Scott Holton v. Department of the Navy
2016 MSPB 39
| MSPB | 2016Background
- Appellant was a WS-10 Rigger Supervisor at Portsmouth Naval Shipyard who supervised a crane team during a lift on March 11, 2014; the crane boom struck a building causing ~ $30,000 in damage.
- Agency invoked its post-accident drug-testing program and required all crane-team members, including appellant, to provide urine samples the evening of the accident.
- Appellant’s urine tested positive twice for marijuana; he was placed in paid nonduty status and later removed effective July 8, 2015.
- Appellant appealed, challenging the validity of the specimen collection, alleging procedural defects (late written notice, missing paperwork), asserting Fourth Amendment and due process violations, and claiming the deciding official was biased.
- The administrative judge found the sample collection and chain of custody reliable, any procedural errors harmless, and removal reasonable; the Board affirmed on review, addressing constitutional and due process claims and modifying the initial decision to discuss the police-report issue.
Issues
| Issue | Holton's Argument | Navy's Argument | Held |
|---|---|---|---|
| Validity of drug test / specimen collection and chain of custody | C.P. improperly combined insufficient samples; collection procedure invalid | Collector followed routine procedures; appellant signed seals/checklist; chain of custody preserved | Board deferred to AJ credibility findings; test valid and chain of custody established; appellant failed to show harmful error |
| Agency procedural compliance (advance written notice, paperwork) | Agency failed to give advance written notice and to compile required documents | Notice given 2 days after testing; pre-test scene assessment performed; any paperwork omission harmless | Failure to give advance written notice and gather all paperwork was harmless error; did not alter outcome |
| Fourth Amendment / reasonableness of suspicion for post-accident testing | Appellant delegated lift and did not cause accident; testing without individualized suspicion unconstitutional | Post-accident testing is reasonable under Skinner where limited discretion, safety interest, and diminished privacy apply; crane lift posed grave safety risks | Board held testing reasonable under Skinner and Von Raab: agency had reasonable suspicion appellant could have caused/contributed to accident; testing constitutional |
| Due process / biased deciding official and right to notice before nonduty status | Selection of same official who authorized testing as deciding official showed intolerable bias; failure to get advance notice of Crane Team Concept selection denied process | Deciding official’s prior involvement did not create intolerable risk of unfairness; appellant received full notice and opportunity to contest removal; paid nonduty status is a revocable privilege | No due process violation: paid nonduty status revoked permissibly; appellant received required notice and chance to respond; alleged bias insufficient to show intolerable risk of unfairness |
Key Cases Cited
- National Treasury Employees Union v. Von Raab, 489 U.S. 656 (searches for certain government employees may be reasonable without individualized suspicion)
- Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (post-accident drug testing may be reasonable under balancing test)
- Loudermill v. Cleveland Bd. of Educ., 470 U.S. 532 (tenured public employees entitled to notice and opportunity to respond before deprivation of property interest)
- Egan v. Department of the Navy, 484 U.S. 518 (no property interest in discretionary privileges like security clearances)
- Haebe v. Department of Justice, 288 F.3d 1288 (deference to credibility findings based on witness demeanor)
- Hillen v. Department of the Army, 35 M.S.P.R. 453 (factors for resolving credibility disputes)