Petition for review of the Merit Systems Protection Board in
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.,
Prost, Chief Judge, Newman, Lourie, Schall,  Dyk, Moore,
O'Malley, Reyna, Wallach, Taranto, Chen, Hughes, and
Stoll, Circuit Judges.
PETITION FOR PANEL REHEARING AND REHEARING EN BANC
Justin Grimsrud filed a petition for rehearing 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,
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.
Lourie, Circuit Judge, with whom Chen, Circuit Judge, joins,
concurring in the denial of the petition for rehearing en
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. Consideration 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).
that Grimsrud did not raise this issue in the petition for
rehearing underscores the lack of necessity 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.
appealed from the Merit Systems Protection 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 Treatment 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 Testing 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 rejected 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.
respectfully disagree with the dissent's suggestion that
our precedent, MSPB precedent, and the Fifth Circuit'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.
Department of Homeland Security, 275 Fed.Appx. 987 (Fed.
Cir. 2008), we noted that the AJ had granted a motion to
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
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," 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 subsequent decisions demonstrate that no testing beyond
that performed was required here.
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
retesting. The Fifth Circuit held that "due process
required an opportunity by the controllers to test on ...