Removal Upheld Despite Dispute

Wednesday, May 07, 2008

In Meza v. Department of Homeland Security, (Fed. Cir. No. 2007-3150, April 23, 2008), the U.S. Court of Appeals for the Federal Circuit upheld the removal of an INS criminal investigator after he allegedly tested positive for cocaine, notwithstanding contrary evidence. Because the Merit Systems Protection Board administrative judge who heard the evidence concluded that the relevant evidence supported the allegation, the court said it could not overturn the decision.

According to the decision: the employee was selected for a random drug test; when his urine tested positive for cocaine, another portion of the same sample was tested at another laboratory, using a more accurate testing method (gas chromatography); and the second portion of the urine sample also tested positive at the second lab. The agency subsequently proposed the employee's removal.

In response to the proposed removal, not only did the employee deny cocaine use, but he presented the results of two independent subsequent urine tests as well as results of drug tests done on hair follicles. The results of all of the tests the employee commissioned were negative. Additionally, the employee commissioned a polygraph test on the issue of cocaine use; the polygraph indicated "no deception" on the employee's denial of drug usage. Nonetheless, the agency removed the employee because of the initial random drug test which had a positive result.

The employee appealed to the MSPB and presented the evidence of his negative drug test results. The employee sought to challenge the agency's evidence that the urine sample was collected and maintained in a proper "chain of custody" and thus was conclusively the employee's sample. Through a motion to compel, the employee received a portion of the actual urine sample tested by the agency so that he could have a DNA test performed to attempt to demonstrate that the positive sample was not actually his. The DNA test was inconclusive.

In the MSPB hearing, the employee argued that the agency failed to prove that the positive urine was his or that it was tested correctly. The administrative judge disagreed, finding that the chain of custody and urine sample were intact. On appeal to the Federal Circuit, the court noted that its review of Board decisions is based on "substantial evidence" which is a lower burden of proof than "preponderance of the evidence." Under the substantial evidence test, even if the court were inclined to believe that the employee never used cocaine, it would nevertheless be bound to accept the AJ's view of the facts as long as the record contained such relevant evidence as a reasonable person might find adequate to support the AJ's conclusions.

In this case, because the employee was unable to point to any flaw in the collection and testing procedure that led to the positive test result, that result stands as substantial evidence of drug use, the court held. The employee's later negative drug tests did not directly contradict the earlier test result because they were based on subsequent sampling, it said. To the extent the employee challenged the AJ's finding that the agency's expert witness on drug testing was more credible than his own, the court noted that the AJ's credibility determination was "virtually unreviewable."

What is interesting to note about this case is that, reading between the lines, it seems as if the court was inclined to believe the employee's denial of drug usage. Specifically, the court noted that the employee volunteered to subject his urine sample to DNA testing which could have been detrimental to the employee if it proved the urine was actually his. Thus, the court stated that the employee actions "strongly suggests that he had nothing to hide." However, the court was constrained to accept the Board's decision because of the lower standard of proof in appeals of MSPB cases.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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