Grimsrud v. Department of Transportation , 902 F.3d 1364 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
JUSTIN GRIMSRUD,
Petitioner
v.
DEPARTMENT OF TRANSPORTATION,
Respondent
______________________
2017-1737
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-14-0340-I-1.
______________________
ON PETITION FOR PANEL REHEARING AND
REHEARING EN BANC
______________________
JOHN SILVERFIELD, Naples, FL, filed a petition for
panel rehearing and rehearing en banc for petitioner.
DOMENIQUE GRACE KIRCHNER, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, filed a response to the petition
for respondent. Also represented by CHAD A. READLER,
ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-MILLER.
______________________
2 GRIMSRUD v. DEPARTMENT OF TRANSPORTATION
Before PROST, Chief Judge, NEWMAN, LOURIE, SCHALL, 1
DYK, MOORE, O’MALLEY, REYNA, WALLACH, TARANTO,
CHEN, HUGHES, and STOLL, Circuit Judges.
LOURIE, Circuit Judge, with whom CHEN, Circuit
Judge, joins, concurs in the denial of the petition for
rehearing en banc.
NEWMAN, Circuit Judge, with whom WALLACH, Circuit
Judge, joins, dissents from the denial of the petition for
rehearing en banc.
WALLACH, Circuit Judge, dissents from the denial of the
petition for rehearing en banc.
PER CURIAM.
ORDER
Petitioner Justin Grimsrud filed a petition for rehear-
ing and rehearing en banc. A response to the petition was
invited by the court and filed by respondent Department
of Transportation. The petition was first referred as a
petition for rehearing to the panel that heard the appeal,
and thereafter the petition for rehearing en banc was
referred to the circuit judges who are in regular active
service. A poll was requested, taken, and failed.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition for panel rehearing is denied.
(2) The petition for rehearing en banc is denied.
(3) The mandate of the court will issue on September
7, 2018.
1 Circuit Judge Schall participated only in the de-
cision on the petition for panel rehearing.
GRIMSRUD v. DEPARTMENT OF TRANSPORTATION 3
FOR THE COURT
August 31, 2018 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
United States Court of Appeals
for the Federal Circuit
______________________
JUSTIN GRIMSRUD,
Petitioner
v.
DEPARTMENT OF TRANSPORTATION,
Respondent
______________________
2017-1737
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-14-0340-I-1.
______________________
LOURIE, Circuit Judge, with whom CHEN, Circuit Judge,
joins, concurring in the denial of the petition for rehearing
en banc.
I concur in the decision of the court not to rehear this
appeal en banc. The dissent suggests that we grant
rehearing to determine whether the Department of
Transportation (“DOT”) violated Justin Grimsrud’s due
process rights by not producing an aliquot of his urine
specimen to him for identity and cocaine testing. Consid-
eration of that question in this case, however, does not
meet the standard for en banc review because it is not
“necessary to secure or maintain the uniformity of the
court’s decisions,” and does not “involve[] a question of
exceptional importance.” Fed. R. App. P. 35(a).
2 GRIMSRUD v. DEPARTMENT OF TRANSPORTATION
Moreover, that Grimsrud did not raise this issue in
the petition for rehearing underscores the lack of necessi-
ty of en banc review in this case. The full court need not
reconsider an unraised issue that does not satisfy the
standard for en banc review.
Grimsrud appealed from the Merit Systems Protec-
tion Board’s (“MSPB”) decision sustaining his removal as
an Air Traffic Control Specialist following a positive drug
test. Prior to the events at issue in this appeal, Grimsrud
entered into an agency-approved and monitored Treat-
ment and Rehabilitation Plan for alcohol abuse pursuant
to which he was regularly screened for alcohol and drug
use. In accordance with DOT Order 3910.1D and the
Mandatory Guidelines for Federal Workplace Drug Test-
ing Programs, 73 Fed. Reg. 71,858 (Nov. 25, 2008) (“HHS
Mandatory Guidelines”), Grimsrud’s urine was collected
by a trained collector and split into two bottles (A and B).
Following notification that Bottle A tested positive for
cocaine, Grimsrud asked that Bottle B be tested. Bottle B
was tested by a different independent laboratory and also
tested positive. DOT removed Grimsrud based on the
positive drug test results. On appeal to the MSPB, the AJ
sustained his removal following a hearing. The AJ reject-
ed his challenges based on alleged procedural errors in
the specimen collection process, negative drug test results
performed on specimens obtained at later dates, and his
polygraph test for lack of credibility. That is the history
of this case.
I respectfully disagree with the dissent’s suggestion
that our precedent, MSPB precedent, and the Fifth Cir-
cuit’s decision in Banks v. FAA, 687 F.2d 92 (5th Cir.
1982), demonstrate Grimsrud’s entitlement to additional
testing of his urine specimen for drugs and DNA. We
have never held that due process requires such testing.
In sustaining the employee’s removal in Meza v. Depart-
ment of Homeland Security, 275 F. App’x 987 (Fed. Cir.
2008), we noted that the AJ had granted a motion to
GRIMSRUD v. DEPARTMENT OF TRANSPORTATION 3
compel the agency to provide an aliquot of the urine
specimen for DNA testing, but the propriety or necessity
of the AJ’s grant of the motion was not passed on by the
panel. In Storm v. Department of Army, while the MSPB
recognized that “an agency’s procedural error may consti-
tute harmful error when it effectively destroys, or pre-
cludes an appellant from acquiring, the only available
evidence by which he can show that the agency likely
would have reached a different conclusion in the absence
of its error,” it did not find any such error had occurred.
64 M.S.P.R. 14 (1994) (citing Banks, 687 F.2d at 96). In
Ivery v. Department of Transportation, 96 M.S.P.R. 119(2004), the MSPB did not sustain the employee’s removal
where the agency failed to follow the prescribed split-
specimen protocol. It is undisputed that the agency
followed that protocol in Grimsrud’s case. Banks, which
was decided prior to the implementation of the split-
specimen protocol, is factually distinguishable, and sub-
sequent decisions demonstrate that no testing beyond
that performed was required here.
Assuming arguendo that we should apply Banks, the
DOT complied with its requirements in this case. In
Banks, two air traffic controllers contested their removal
based on a single positive drug test conducted by a private
laboratory that had not preserved the samples for retest-
ing. The Fifth Circuit held that “due process required an
opportunity by the controllers to test on their own behalf
to evaluate the accuracy of the government-sponsored
tests.” 687 F.2d at 96.
In contrast, Grimsrud’s specimen was not destroyed,
and he availed himself of the agency’s procedure permit-
ting additional drug testing of the specimen following a
positive result. Grimsrud could have selected any HHS
certified laboratory to perform the testing on Bottle B.
See DOT Order 3910.1D, Chp. VII, ¶ 8 (J.A. 504) (permit-
ting “an employee with a verified positive . . . test result”
to “request[] that another HHS certified laboratory be
4 GRIMSRUD v. DEPARTMENT OF TRANSPORTATION
used, other than the laboratory under contract to DOT for
the purposes [of] split-specimen analysis” to test Bottle
B). The parties stipulated that the laboratory personnel
who tested Bottles A and B were qualified and followed
proper procedures in testing and processing the specimen.
J.A. 12–13. Thus, Grimsrud had “an opportunity . . . to
test [the sample] on [his] own behalf to evaluate the
accuracy of the government-sponsored tests.” Banks, 687
F.2d at 96. Due process does not require unlimited test-
ing, and Banks did not hold to the contrary.
Moreover, subsequent case law counsels against ap-
plying the reasoning in Banks to find a due process viola-
tion here. In California v. Trombetta, the Supreme Court
held that due process “does not require that law enforce-
ment agencies preserve breath samples in order to intro-
duce the results of breath-analysis tests at trial” to prove
the defendant was driving while intoxicated. 467 U.S.
479, 491 (1984). The Court explained that “[e]ven if one
were to assume that the Intoxilyzer results in this case
were inaccurate and that breath samples might therefore
have been exculpatory, it does not follow that respondents
were without alternative means of demonstrating their
innocence.” Id. at 490.
Similarly, Grimsrud had “alternative means of
demonstrating [his] innocence.” Id. He took advantage of
those means by presenting evidence and cross-examining
witnesses at the MSPB hearing, including challenging the
chain of custody in an attempt to raise doubt as to wheth-
er the specimen was his and “attempt[ing] to raise doubts
in the mind of the factfinder whether the test was proper-
ly administered.” Id.; see also Trevino v. Dahm, 2 F.3d
829, 832 (8th Cir. 1993) (“As long as the defendant has an
adequate opportunity to impeach the reliability of a
scientific test, and the qualifications of the person admin-
istering the test, due process is not implicated by a state’s
good faith failure to preserve a sample for independent
testing.”); United States v. Boyd, 961 F.2d 434, 437 (3d
GRIMSRUD v. DEPARTMENT OF TRANSPORTATION 5
Cir. 1992) (holding no due process violation based on
routine destruction of urine specimen prior to defendant’s
ability to independently test it where defendant “had
other means by which to challenge the evidence”). The
AJ’s rejection of Grimsrud’s fact-specific challenges and
credibility determinations are not an appropriate subject
for en banc review.
Due process also does not require the agency to make
Grimsrud’s specimen available for DNA testing. The
relevant regulations, HHS Mandatory Guidelines, and
DOT drug testing procedures make clear that DNA test-
ing of DOT urine specimens is not permitted. 49 C.F.R.
§ 40.13(c) (“[A] laboratory is prohibited from making a
DOT urine specimen available for a DNA test or other
types of specimen identity testing.”); Procedures for
Transportation Workplace Drug and Alcohol Testing
Programs, 65 Fed. Reg. 79,462, 79,484 (Dec. 19, 2000)
(“[T]he rule forbids laboratories and other parties from
making a DOT specimen available for DNA testing.”);
HHS Mandatory Guidelines, 73 Fed. Reg. at 71,861
(explaining that the guidelines “prohibit DNA testing on a
specimen”); see also Swaters v. Dep’t of Transp., 826 F.3d
507, 512 (D.C. Cir. 2016) (“The meaning of § 40.13(c) is
clear on its face: ‘a laboratory is prohibited from making a
DOT urine specimen available for a DNA test or other
types of specimen identity testing.’”).
DOT’s rationale for not allowing DNA testing is rea-
sonable. DOT has “two main reasons” for this policy:
(1) “a properly completed chain of custody conclusively
establishes the identity of a specimen”; and (2) “the only
thing a DNA test can do is to determine, to a high level of
probability, whether a specimen and a reference specimen
were produced by the same individual.” Procedures for
Transportation Workplace Drug and Alcohol Testing
Programs, 65 Fed. Reg. at 79,484. As the D.C. Circuit
explained:
6 GRIMSRUD v. DEPARTMENT OF TRANSPORTATION
even if a DNA test were conclusively to prove the
positive sample does not belong to [employee], the
DoT could not determine whether the mismatch
was due to an error in handling or to the tested
employee’s substitution of someone else’s urine in
the original sample, the reference sample, or both.
Because a properly preserved chain of custody
renders the first possibility very unlikely, and the
second possibility would arise only if a guilty em-
ployee was trying to defeat the test, the DoT quite
reasonably—in view of the risk to airline safety—
wants to avoid reinstating a pilot’s license on the
basis of a DNA mismatch.
Swaters, 826 F.3d at 512.
The D.C. Circuit has thus upheld DOT’s policy of
denying the requests of employees who test positive for
drugs to obtain the urine sample for DNA testing, includ-
ing rejecting a due process challenge. Id. at 514; cf. Dist.
Attorney’s Office for Third Judicial Dist. v. Osborne, 557
U.S. 52, 72 (2009) (rejecting request to “recognize a free-
standing right to DNA evidence”). The D.C. Circuit’s
analysis in Swaters is persuasive, especially in light of the
Supreme Court’s analysis in Trombetta.
The dissent asserts that this case involves a matter of
exceptional importance. While certainly it does involve a
matter of exceptional importance to Grimsrud, in the
context of a court of appeals deciding whether to rehear a
case en banc on an issue concerning how many times he is
entitled to have his sample retested, and what means will
be used to establish that the sample is his, it does not.
For the foregoing reasons, I concur in the decision of
the court not to rehear this appeal en banc.
United States Court of Appeals
for the Federal Circuit
______________________
JUSTIN GRIMSRUD,
Petitioner
v.
DEPARTMENT OF TRANSPORTATION,
Respondent
______________________
2017-1737
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-14-0340-I-1.
______________________
NEWMAN, Circuit Judge, with whom WALLACH, Circuit
Judge, joins, dissenting from denial of the petition for
rehearing en banc.
The court has declined to rehear this case, although it
endorses a practice that violates due and fair process.
Here the fired employee sought to confirm that an incrim-
inating specimen of urine — the basis for his being fired
— was indeed his urine. The agency refused to permit the
test, but nonetheless implemented the penalty. I write
because of the importance of administrative practices on
whose fairness public employees can rely. The govern-
ment’s obligation of fair dealings with its employees is
beyond compromise. Here the disregard of routine evi-
dentiary process cannot be condoned.
2 GRIMSRUD v. DEPARTMENT OF TRANSPORTATION
Mr. Grimsrud failed a routine drug test. On learning
that his urine tested positive for cocaine, Mr. Grimsrud
stated that he never took cocaine. He promptly went to
an independent laboratory (LabCorp) for blood, urine, and
hair follicle tests for cocaine—all were negative. He
passed a polygraph test asserting that he never took
cocaine.
The DOT fired Mr. Grimsrud, relying solely on the
positive urine test. Mr. Grimsrud requested an aliquot of
the sample for retesting. The DOT responded: “The
Agency is not in possession of the specimen samples.
Upon information and belief, the specimen samples no
longer exist.” J.A.1288 (DOT’s Response to Discovery,
Oct. 6, 2014). Mr. Grimsrud then moved the MSPB to
suppress evidence for spoliation. The DOT then told the
MSPB that it “discovered, upon further investigation, that
the specimens do still exist at the laboratories, in stor-
age,” 1 J.A.1434 (“Agency Response to Appellant’s Motion
to Dismiss/Suppress Evidence Based on Spoliation of
Evidence,” Oct. 30, 2014). The DOT then refused to
produce the sample for retesting.
The DOT stated that Mr. Grimsrud is not entitled to
retest the specimen, but is entitled only to the results of
the tests conducted by the DOT. See “Agency Response to
Appellant’s Motion to Dismiss/Suppress Evidence Based
on Spoliation of Evidence,” Oct. 30, 2014. (J.A.1432)
(“Pursuant to HHS Mandatory Guidelines, Appellant is
not entitled to the specimen samples but is only entitled
to records relating to the results of his drug tests which
have been provided.”). The DOT also stated that Mr.
Grimsrud never filed a formal motion to compel; Mr.
Grimsrud responded that he had relied on the agency’s
1 The DOT denied to the MSPB that it had told
Grimsrud that the sample no longer existed—although
this written statement is in the record.
GRIMSRUD v. DEPARTMENT OF TRANSPORTATION 3
prior response that the specimen samples no longer exist.
The DOT also stated that the split specimen in Bottle B
had been tested by an independent laboratory and that
this was all that he was entitled to, pursuant to the HHS
Mandatory Guidelines and 49 C.F.R. § 40.13. Mr.
Grimsrud stated concern about the chain of custody, and
argued that he should be allowed to have the sample
tested to determine whether the urine specimen (and sole
evidence supporting his firing) is actually his.
In its briefs, the DOT stresses issues such as Mr.
Grimsrud’s reported refusal of “rehabilitation.” The DOT
does not explain its refusal to permit re-testing of the
specimen, other than to say that Grimsrud had no basis to
challenge the chain of custody and no right to access the
specimen for retesting.
The question is not whether the DOT can fire an em-
ployee who used drugs. The question is whether the DOT
procedure, in refusing to permit retesting of the urine
sample that was the basis for firing the employee, meets
the fundamentals of due process. Precedent has well
considered this aspect, and uniformly rejects the govern-
ment’s position. In Banks v. F.A.A., 687 F.2d 92 (5th Cir.
1982), the court referred to “the most rudimentary stand-
ards of due process” when the test specimens were not
preserved and there was no other evidence of drug use:
In the instant case, by contrast, the presence or
absence of cocaine in the samples alone deter-
mined the ultimate issue. The results of the la-
boratory tests were the only credible evidence
supporting the FAA’s charges. While it may be
difficult to mark an exact balance between rele-
vance and the attendant procedural burdens in an
administrative proceeding, even the most rudi-
mentary standards of due process require here
that the claimants have access to the solitary
piece of incriminating evidence. Perhaps, the
4 GRIMSRUD v. DEPARTMENT OF TRANSPORTATION
government’s failure to preserve and produce such
relevant and material evidence might be excusa-
ble upon a showing of good faith and reasonable
effort. But the FAA’s procedures show no attempt
to preserve this evidence. The resulting denial of
opportunity to Banks and Faulkner to prepare a
credible defense requires us to hold that the re-
sults of the test be suppressed.
Id. at 96. 2 Other rulings are in conformity.
The MSPB has held that it is harmful error for an
agency to deny access to the only evidence by which an
employee may clear his name. See Ivery v. Dep’t of
Transp., No. DA-0752-02-0424-I-1, 2004 WL 1191655(M.S.P.B. May 10, 2004), No. DA-0752-02-0424-C-1, 2006
WL 1724068 (M.S.P.B. June 22, 2006) (“However, an
agency’s procedural error may constitute harmful error
when it effectively destroys, or precludes an appellant
from acquiring, the only available evidence by which he
can show that the agency likely would have reached a
different conclusion in the absence of its error.”); Storm v.
Dep’t of Army, No. AT-0752-93-0265-I-1, 1994 WL 501334(M.S.P.B. Mar. 31, 1994) (“[A]n agency’s procedural error
may constitute harmful error when it effectively destroys,
or precludes an appellant from acquiring, the only availa-
ble evidence by which he can show that the agency likely
would have reached a different conclusion in the absence
of its error.”). 3 In Meza v. Department of Homeland
2 My colleagues in concurrence state that the DOT
complied with the Banks holding. Conc. Op. at 3. How-
ever, Banks “required that the samples themselves be
made available to the controllers.” 687 F.2d at 96. Here
the DOT refused to make the sample available.
3 The concurrence is correct that the MSPB found
no error in Storm, for there the agency gave the appellant
access to the sample to conduct DNA testing, “but the
GRIMSRUD v. DEPARTMENT OF TRANSPORTATION 5
Security, 275 F. App’x 987, 990 (Fed. Cir. 2008), the
Administrative Judge compelled DHS to provide Meza
with an aliquot of a positive urine sample so that DNA
testing and additional analyses could be performed.
The only basis for the charge of cocaine use is Mr.
Grimsrud’s urine sample. The DOT first denied the
sample’s existence, and then refused access upon discover-
ing that the sample indeed existed. These responses
cannot be justified, though my colleagues ratify this
procedure. As stated in Banks, rudimentary standards of
due process cannot be discarded by the federal employer.
The DOT regulations appear to set a curious stand-
ard. 49 C.F.R. § 40.13(e) states:
(e) No one is permitted to change or disregard the
results of DOT tests based on the results of non-
DOT tests. For example, as an employer you
must not disregard a verified positive DOT drug
test result because the employee presents a nega-
tive test result from a blood or urine specimen col-
lected by the employee’s physician or a DNA test
result purporting to question the identity of the
DOT specimen.
The regulations also appear to prohibit verification of
employee identity by DNA testing. Section 40.13(c)
states:
appellant placed conditions upon the proposed DNA
testing that the agency found unacceptable. The deciding
official testified that, if the Armed Forces Institute of
Pathology had performed a DNA test on the appellant’s
urine sample and the results of that test had indicated
that the sample was not the appellant’s, he would not
have taken disciplinary action against the appellant.”
Storm, 1994 WL 501334, at *23–24 (internal citation and
footnote omitted).
6 GRIMSRUD v. DEPARTMENT OF TRANSPORTATION
(c) [Employer Responsibilities]. You must not per-
form any tests on DOT urine or breath specimens
other than those specifically authorized by this
part or DOT agency regulations. For example,
you may not test a DOT urine specimen for addi-
tional drugs, and a laboratory is prohibited from
making a DOT urine specimen available for a
DNA test or other types of specimen identity test-
ing.
The record before us does not explain why “a laboratory is
prohibited” from making a specimen available for “identi-
ty testing.” I also note the restriction in 49 C.F.R.
§ 40.153(e):
(e) You [the medical review officer] must tell the
employee that additional tests of the specimen
(e.g., DNA tests) are not authorized.
Perhaps there is a role for limiting debate about drug
testing, but fundamental rights cannot be limited. See
Reno v. Flores, 507 U.S. 292, 301–02 (1993) (“Respond-
ents’ ‘substantive due process’ claim relies upon our line
of cases which interprets the Fifth and Fourteenth
Amendments’ guarantee of ‘due process of law’ to include
a substantive component, which forbids the government
to infringe certain ‘fundamental’ liberty interests at all,
no matter what process is provided, unless the infringe-
ment is narrowly tailored to serve a compelling state
interest.”); Stone v. F.D.I.C., 179 F.3d 1368, 1376 (Fed.
Cir. 1999) (“Our system is premised on the procedural
fairness at each stage of the removal proceedings. An
employee is entitled to a certain amount of due process
rights at each stage and, when these rights are under-
mined, the employee is entitled to relief regardless of the
stage of the proceedings.”).
Denying an employee a reasonable opportunity to es-
tablish that he was wrongfully charged, by denying access
to the sole evidence on which the government acted,
GRIMSRUD v. DEPARTMENT OF TRANSPORTATION 7
raises major due process concerns. The Court has re-
ferred to “the area of constitutionally guaranteed access to
evidence.” United States v. Valenzuela–Bernal, 458 U.S.
858, 867 (1982). Precedent is clear; see, e.g., Brady v.
Maryland, 373 U.S. 83, 87 (1963) (when evidence is
material to guilt or punishment, withholding such evi-
dence violates due process); California v. Trombetta, 467
U.S. 479, 485 (1984) (“A defendant has a constitutionally
protected privilege to request and obtain from the prose-
cution evidence that is either material to the guilt of the
defendant or relevant to the punishment to be im-
posed.”); 4 United States v. Agurs, 427 U.S. 97 (1976)
4 The concurrence states that Trombetta supports
the denial of access to the only evidence against Mr.
Grimsrud. However, Trombetta leaves no doubt that
there is a constitutional right to “evidence that is either
material to the guilt of the defendant or relevant to the
punishment to be imposed.” 467 U.S. at 485. The Court
stated that had respondents submitted to urine or blood
tests, “the State automatically would have preserved
urine and blood samples for retesting by respondents.”
Id. at 490 n.11. Contrary to the concurrence’s suggestion,
Trombetta does not support a rule that an agency may
deny an employee access to the only incriminating evi-
dence against him.
Similarly, Trevino v. Dahm, 2 F.3d 829 (8th Cir. 1993)
does not support the withholding of access to evidence.
Trevino relates to the “opportunity to impeach the relia-
bility of a scientific test, and the qualifications of the
person administering the test,” id. at 832, issues not here
raised. Nor are these issues raised in United States v.
Boyd, 961 F.2d 434 (3d Cir. 1992), where the court held
that the government did not exhibit bad faith when its
independent laboratory destroyed the urine specimen
pursuant to its standard procedure. Id. at 437. In Mr.
8 GRIMSRUD v. DEPARTMENT OF TRANSPORTATION
(“[T]here are situations in which evidence is obviously of
such substantial value to the defense that elementary
fairness requires it to be disclosed even without a specific
request.”). This classic safeguard of due process is no less
entrenched for civil proceedings having punitive conse-
quences, such as loss of one’s job.
By routine evidentiary practice, the DOT should have
permitted Mr. Grimsrud to obtain a test of his urine
specimen for his identity as well as for cocaine. To the
extent the DOT regulations support withholding of this
evidence, the regulations cannot be sustained. I cannot
agree with my colleagues’ position that this violation of
due process “does not involve a question of exceptional
importance.” Conc. Op. at 1.
From the court’s denial of rehearing to consider these
issues, I respectfully dissent.
Grimsrud’s case the DOT refused to produce the speci-
men, even after reporting that it was not destroyed.
United States Court of Appeals
for the Federal Circuit
______________________
JUSTIN GRIMSRUD,
Petitioner
v.
DEPARTMENT OF TRANSPORTATION,
Respondent
______________________
2017-1737
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-14-0340-I-1.
______________________
WALLACH, Circuit Judge, dissenting from the denial of the
petition for rehearing en banc.
I concur with Judge Newman’s dissent in full. How-
ever, I dissent separately to add that the possibility of
sample contamination simply has not been eliminated on
this record. No agency is infallible, and to simply take
their assurances with no other support in the record is a
direct violation of Petitioner Justin Grimsrud’s constitu-
tional rights. See Leo Shane III, Troop Drug Dismissals
Suspended Due to Lab Contamination Concerns, MILITARY
TIMES (June 21, 2018), available at
https://www.militarytimes.com/news/pentagon-congress
/2018/06/21/defense-department-suspends-all-drug-
dismissals-over-lab-contamination-concerns/ (reporting on
the Department of Defense temporarily suspending all
troop dismissals related to drug and alcohol misuse in
2 GRIMSRUD v. DEP’T OF TRANSP.
response to a recent Air Force Drug Testing Laboratory
study confirming concerns over laboratory drug testing
procedures and cross-contamination due to spillage dur-
ing transit); see, e.g., Helferty v. United States, 113 Fed.
Cl. 308, 312 (2013) (reviewing a decision of the Board for
Correction of Naval Records and documenting a service
member’s submitted evidence of record that discussed a
prior cross-contamination at the same Naval drug labora-
tory at which the service member’s urine tested positive
for cocaine), aff’d, 586 F. App’x 586 (Fed. Cir. 2014);
United States v. Luke, 63 M.J. 60 (C.A.A.F. 2006) (setting
aside a decision of the Navy-Marine Corps Court of Crim-
inal Appeals and remanding for an evidentiary hearing
given the fact that testing performed on the accused’s
DNA sample may have been insufficient where U.S. Army
Criminal Investigative Laboratory drug test had poten-
tially been “cross-contaminated and/or switched [with
other] samples within and between [certain] cases” and
subject to other forensic misconduct).