, procedural deviations (late written notice, documentation) harmless, and removal penalty reasonable; the judge did not address some constitutional claims below.
On petition for review, appellant reasserted sample-collection and procedural challenges, and argued Fourth and due process (bias of deciding official and lack of notice) constitutional violations; Board addressed those issues.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of urine sample / chain of custody	Holton: collector combined two insufficient specimens; sample invalid	Agency: collector followed routine procedures; appellant signed seals and checklist	Held: Agency proved chain of custody and sample validity; credibility of collector upheld
Procedural errors in testing (advance notice, documentation)	Holton: agency failed to provide required advance written notice and compile required documents	Agency: notice provided 2 days after test; any documentation gaps were harmless given facts known at scene	Held: Procedural lapses were harmless error and did not likely change outcome
Fourth Amendment / reasonableness of suspicionless post-accident testing	Holton: agency lacked individualized reasonable suspicion because he delegated duties and did not cause the accident	Agency: post-accident testing fits Skinner framework; lifting large load implicates compelling safety interest; Crane Team Concept reasonably suspects supervisors	Held: Testing reasonable under Fourth Amendment analogues; agency had reasonable suspicion to test Holton
Due process / biased deciding official and right to notice before being placed in nonduty status	Holton: deciding official who authorized testing was predisposed; advance process rights violated when placed in nonduty status without notice	Agency: nonduty paid status is a revocable privilege, not a property right; appellant received full notice/opportunity before removal; involvement of deciding official did not create intolerable risk of unfairness	Held: No due process violation—paid nonduty status did not implicate property interest in reporting to work; removal notice and response rights were provided; no intolerable bias shown

Key Cases Cited

National Treasury Employees Union v. Von Raab, 489 U.S. 656 (Sup. Ct.) (government drug testing is a Fourth Amendment search and must be reasonable)
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (Sup. Ct.) (upheld post-accident and reasonable-suspicion testing where public-safety interests and regulatory context justify intrusion)
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (Sup. Ct.) (tenured public employees have property interest in continued employment and are entitled to notice and opportunity to respond)
Department of the Navy v. Egan, 484 U.S. 518 (Sup. Ct.) (no property interest in discretionary privileges like security clearances)
Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir.) (deference to credibility findings based on witness demeanor)
Hatley v. Department of the Navy, 164 F.3d 602 (Fed. Cir.) (government may subject employees responsible for others’ safety to suspicionless testing)
Stone v. Federal Deposit Insurance Corp., 179 F.3d 1368 (Fed. Cir.) (employees entitled to statutory, regulatory, and procedural protections in adverse actions)