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Holton v. Department of Navy

United States Court of Appeals, Federal Circuit

March 9, 2018

SCOTT HOLTON, Petitioner

         Petition for review of the Merit Systems Protection Board in No. PH-0752-15-0475-I-1.

          James G. Noucas, Jr., Noucas Law Office, Portsmouth, NH, argued for petitioner.

          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.

          Before Newman, Dyk, and O'Malley, Circuit Judges.

          Dyk, Circuit Judge.

         Scott 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.


         Mr. 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 operation.

         On 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.

         Before 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.

         To 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.

         During 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.

         Navy 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.

         Mr. 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.

         Mr. 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.

         Mr. 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 removal.

         Mr. 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.

         Mr. 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 ...

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