for review of the Merit Systems Protection Board in No.
G. Noucas, Jr., Noucas Law Office, Portsmouth, NH, argued for
Kristin McGrory, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent. Also represented by Chad A.
Readler, Robert E. Kirschman, Jr., Claudia Burke.
Newman, Dyk, and O'Malley, Circuit Judges.
Holton petitions for review of the decision of the Merit
Systems Protection Board ("Board") affirming his
removal. Mr. Holton was employed as a rigger supervisor for
the Navy at the Portsmouth Naval Shipyard. He was dismissed
after testing positive for a prohibited substance in a drug
test administered in the aftermath of a crane accident.
Because there was reasonable suspicion that Mr. Holton caused
or contributed to the accident, the drug test was properly
administered and did not violate Mr. Holton's
constitutional rights or the standard of the applicable
regulation. We also conclude that Mr. Holton has not
established the existence of any prejudicial procedural
error. We affirm.
Holton was formerly employed by the Department of the Navy as
a rigger supervisor at the Portsmouth Naval Shipyard
("PNS"). Mr. Holton had been employed at the
shipyard since January 8, 2007. He was first employed as an
apprentice rigger helper and then a journeyman rigger for two
years. He was promoted to worker leader and then to rigger
supervisor. As supervisor of the crane team, Mr. Holton had
the responsibility for the safety of those under his
supervision, as well as for ensuring the safety of the
vessels and structures at the Naval Yard during the crane
March 11, 2015, the petitioner's crew was using a portal
crane to move submarine covers from the upper staging area to
the landing area of Dry Dock 2. Submarine covers are large,
modular structures that are assembled around docked
submarines to provide shelter and protection. Each modular
unit weighed roughly 60, 000 pounds and measured
approximately 48 feet long by 8 feet wide. In total, this
operation required moving more than 100 modular units.
commencing the crane evolution, Mr. Holton briefed the crew
and gave control over the crane to the authorized rigger in
charge. Mr. Holton then left the crane, so that he could
supervise preparation of the landing area with two other
riggers from the crane team. From this position, Mr. Holton
could not see the crane's boom as it moved. Before March
11, Mr. Holton's crew had performed approximately twelve
to fifteen evolutions following the same route around
Building 343, with the same crane operator (who had thirty
years of service) and without any accidents or damage.
reach its destination the load had to be maneuvered around a
curve, in order to avoid hitting Building 343, a six-story
building. Once the curve had been negotiated, the load was
supposed to continue down a straightaway until it reached the
landing place in the dry-dock area for delivery to the docked
submarine. The curve around Building 343 was the most
dangerous aspect of this particular crane operation. It was
dangerous because the curve was so tight. In fact, the
crane's travel motors often had trouble propelling the
crane around it, sometimes making it necessary to wet the
rails down to reduce friction.
the movement around this curve on March 11, the crane boom
struck Building 343, causing roughly $30, 000 in damage. This
occurred because the crane traveled too far on the inside of
the curve, resulting in the load's being "20 to 30
feet away from being centered on the crane rail . . . well
away from where it should have been." J.A. 409. This
caused an imbalance in weight, which resulted in the
crane's boom hitting Building 343 and becoming lodged in
the building, six stories above the ground.
Shipyard Portsmouth Instruction 12792.2B allows post-accident
drug testing of employees, after an accident causing damage
in excess of $10, 000, when "their actions are
reasonably suspected of having caused or contributed to an
accident or unsafe practice." J.A. 268. Trevor Thayer,
acting party head of the Lifting and Handling Department,
investigated the accident and determined whether drug testing
was warranted. Based on his conclusions that a police log had
been generated and that the damage exceeded $10, 000, Mr.
Thayer obtained permission from the executive director of the
Shipyard, Mr. Banks, to drug test the entire crane team. In
deciding whether or not to test the entire crane team, Mr.
Thayer referenced the Navy's "crane team concept,
" concluding that the accident was the result of a
failure by the entire team as a whole. Under this "crane
team concept, " crane team members are responsible for
"watching out for each other . . . [a]nd . . . bringing
attention to what's going on" in order to prevent
any potential problems. J.A. 415.
Thayer orally informed all the members of the crane team,
including Mr. Holton, that they were going to be drug tested
due to the severity of the accident. Mr. Holton took the
test, signed the seals for his urine specimen, and also
signed a checklist certifying that the drug-testing
contractor's employee had taken the proper steps in the
collection process. Two days after Mr. Holton provided his
urine sample, the Navy issued him written notice explaining
that the reason for the drug test was the March 11 accident.
Holton's sample was tested twice and found positive for
marijuana both times. Mr. Holton's test result was 150
times greater than the allowable marijuana testing cutoff of
15 ng/ml. Marijuana is specifically prohibited by Navy
Shipyard Portsmouth Instruction 12792.2B. Instruction
12792.2B requires "civilian personnel refrain from using
any illegal drugs, " J.A. 251, and then specifically
lists "cannabis (marijuana)" as a prohibited drug.
J.A. 261. On March 31, 2015, following his first positive
test result, the Navy placed Mr. Holton on paid, nonduty
status. On May 15, 2015, the Navy proposed his removal, and
after Mr. Holton responded both orally and in writing, the
Executive Director removed him, effective July 8, 2015.
Holton appealed his dismissal to the Board, and, on March 18,
2016, the administrative judge ("AJ") issued an
initial decision upholding Mr. Holton's removal. The AJ
decided that the Navy had properly selected Mr. Holton for
testing, given that he was the first-line supervisor of the
employees operating the crane at the time of the accident.
The AJ found that Mr. Holton's drug test was valid and
that the Navy had established its charge of illegal drug use,
and rejected Mr. Holton's affirmative defense of harmful
procedural error. In particular, the AJ found that the
Navy's failure to provide Mr. Holton with advance written
notice of why he was being tested, as required by its
drug-testing regulation, was a harmless error, because it did
not change the outcome of the test. The AJ thus sustained the
Holton filed a petition for review with the Board. On
November 2, 2016, the Board affirmed Mr. Holton's
removal. Holton v. Dep't of the Navy, 123
M.S.P.R. 688, 691 (M.S.P.B. 2016). The Board determined that
Mr. Holton's drug test was not a violation of the
Shipyard Instruction or Mr. Holton's Fourth Amendment
rights. Id. at 694-701. The Board agreed that it was
reasonable for the Navy to suspect that Mr. Holton had caused
or contributed to the accident because Mr. Holton had briefed
the crane team immediately before the accident and was still
actively involved in the operation when the accident
occurred. Id. The Board also held the Navy had not
prejudicially violated Mr. Holton's procedural rights.
Id. at 699-701.
Holton filed a timely petition for review with our court. We
have jurisdiction subject to 5 U.S.C. § 7703(b)(1)(A).
We affirm the decision of the Board unless it is: "(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having ...