Appeal from the July 25, 1991 final decision of the Merit Systems Protection Board. Docket No. SE07528910074.
Before Rich, Newman, and Michel, Circuit Judges.
Gerald B. Watson, Jr. (Watson) petitions for review of the July 25, 1991 final decision of the Merit Systems Protection Board (Board or full Board) in Docket No. SE07528910074, sustaining the Department of Transportation's (DOT's or agency's) removal of Watson for refusing to submit to random drug testing in accordance with Executive Order 12564, DOT Order 3910.1, and Federal Aviation Administration (FAA) Order 3910.6. We affirm.
The full Board found the penalty of removal to be warranted, and thus reversed the Administrative Judge's (AJ's) mitigation of the removal to a suspension. The Board further found that "the record does not support the administrative Judge's finding that the agency had predetermined the penalty."
Watson's primary argument before this court is that the Board erred in not deferring to the AJ's determination that Donald Coones, the agency's deciding official, was not credible on the predetermination issue. Specifically, the AJ found unconvincing Coones' testimony that, although he felt constrained "to some point" by the removal requirement of the agency's drug testing program, he still had discretion to select a lesser penalty. Coones left the AJ "with the clear impression that he had merely gone through the motions of decision-making."
Absent issues of witness credibility and demeanor, the full Board owes no special deference to fact findings of the AJ; the Board may reject the AJ's findings and substitute its own. Jackson v. Veterans Admin., 768 F.2d 1325, 1330-31 (Fed. Cir. 1985). However, "on appeal to this court, when a finding by the presiding official of this nature [respecting credibility] has been reversed by the board, we cannot sustain the board's decision unless the board has articulated a sound reason, based on the record, for its contrary evaluation of the testimonial evidence." Id. at 1331. We hold that in the instant case, the Board has articulated such reasoning. The Board correctly explained that, contrary to the negative inference drawn by the AJ, the fact that Coones could list only two specific circumstances under which he would consider mitigating the removal did not mean that he had failed to consider all relevant mitigating factors, and that he had not exercised his managerial discretion to assign a penalty within tolerable limits of reasonableness. In addition, the Board properly relied upon the affidavit of agency official Melissa Allen, who stated that the initiation of a removal action (the agency's policy with respect to employees in safety- or security- sensitive positions who refuse to submit to random drug testing) is not equivalent to mandating removal. The Board noted Ms. Allen's knowledge of at least two agency employees who, after receiving notices of proposed removal for refusal to submit to random drug testing, ultimately received lesser penalties.
Regardless of whether the Board's final decision differs from the AJ's initial decision, this court evaluates the Board's final decision under the substantial evidence standard. Jackson, 768 F.2d at 1330. Here, the full Board examined all the evidence and concluded that the factors supporting mitigation were simply outweighed by those supporting removal. See Baker v. Department of Health and Human Serv., 912 F.2d 1448, 1456 (Fed. Cir. 1990). The Board found, inter alia, that Watson's position as an electronics technician for the FAA involved "serious safety responsibilities," that Watson's refusal to follow his supervisor's order to submit to drug testing in accordance with the agency's program adversely affected the efficiency of the service, i.e., that there was "nexus," and that Watson lacked a good potential for rehabilitation. Substantial evidence in the record supports each of the Board's findings. Accordingly, we may not disturb the Board's decision sustaining Watson's removal. 5 USC 7703(c).
The Dissent would reverse the full Board's decision on the basis of Watson's reliance upon the majority opinion in Railway Labor Executives' Ass'n v. Burnley, 839 F.2d 575 (9th Cir. 1988) (RLEA I). According to the Dissent, RLEA I declared suspicionless drug testing by government action to be illegal wherefore that became the law in the Ninth Circuit, and was controlling at the time of Watson's refusal to be tested because all events occurred in the Ninth Circuit. The Dissent reasons that removal from federal service should not be based upon an employee's refusal to comply with an unconstitutional order. Though this issue was not briefed by either party, we feel it necessary to respond.
We agree that as a matter of public policy, individuals should be able to act in accordance with what the law is at a particular time and place. However, the state of the law of suspicionless drug testing of government employees at the time of Watson's refusal was plainly unsettled, even in the Ninth Circuit. We accordingly view the asserted reliance of Watson and his attorney on RLEA I as unjustified and unreasonable, for at least the following reasons. First, we find it significant that Watson's refusal to undergo drug testing occurred on August 18, 1988, some two months after the Supreme Court granted certiorari in RLEA I on June 6, 1988. Burnley v. Railway Labor Executives' Ass'n, 486 U.S. 1042 (1988) (No. 87-1555). One swallow does not make a summer and one court's opinion, accepted for review by the Supreme Court, has not settled anything even in one limited geographic area. In addition, we disagree with the Dissent's characterization of the drug testing procedure at issue in Watson's case as having "already been held unconstitutional." It should be noted that the regulations construed in RLEA I, which mandated post-accident drug testing for all involved railroad employees, are not identical either in form or applicability to the FAA regulations applied here, albeit both programs permit testing without particularized suspicion. See RLEA I, 839 F.2d at 577-78 nn.3-4 (text of Federal Railroad Administration regulations); see also Railway Labor Executives' Ass'n v. Skinner, 934 F.2d 1096, 1098 (9th Cir. 1991) (noting that in reversing RLEA I, the Supreme Court "did not address the constitutionality of random drug testing . . ."); National Air Traffic Controllers Ass'n v. Burnley, 700 F. Supp. 1043, 1045 (N.D. Cal. 1988) (noting that in RLEA I, "notably, the government was regulator, rather than, as here, employer . . . .")
The Dissent criticizes the Board's reliance upon Gragg v. United States Air Force, 13 MSPR 296 (1982), which in turn relied upon Walker v. City of Birmingham, 388 U.S. 307 (1967), because neither of these decisions addressed an individual's obligation to comply with procedures already held unconstitutional. Contrary to the Dissent's view, we believe Gragg and Walker support the proposition that, absent circumstances where compliance would involve clear physical danger, regulations and laws must be obeyed, even if unconstitutional, unless obedience would prevent a subsequent legal challenge. It is clear that submission by Watson to drug testing would not have mooted a later legal challenge to the testing program. In our view, the Dissent advocates a new exception to the well-established "obey then grieve" rule for federal employees. At the ...