Holton v. Navy , 884 F.3d 1142 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
SCOTT HOLTON,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2017-1430
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-15-0475-I-1.
______________________
Decided: March 9, 2018
______________________
JAMES G. NOUCAS, JR., Noucas Law Office, Ports-
mouth, NH, argued for petitioner.
KRISTIN MCGRORY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
CLAUDIA BURKE.
______________________
Before NEWMAN, DYK, and O’MALLEY, Circuit Judges.
2 HOLTON v. NAVY
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 proce-
dural error. We affirm.
BACKGROUND
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 supervi-
sor 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. Subma-
rine covers are large, modular structures that are assem-
bled 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.
HOLTON v. NAVY 3
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 land-
ing 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 maneu-
vered around a curve, in order to avoid hitting Building
343, a six-story building. Once the curve had been nego-
tiated, the load was supposed to continue down a straight-
away 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, some-
times 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
4 HOLTON v. NAVY
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 “watch-
ing out for each other . . . [a]nd . . . bringing attention to
what’s going on” in order to prevent any potential prob-
lems. 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 speci-
men, 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 posi-
tive 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 pro-
hibited by Navy Shipyard Portsmouth Instruction
12792.2B. Instruction 12792.2B requires “civilian per-
sonnel refrain from using any illegal drugs,” J.A. 251, and
then specifically lists “cannabis (marijuana)” as a prohib-
ited drug. J.A. 261. On March 31, 2015, following his
first positive test result, the Navy placed Mr. Holton on
HOLTON v. NAVY 5
paid, nonduty status. On May 15, 2015, the Navy pro-
posed 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 super-
visor 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
6 HOLTON v. NAVY
unless it is: “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c).
DISCUSSION
I
Mandatory drug testing conducted by or required by
the federal government is a search within the meaning of
the Fourth Amendment. No warrant is required, but the
test must be reasonable to pass constitutional muster.
Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656,
665 (1989); Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S.
602, 616-33 (1989).
Skinner involved challenges to drug-testing regula-
tions issued by the Federal Railroad Administration. A
group of railway trade unions sued to have the regula-
tions declared unconstitutional under the Fourth
Amendment. Skinner, 489 U.S. at 616-19. The regula-
tions included mandatory blood and urine tests of em-
ployees involved in train accidents to determine if they
were using illegal drugs. Id. at 608-12.
The Supreme Court held that post-accident drug test-
ing, performed without a warrant, can be a reasonable
intrusion into an employee’s privacy rights, upholding two
subparts of the regulations. Id. at 624-34. The first part
required railroads to test employees “directly involved” in
certain severe accidents, including accidents resulting in
death or property damage exceeding $500,000. Id. at 609.
The Court also upheld a second part permitting railroads
to conduct testing “after a reportable accident or incident,
where a supervisor has a ‘reasonable suspicion’ that an
employee’s acts or omissions contributed to the occurrence
or severity of the accident or incident . . . or . . . in the
event of certain specific rule violations.” Id. at 611. Both
HOLTON v. NAVY 7
parts were considered “reasonable within the meaning of
the Fourth Amendment.” Id. at 634. A variety of factors
supported the reasonableness of the drug testing, among
them, (1) the “limited” privacy intrusions occasioned by
the testing procedures, id. at 624; (2) the diminished
expectation of privacy that attaches to employment in an
“industry that is regulated pervasively to ensure safety,”
id. at 627; and (3) the government’s “compelling” interest
in railway safety, id. at 633, an interest that could not
always be protected by testing only upon individualized
suspicion, id. at 629-34.
The Navy’s drug testing instruction here parallels the
second subpart of the regulations upheld in Skinner. The
Navy’s instruction authorized post-accident drug testing
of employees after an accident resulting in death or
hospitalization, or property damage in excess of $10,000,
if a supervisor “reasonably suspect[s]” that an employee’s
acts “caused or contributed to an accident or unsafe
practice.” J.A. 268. The relevant regulation, Navy Ship-
yard Portsmouth Instruction 12792.2B provides:
Post-Accident Testing of employees, based on
a police report, suspected of having caused or con-
tributed to an accident if there is a death or per-
sonal injury resulting in hospitalization, or if
there is property damage in excess of $10,000.
(1) Criteria. Employees may be subject to
testing when, based upon circumstanc-
es of an on-the-job accident or unsafe,
on-duty, related activity, their actions
are reasonably suspected of having caused
or contributed to an accident or unsafe
practice that meets either of the following
criteria:
(a) The accident or unsafe practice results in
a death or personal injury requiring ad-
mission to a hospital, or
8 HOLTON v. NAVY
(b) The accident or unsafe practice results in
damage to government or private property
estimated to be in excess of $10,000.
J.A. 267-68 (emphasis added). Neither party disputes
that this Navy regulation is consistent with Skinner.
The reasonable-suspicion inquiry under the Fourth
Amendment and under the regulation is an objective test.
See, e.g., Ashcroft v. al-Kidd, 563 U.S. 731, 738-39 (2011).
It depends only upon “the factual information [the super-
visor] had when he made the determination, and not on
the basis of additional information that subsequently was
disclosed or which . . . could have [been] discovered by
further inquiry.” Garrison v. Dep’t of Justice, 72 F.3d
1566, 1568 (Fed. Cir. 1995). It is correspondingly well
established in the context of so-called Terry stops that
“the fact that the officer does not have the state of mind
which is hypothecated by the reasons which provide the
legal justification for the officer’s action does not invali-
date the action taken as long as the circumstances,
viewed objectively, justify that action.” Whren v. United
States, 517 U.S. 806, 813 (1996) (quoting Scott v. United
States, 436 U.S. 128, 138 (1978)); accord Devenpeck v.
Alford, 543 U.S. 146, 153 (2004). We think that this rule
applies in this particular context as well and that the
subjective state of mind of the official ordering drug
testing is irrelevant. 1 We thus consider whether the
circumstances surrounding the accident, taken objective-
ly, would cause one to “reasonably suspect” that Mr.
Holton caused or contributed to the accident.
1 Courts, of course, can inquire into the subjective
motivation of officials in order to ascertain whether there
was an improper motivation, such as racial animus. See,
e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 46
(2000). No such allegation is made here.
HOLTON v. NAVY 9
The question of reasonable suspicion is not limited to
situations in which the employee took an affirmative
action that caused or contributed to the accident. The
constitutional standard also includes an employee’s
failure to take an action that could have prevented the
accident. Indeed, the failure to act was a relevant factor
in the regulations upheld in Skinner, where the Court
authorized that “[b]reath or urine tests, or both, may be
ordered (1) after a reportable accident or incident, where
a supervisor has a ‘reasonable suspicion’ that an employ-
ee’s acts or omissions contributed to the occurrence or
severity of the accident or incident.” 489 U.S. at 611
(emphasis added). The failure to act must be judged by
the scope of the employee’s job duties.
Here, Mr. Holton argues that the Navy’s “crane team
concept” was not a permissible approach to define the
scope of those subject to drug testing. Mr. Holton con-
tends that, because the Navy relied on this “crane team
concept,” his subsequent drug test was improper. Under
the “crane team concept,” all members of the crane team
share responsibility for ensuring the safe and successful
performance of any crane operation, and all individuals
either succeed or fail as a team to accomplish this goal.
The Navy argued that this concept made it reasonable to
suspect that every member of the team, including Mr.
Holton, caused or contributed to the accident.
Designating responsibility for the accident to all team
members and testing all members of the crane team is
essentially the “test all involved employees” approach
discussed in Skinner. See 489 U.S. at 609 & n.2. The
Court has only permitted a “test all involved employees”
approach when precipitated by the most severe accidents,
which in Skinner was defined as accidents involving a
fatality, the release of hazardous materials resulting in
evacuation or injury, or damage amounting to at least
$500,000. See id. With respect to less severe accidents,
such as the one at issue here, the Supreme Court only
10 HOLTON v. NAVY
approved testing regimes that involve assessment, in the
language of the applicable Navy regulation, when there is
“reasonabl[e] susp[icion]” that the individual employee
“caused or contributed to the accident or unsafe practice.”
J.A. 268.
Mr. Holton argues that the Navy lacked “reasonable
suspicion” that he “caused or contributed” to the accident
under the objective standard. Having delegated responsi-
bility to the rigger in charge, Mr. Holton was at least 150
yards away from the crane at the time of the accident
and, thus, could not see the crane’s boom and was not
actively involved in the moving of the crane. He points
out that PNS Code 740 Policy #52 does not require the
supervisor to remain with the crane during the evolution.
The crane team supervisor is even authorized to “leave
the job site for short periods of time.” J.A. 54.
Mr. Holton further argues that as a supervisor, his
decision to remove himself during the crane evolution was
required by the “blue and gold do not mix” policy. Under
the “blue and gold” policy, set forth in PNS Code 740
Policy #51, the overall supervisor is generally instructed
to “separate yourself from the [rigger in charge],” so as to
avoid a situation where the chain of command is unclear.
J.A. 53.
Mr. Holton is correct that Policy #52 did not require
him to remain with the crane, but he is incorrect that
Policy #51 forbade it. Policy #51 provides for separation
between the supervisor and rigger in charge “unless [they]
are both at the working end of the crane or the area of
most risk.” J.A. 53 (emphasis added). As Mr. Thayer
testified, and as discussed above, the rotation around the
building was the most complicated, and dangerous, part of
the lift. Therefore, under the relevant policy, it would not
have been improper for Mr. Holton to remain with the
rigger in charge when guiding the crane through the
curve, as it was the area of most risk. Mr. Thayer testi-
HOLTON v. NAVY 11
fied that he would have preferred Mr. Holton to stay with
the crane, and that if Mr. Holton had been present during
the move, he might have been able to prevent the acci-
dent. 2
While Mr. Holton may not have violated the Ship-
yard’s rules with respect to his positioning during the
crane evolution, Mr. Holton’s job was to do what was
necessary to ensure that the crane operation was per-
formed safely and successfully. PNS Policy #51 specifical-
ly expects all supervisors to “[s]top and correct improper
rigging” and “[e]nsure the crane team is operating safely
and meeting standards.” J.A. 53. Given Mr. Holton’s
overall responsibility for the lift, it was reasonable for the
Navy to suspect in the immediate aftermath of the crane
accident that the incident was, at least in part, caused by
something the team supervisor either did or failed to do.
We agree with the Board that “[b]ecause the record re-
2 When asked how he had come to the conclusion
that Mr. Holton could have prevented the accident, Mr.
Thayer responded:
Had [Holton] been with the crane and in that role
of Supervisor watching the entire operation as a
whole, not having the responsibility for handling a
tagline or signaling a crane, not being distracted
by other things – Supervisors that’s what they do.
They step back and they look at the big picture. I
believe that he could have seen that load, not be-
ing centered on the rail and prevented this.
Q: He could have seen the load.
A: Yes.
Q: But you’re speculating on that. Aren’t you?
A: Yes.
J.A. 429. That Mr. Thayer might have engaged in
speculation is not inappropriate, because the relevant
standard only requires reasonable suspicion.
12 HOLTON v. NAVY
flects that [Mr. Holton] instructed the crane team imme-
diately before the accident and was still actively involved
in the operation when the accident occurred, we find that
it was reasonable for the agency to suspect that he . . .
caused or contributed to the accident.” Holton, 123
M.S.P.R. at 699.
To be sure, at the time that testing was ordered, Mr.
Holton’s supervisor could not have known for certain
whether Mr. Holton had caused or contributed to the
accident. But drug testing, if it is to be meaningful, must
occur very soon after the accident and preferably on the
same day. Skinner itself recognized the importance of
prompt testing. In Skinner, the Court declined to impose
a warrant requirement on drug testing, partially because
“alcohol and other drugs are eliminated from the blood-
stream at a constant rate.” 489 U.S. at 623. The Court
recognized that “blood and breath samples taken to
measure whether these substances were in the blood-
stream when a triggering event occurred must be ob-
tained as soon as possible.” Id.
In Skinner, the Court acknowledged that, given the
short timeframe, reasonable suspicion will often be based
on the incomplete information assembled at the time of
the testing decision. Id. at 631. The relevant standard is
whether it is reasonable to suspect that the employee
caused or contributed to the accident, not that there was
necessarily such a connection. The Board did not err in
concluding that the test here met the applicable constitu-
tional and regulatory standard.
II
Mr. Holton’s remaining arguments do not provide a
basis to overturn the Board’s decision.
Mr. Holton argues that he did not receive adequate
written notice of the drug test. The Fourth Amendment
imposes no such requirement. Other circuits have found
HOLTON v. NAVY 13
it reasonable to subject employees to drug testing without
formal notice. In Carroll v. City of Westminster, the court
held that “knowledge that [an employee] is subject to
random drug tests is of no small importance. Although
‘the precise time of the test will be unknown, the fact that
[employees] are subject to this search procedure will not
be a surprise,’ and thus ‘[t]he privacy intrusion conse-
quently is less severe.’” 233 F.3d 208, 211 (4th Cir. 2000)
(second and third alterations in original) (quoting Ruther-
ford v. City of Albuquerque, 77 F.3d 1258, 1262 (10th Cir.
1996)); cf. Nat’l Treasury, 489 U.S. at 667-77, 676 n.4
(finding that random drug tests are permitted for certain
employees, provided that employees have general notice
that they are subject to the testing requirement). Mr.
Holton does not contend that he was unaware of the drug
test policy and prohibitions of the Naval Yard. The Navy
Shipyard Portsmouth Instruction 12792.2B, issued on
November 8, 2010, advised all employees on the policies
and procedures related to drug testing at the Shipyard.
Even though the Fourth Amendment does not require
written notice in advance, Mr. Holton points out that the
applicable drug test instruction requires that the Navy
“will notify the employee of the test and issue the specific
written notice that the employee is being tested because
of the accident or unsafe practice.” J.A. 269. Although
Mr. Holton received oral notice of the drug test, he did not
receive written notice of testing until March 13, 2015, two
days after the accident. The Board held that the lack of
notice was harmless error, as it did not change the out-
come of the test.
Mr. Holton contends that, if provided written notice,
he may have declined to take the drug test. While Mr.
Holton posits that the requirement for written notice
prior to testing avails the employee of the opportunity to
refuse drug testing, we think that the notice is aimed at
ensuring that the employee will be present at the drug
test and be able to request deferral under appropriate
14 HOLTON v. NAVY
circumstances. The purpose of notice is not to provide an
opportunity to challenge the propriety of the test, a claim
that may be raised as a defense to discipline. Indeed, if
Mr. Holton had refused the drug test, he would have been
subject to a variety of disciplinary actions, detailed in
Navy Shipyard Portsmouth Instruction 12792.2B. The
failure to provide written notice was ultimately not harm-
ful error.
Mr. Holton points out that the regulation requires
drug testing be “based on a police report,” J.A. 267, and
argues that “Thayer did not review a police report as no
such report existed.” Petitioner Br. 30-31. However, the
Board found, and we agree, that the Police Desk Journal
was sufficient to meet the police report requirement.
Finally, Mr. Holton’s rights were not violated merely
because the deciding official was the same individual who
authorized administration of the drug test. In DeSarno v.
Department of Commerce, this court held that “[t]he law
does not presume that a supervisor who proposes to
remove an employee is incapable of changing his or her
mind upon hearing the employee’s side of the case.” 761
F.2d 657, 660 (Fed. Cir. 1985); see also Jolly v. Dep’t of the
Army, No. 2017-1919, 2017 WL 3980536, at *3 (Fed. Cir.
Sept. 11, 2017) (unpublished decision); Franco v. Dep’t of
Health & Human Servs., 852 F.2d 1292, 1988 WL 54653,
at *1 (Fed. Cir. 1988) (unpublished table decision); Hanley
v. Gen. Servs. Admin., 829 F.2d 23, 25 (Fed. Cir. 1987).
We do not presume that a supervisor, in this case Mr.
Banks, who authorized a drug test, is incapable of chang-
ing his mind regarding the propriety of that authoriza-
tion.
CONCLUSION
Because we find that there was reasonable suspicion
that Mr. Holton, through his actions or inactions, contrib-
uted to the accident, we find that the Board did not err in
concluding that the Navy was justified in requiring that
HOLTON v. NAVY 15
Mr. Holton submit to drug testing. Neither Mr. Holton’s
constitutional rights nor the standard of the regulation
was violated by the test. Nor did the Navy prejudicially
fail to follow the required procedures. Mr. Holton’s sub-
sequent dismissal was not contrary to law, arbitrary and
capricious, or unsupported by substantial evidence.
AFFIRMED