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Grimsrud v. Department of Transportation

United States Court of Appeals, Federal Circuit

August 31, 2018


          Petition for review of the Merit Systems Protection Board in No. NY-0752-14-0340-I-1.

          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.

          Before Prost, Chief Judge, Newman, Lourie, Schall, [1] Dyk, Moore, O'Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit Judges.



          PER CURIAM.

         Petitioner 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, 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.

          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. 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).

         Moreover, 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.

         Grimsrud 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.

         I 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.

         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 retesting. The Fifth Circuit held that "due process required an opportunity by the controllers to test on ...

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