[00:00:00] Speaker 06:
The next case is appeal number 22-2166, Lanier versus Air Force.

[00:00:06] Speaker 06:
Counsel for Appellant is Ms.

[00:00:08] Speaker 06:
Smith.

[00:00:09] Speaker 06:
You've reserved five minutes of rebuttal time.

[00:00:11] Speaker 06:
Is that accurate?

[00:00:12] Speaker 06:
Yes, Your Honor.

[00:00:13] Speaker 06:
You may proceed.

[00:00:14] Speaker 07:
Good morning.

[00:00:16] Speaker 07:
May it please the Court, I'm Bonnie Michelle Smith and I'm Counsel for Chris Lanier.

[00:00:22] Speaker 07:
Chris Lanier is in the third row in a brown shirt.

[00:00:26] Speaker 07:
And he has gotten up numerous times to go to the restroom because he is type 1 diabetic, which is at issue in this case.

[00:00:34] Speaker 07:
Type 1 diabetic?

[00:00:35] Speaker 07:
Yes.

[00:00:38] Speaker 00:
Type 2 is the type 1.

[00:00:43] Speaker 07:
You're right.

[00:00:43] Speaker 07:
You read the report better than me, Your Honor.

[00:00:45] Speaker 07:
It's type 2.

[00:00:48] Speaker 07:
He's type 2 diabetic.

[00:00:52] Speaker 07:
During COVID on August 26, 2020, Chris Lanier was called in to test for a urine sample, which is routine at Robin's Air Force Base.

[00:01:06] Speaker 07:
And he tested positive for methamphetamines.

[00:01:16] Speaker 07:
the Air Force, the ALGA, and the MSPB got this one wrong.

[00:01:22] Speaker 07:
And they got this one wrong because we're arguing about strict liability, because it's strict liability.

[00:01:30] Speaker 07:
If you test for drugs, it's either yes or no, right?

[00:01:36] Speaker 07:
It's either yes or no.

[00:01:38] Speaker 07:
He tested positive, and so that's it.

[00:01:46] Speaker 07:
When Mr. Lanier signed his notice that he would be subject to drug testing, that was for a WG260408.

[00:01:53] Speaker 07:
At the time he was tested, he was a WG260410.

[00:02:00] Speaker 07:
He never signed a new form stating that he would be drug tested for the WG260410.

[00:02:09] Speaker 07:
When he was drug tested, the test did not follow proper protocol.

[00:02:17] Speaker 01:
Can we talk about the diabetes where you started?

[00:02:20] Speaker 01:
The timing with which that came up, if I understand correctly, was there was no allusion to it until maybe your own client's testimony in front of the ALJ and then the medical records to support that predate the close of the record but were not produced until you got all the way up to the board.

[00:02:41] Speaker 01:
Do I have that right?

[00:02:43] Speaker 01:
Yes, you do have that right, Your Honor.

[00:02:45] Speaker 01:
So if that's right,

[00:02:47] Speaker 01:
How can we say the board was wrong to say that that evidence was untimely?

[00:02:56] Speaker 07:
Many times when you're diabetic, you don't even know you're diabetic.

[00:02:59] Speaker 07:
It's a silent killer in this country.

[00:03:02] Speaker 07:
CDC in 2021, which is the time period when he got hired, estimated that 38.4 million people in the United States are diabetic and they don't even know it.

[00:03:11] Speaker 00:
Right.

[00:03:11] Speaker 00:
But he testified that he found out

[00:03:15] Speaker 00:
because of blood tests, blood work that was done on, I think, May 25th, 2021.

[00:03:20] Speaker 00:
He found out that he was diabetic.

[00:03:22] Speaker 00:
And we have the evidence in the record that shows what the blood tests, the A1C and so forth, showed.

[00:03:30] Speaker 00:
And it wasn't until later that year in October that the hearing was held before the hearing exam by the AJ.

[00:03:39] Speaker 00:
And at that point, those records were not produced.

[00:03:43] Speaker 00:
He testified that he was diabetic, but no records were produced.

[00:03:48] Speaker 00:
And the AJ said, in the absence of records, I'm not going to find that that was true.

[00:03:55] Speaker 00:
But the question comes up, why weren't the records produced?

[00:03:59] Speaker 00:
At the hearing, you had six months from the time that they were generated.

[00:04:03] Speaker 07:
At that particular time, Mr. Lanier was represented by the union.

[00:04:08] Speaker 00:
Right.

[00:04:09] Speaker 07:
And so he was represented by the union.

[00:04:12] Speaker 07:
They didn't produce those, but that doesn't mean then he couldn't reopen the record to add those records for his... But he didn't reopen the record.

[00:04:22] Speaker 00:
He took a petition for review to the full board, and the full board will not consider evidence that was not presented before the AJ.

[00:04:35] Speaker 00:
And they said in this case they wouldn't.

[00:04:37] Speaker 00:
That's just part of their procedure.

[00:04:39] Speaker 00:
You can't add evidence that the

[00:04:41] Speaker 00:
PFR stage.

[00:04:43] Speaker 07:
You're right, your honor, which is why we go back that the agency didn't follow the rules on the test.

[00:04:49] Speaker 07:
We may not, we may have to concede that we can't, we can't, we all know he was diabetic.

[00:04:56] Speaker 07:
He was diabetic for whatever reason.

[00:04:58] Speaker 07:
It's not in the record.

[00:04:59] Speaker 00:
At least as of May of 2021, not necessarily, uh, in previous August when he was tested.

[00:05:08] Speaker 00:
Correct.

[00:05:09] Speaker 07:
Yeah, you're correct, your honor.

[00:05:12] Speaker 07:
So if you can't bring the records in legitimately because you can't reopen the record, then you heart back then to get to the right result that the agency failed to follow the rules.

[00:05:27] Speaker 07:
is strict liability.

[00:05:28] Speaker 07:
They failed to follow the rules.

[00:05:29] Speaker 07:
They say, well, it wasn't harmful error, because it doesn't matter if there's an initial.

[00:05:35] Speaker 07:
You're still going to test positive.

[00:05:37] Speaker 07:
No, the rules are the rules.

[00:05:39] Speaker 07:
That's why he got fired, because the rules are the rules.

[00:05:42] Speaker 06:
So you argue that the drug testing sample was over-diluted by the lab.

[00:05:46] Speaker 06:
Is that also an argument that you're making?

[00:05:47] Speaker 06:
Yes, Your Honor.

[00:05:49] Speaker 06:
What's the evidence that you have to support that the lab itself made that over-dilution?

[00:05:55] Speaker 06:
Can you point us to something in the record?

[00:05:58] Speaker 07:
I believe that was that with the testimony of Dr. Figueroa, the medical examiner from Fort Meade.

[00:06:05] Speaker 07:
Let's see.

[00:06:12] Speaker 00:
Well, in A49, Supplemental Appendix 49, at the bottom of the page, there's a reference by, I think this was a memorandum prepared by Colonel Drost,

[00:06:23] Speaker 00:
She says that she refers to the overdilution, but said not by the lab that it was overdiluted, but it was overdiluted in the sample.

[00:06:35] Speaker 00:
Right?

[00:06:36] Speaker 00:
Right.

[00:06:36] Speaker 00:
Right.

[00:06:37] Speaker 00:
Which suggests that the sample was provided not by the lab, but by your client.

[00:06:44] Speaker 00:
That suggests the overdilution occurred before the sample found its way to the lab.

[00:06:51] Speaker 00:
And we don't have any evidence, so far as I can see, that the overdilution, regardless of who it was caused by, would have produced a false positive.

[00:07:00] Speaker 00:
It seems more likely that dilution would produce a false negative.

[00:07:04] Speaker 00:
Isn't that right?

[00:07:05] Speaker 07:
Correct.

[00:07:07] Speaker 07:
So then you go back, still on the harmful error that

[00:07:11] Speaker 07:
Numerous places were not signed on.

[00:07:14] Speaker 07:
You have to have a chain of custody on that specimen.

[00:07:17] Speaker 07:
You've got to check off exactly who got it when.

[00:07:21] Speaker 07:
And the agency says, well, it doesn't matter that you didn't check it off because that didn't really produce any error in the report.

[00:07:29] Speaker 01:
I think they also say it's undisputed, but correct me if I'm wrong, that that was your client's sample and that it tested positive.

[00:07:38] Speaker 01:
I know you weren't counsel, but counsel agreed to those two facts, did they not?

[00:07:44] Speaker 01:
Yes.

[00:07:45] Speaker 01:
But then how can it, even if the chain of custody was messed up, how can that even matter if Mr. Lanier's counsel agreed at the end of the day that's his sample and it tested positive?

[00:07:58] Speaker 07:
The sample can be corroborated that that can be your sample, but if the procedure is not followed, then

[00:08:06] Speaker 07:
it should be canceled and dismissed as part of the evidence.

[00:08:10] Speaker 07:
His diabetes report is canceled and not part of the record because it didn't come in in a timely manner.

[00:08:19] Speaker 07:
So it's not important because it didn't come in in a timely manner.

[00:08:23] Speaker 07:
The agency didn't sign off an initial at every point of where they were supposed to, so then the sample isn't valid.

[00:08:30] Speaker 07:
The sample, you're right, the sample is there.

[00:08:33] Speaker 07:
You can agree that that's his sample.

[00:08:36] Speaker 07:
But if the agency doesn't follow its own rules, then that in and of itself then should cancel that.

[00:08:44] Speaker 07:
That's our argument.

[00:08:50] Speaker 07:
Further, under the Douglas Factors, the discipline was disproportionate.

[00:08:56] Speaker 07:
I know there was argument then on both sides about whether then the Master Labor Agreement says that a union employee like Mr. Lanier could be referred to drug counseling or some kind of drug rehabilitation.

[00:09:10] Speaker 07:
And the agency said, well, that's not for sure.

[00:09:13] Speaker 07:
They may refer them.

[00:09:16] Speaker 07:
Further then, if you take that same argument, it also says that if you test positive for any kinds of drugs, you may be fired.

[00:09:26] Speaker 07:
It doesn't say you shall be fired.

[00:09:29] Speaker 07:
So then, how do you juxtapose both of those?

[00:09:41] Speaker 07:
I understand why the agency at

[00:09:45] Speaker 07:
Robin's Air Force Base and the ALJ and the MSPB doesn't want to open this wide open.

[00:09:50] Speaker 07:
We drug test every day.

[00:09:55] Speaker 07:
And it's easy for the, we know how many people are diabetic.

[00:09:59] Speaker 07:
I understand that.

[00:10:01] Speaker 07:
But the result here is wrong.

[00:10:04] Speaker 07:
It's wrong for him to have lost his job when we all know he was diabetic and most likely that's what happened.

[00:10:09] Speaker 07:
So what we can do is we go back and it was harmful procedural error.

[00:10:14] Speaker 05:
Counsel, you don't need to raise your voice.

[00:10:17] Speaker 05:
We're in a nice intimate courtroom so you can just speak to us.

[00:10:20] Speaker 05:
We're here with you.

[00:10:21] Speaker 05:
I'm naturally loud, sorry.

[00:10:24] Speaker 07:
I don't mean to be loud.

[00:10:29] Speaker 07:
I'm just very passionate about that, Mr. Lanier.

[00:10:35] Speaker 07:
I feel like Mr. Lanier has been wronged by a system that's busy keeping the system that works.

[00:10:41] Speaker 07:
And I understand that we can't have people working who test positive for methamphetamines, but there's a legitimate reason of what happened here.

[00:10:52] Speaker 07:
And they say they called him, they didn't call him.

[00:10:59] Speaker 07:
We know for sure they did not initial reports.

[00:11:02] Speaker 07:
That we know for sure.

[00:11:03] Speaker 06:
Were there any medical tests showing diabetes that predated the positive test that I believe occurred in August of 2020?

[00:11:15] Speaker 07:
I don't think he knew then, because most of his records were in 2020.

[00:11:21] Speaker 00:
He testified that he didn't know.

[00:11:22] Speaker 07:
Yes.

[00:11:23] Speaker 07:
I don't think he knew then, which is consistent with the majority of Americans, because

[00:11:29] Speaker 07:
It's a silent epidemic.

[00:11:31] Speaker 07:
You have no idea that you got it.

[00:11:33] Speaker 01:
Can you help me on this?

[00:11:34] Speaker 01:
I don't think there's anything on the record in this, but please tell me if I've missed something.

[00:11:39] Speaker 01:
Your client took a subsequent drug test and tested negative, correct?

[00:11:46] Speaker 07:
Yes, Your Honor.

[00:11:47] Speaker 01:
How could he test negative if on your reasoning, having diabetes is going to lead to a positive test?

[00:11:55] Speaker 07:
Just because you're diabetic doesn't mean you're going to have a positive test unless you ingest some type of Sudafed.

[00:12:04] Speaker 01:
So you need the cold medicine plus the diabetes.

[00:12:09] Speaker 01:
You're probably right.

[00:12:10] Speaker 01:
Is there anything on the record that we could point to to say that's the combination?

[00:12:14] Speaker 07:
That was also then we attempted to insert that into the record on those exhibits, but those were

[00:12:20] Speaker 07:
disallowed because those were after the record closed about then how they can metabolize after.

[00:12:24] Speaker 00:
But I thought the evidence was that the GCMS exam was not sensitive to Sudafed.

[00:12:32] Speaker 00:
That is to say that having Sudafed in your system would not produce a false positive.

[00:12:37] Speaker 07:
The agency produces no expert testimony that said that.

[00:12:40] Speaker 07:
I mean, they said that, but I mean, there wasn't an expert, I mean, other than Dr. Figaro, who's the medical examiner,

[00:12:48] Speaker 07:
Who is it?

[00:12:49] Speaker 07:
I mean, so is he.

[00:12:51] Speaker 00:
He's a doctor who does this type of work all the time, right?

[00:12:55] Speaker 00:
Yes.

[00:12:55] Speaker 00:
Yeah.

[00:12:56] Speaker 00:
And that was his position.

[00:12:58] Speaker 07:
Yes.

[00:12:58] Speaker 07:
And his position also was that if someone were diabetic and that it could cancel out a test.

[00:13:10] Speaker 07:
I know we're in a conundrum.

[00:13:12] Speaker 07:
And I appreciate you all taking the time to hear Mr. Lanier.

[00:13:20] Speaker 07:
It's tough, but he needs his job back.

[00:13:24] Speaker 07:
Do you have any further questions, or I can yield my time?

[00:13:27] Speaker 05:
You can yield it, or you can reserve it for a bottle of tea.

[00:13:30] Speaker 07:
OK, thank you.

[00:13:36] Speaker 04:
I'll reserve.

[00:13:37] Speaker 04:
Mr. Moore?

[00:13:39] Speaker 08:
Yes, ma'am.

[00:13:40] Speaker 04:
You may proceed.

[00:13:44] Speaker 02:
May it please the court?

[00:13:46] Speaker 02:
This court should affirm the Merit System Protection Board decision because it was supported by substantial evidence.

[00:13:55] Speaker 02:
First, based on both the record evidence and the stipulation of Mr. Lanier, the administrative judge found that Mr. Lanier's position was a testing designated position, that he provided a specimen that tested positive for an illicit drug, methamphetamines.

[00:14:08] Speaker 02:
That decision is supported by substantial evidence and Mr. Lanier has not challenged it on appeal.

[00:14:12] Speaker 02:
Second, the administrative judge finding that there was no harmful procedural error was also supported by substantial evidence.

[00:14:19] Speaker 02:
The administrative judge found, relying on the unrebutted testimony of Ms.

[00:14:22] Speaker 02:
Jean Chambers, who is the responsible person for civilian drug testing at Fort Meade, that no overcount of the medications such as Sudafed could result in a positive test.

[00:14:34] Speaker 02:
She found no fatal flaws or anomalies regarding the attest of appellant's urine.

[00:14:39] Speaker 02:
Furthermore, regarding the diabetes issue, again, I think this court has a question of opposing counsel on.

[00:14:46] Speaker 02:
That was not raised at the administrative judge level.

[00:14:49] Speaker 02:
It was raised.

[00:14:50] Speaker 00:
Well, it was raised.

[00:14:51] Speaker 02:
It was raised.

[00:14:51] Speaker 02:
That's right, Your Honor.

[00:14:53] Speaker 00:
But you say the evidence that was produced to the full board was not before the AJ.

[00:15:00] Speaker 02:
That's correct, Your Honor.

[00:15:01] Speaker 00:
Except for his testimony.

[00:15:02] Speaker 02:
His testimony.

[00:15:03] Speaker 00:
And he did testify that A, he had diabetes, and B, that he discovered that in May of 2021.

[00:15:10] Speaker 00:
I don't know if he testified that he discovered that in May of 2021 at the... He had a blood work done on that day.

[00:15:19] Speaker 00:
That's correct.

[00:15:19] Speaker 00:
And then, presumably, promptly thereafter discovered, but in any event, did discover that he had diabetes well before the time of the hearing, because he testified that he had learned it from the blood test.

[00:15:32] Speaker 02:
Yes, Your Honor, I think that's correct.

[00:15:35] Speaker 00:
The whole diabetes thing is concerning, because the AJ said, well, all you've done is testify, and I don't find your testimony to be credible.

[00:15:46] Speaker 00:
Sure enough, it turns out when we look at the records, it was credible.

[00:15:52] Speaker 00:
In fact, it was true.

[00:15:54] Speaker 00:
So your position is, well, he should have introduced the records at that time.

[00:15:59] Speaker 00:
But then there's Dr. Fierro, who says,

[00:16:03] Speaker 00:
that at the hearing says that diabetes can produce a false positive.

[00:16:10] Speaker 00:
In fact, that's what he said.

[00:16:12] Speaker 00:
I think you'll agree that's the gist of his testimony.

[00:16:15] Speaker 02:
That is my understanding, Your Honor, yes.

[00:16:17] Speaker 00:
So your submission is that, well, failing to produce the records that confirm the accuracy of his testimony is the basis on which we should affirm.

[00:16:32] Speaker 02:
Not precisely, Your Honor.

[00:16:33] Speaker 00:
okay how is it different from what I'm saying?

[00:16:35] Speaker 02:
So two points your honor.

[00:16:37] Speaker 02:
First, Mr. Lanier was represented by counsel at the agency level, the administrative judge level, the board level, and now here.

[00:16:44] Speaker 02:
And throughout that entire time he has failed to produce any evidence showing that he had diabetes at the time of the drug test in August of 2020.

[00:16:53] Speaker 02:
And so this court could affirm based on the fact that

[00:16:57] Speaker 00:
The diabetes by and large doesn't just leap up and grab you.

[00:17:02] Speaker 00:
And we're talking about a six month period between August and about seven, eight months period between August of 2020 and May of 2021.

[00:17:13] Speaker 00:
So if he tested and his A1C was pretty high when he tested.

[00:17:19] Speaker 00:
So the idea that he didn't have any, um,

[00:17:24] Speaker 00:
diabetes condition above 6.5 is a little hard to credit in those eight months.

[00:17:32] Speaker 00:
He went from 6.5 to a much higher level, right?

[00:17:36] Speaker 02:
Well, Your Honor, I guess the record evidence doesn't elucidate how diabetes progresses, indeed what type of diabetes a miscellaneous could have had.

[00:17:46] Speaker 02:
And so I'm not sure I can comment specifically on how diabetes progresses, how long it takes for diabetes to demonstrate itself, or in fact whether or not having

[00:17:56] Speaker 02:
full-blown diabetes at one point versus not full-blown diabetes at another point could affect sort of the false positive on a drug.

[00:18:04] Speaker 00:
Well, that we do know that Dr. Fierro said that diabetes can produce a false positive, right, even with the particular test that was used in this case.

[00:18:16] Speaker 02:
Yes, Your Honor.

[00:18:17] Speaker 02:
I believe that is the testimony of Dr. Fierro, whether or not, as Your Honor, I think is referring to, if someone had diabetes at one point.

[00:18:25] Speaker 02:
Prior to that point, obviously, they did not have diabetes, assuming this is, I believe, type 2 diabetes.

[00:18:30] Speaker 00:
Right.

[00:18:30] Speaker 00:
At some point, a person with type 2 diabetes does not have diabetes.

[00:18:33] Speaker 02:
Yes, Your Honor.

[00:18:33] Speaker 02:
I believe that's correct.

[00:18:35] Speaker 02:
But the record doesn't reflect when exactly Mr. Lanier

[00:18:39] Speaker 02:
diabetes, or indeed the record doesn't reflect how long it takes for type 2 diabetes to, I guess, fully come on in an individual, such that it could affect the testing and produce a false positive on a drug test.

[00:18:55] Speaker 02:
I'll also note again, as this court has noted in questioning with the present counsel, is that Mr. Lanier did submit a drug test in December of 2020, which came forward negative.

[00:19:05] Speaker 02:
And I think that lends credence to the

[00:19:09] Speaker 02:
administrative judge's decision that, you know, there, excuse me, that lends credence to the administrative judge's conclusion that substantial evidence supported the fact that Mr. Lanier did not come forward with sort of mitigating evidence that he did indeed have diabetes, and it could support this court's conclusion that Mr. Lanier, in fact, did not have diabetes at that point.

[00:19:32] Speaker 02:
I'll also note that

[00:19:34] Speaker 02:
You know, he did present this evidence to the board.

[00:19:37] Speaker 00:
I'm not sure about the latter inference.

[00:19:39] Speaker 00:
That would be something of a stretch, it seems to me.

[00:19:42] Speaker 02:
You may be correct on that, Your Honor, yes.

[00:19:45] Speaker 02:
I will note that the full board did review this.

[00:19:48] Speaker 02:
And under the board's precedent, which is Avincenio versus US Postal Service, which it cited in its decision, and I think that's a footnote too, which is supplemental appendix seven,

[00:20:02] Speaker 02:
that Mr. Lanier did not provide any reason to the board and hasn't provided any reason to this court due diligence, why he did not provide the evidence to the administrative judge at the time of the hearing.

[00:20:17] Speaker 02:
Indeed, this evidence was available to Mr. Lanier before his notice, the final decision to remove him from the Air Force.

[00:20:26] Speaker 02:
Didn't present it to the Air Force then, didn't present to the administrative judge,

[00:20:29] Speaker 02:
administrative judge hearing.

[00:20:31] Speaker 00:
Help me with this.

[00:20:36] Speaker 00:
This is a speculation, but my reading of the record suggests that the whole diabetes issue didn't come up until Dr. Fierro said in the course of his testimony, kind of offhand, he said various diseases can cause a lower pH and therefore potentially a false positive

[00:20:58] Speaker 00:
such as diabetes, and he moved on.

[00:21:01] Speaker 00:
And presumably his lawyer at that point, or perhaps Mr. Lanier says, I have diabetes.

[00:21:09] Speaker 00:
And that is the first time the diabetes issue made its way into the record.

[00:21:13] Speaker 00:
So it seems to me it's perhaps understandable that the whole diabetes issue was not something that counsel had seized on well in advance of the hearing.

[00:21:25] Speaker 00:
Doesn't that seem fair, given the sequence of events?

[00:21:28] Speaker 02:
That is certainly one interpretation, Your Honor.

[00:21:31] Speaker 02:
Certainly another interpretation is that Mr. Lanier heard about the diabetes, said, oh, I have diabetes.

[00:21:37] Speaker 02:
and came forth and said that could be one reason, among many others that Mr. Lanier has presented here, why he believes that the test was a false positive.

[00:21:51] Speaker 02:
Another plausible result is that Mr. Lanier indeed did ingest methamphetamines, and he did indeed come in for a test, and that test came back positive for methamphetamines.

[00:21:59] Speaker 02:
And I believe that decision is what the administrative judge came to.

[00:22:02] Speaker 02:
And that decision is certainly plausible and supported by substantial evidence, I believe, based on the record that the court has in front of it today.

[00:22:11] Speaker 01:
I think Ms.

[00:22:12] Speaker 01:
Smith was suggesting that maybe Mr. Lanier had not signed a document indicating he understood he was subject to drug testing at the appropriate time.

[00:22:22] Speaker 01:
Do you have a response to that?

[00:22:24] Speaker 02:
I don't believe that was raised in her brief

[00:22:27] Speaker 02:
to this quarter below, Your Honor.

[00:22:29] Speaker 02:
My understanding is that, let me pull up the record site here, is that Mr. Lanier did sign a notice that he was in a testing designated position, and that would be at supplemental appendix 84.

[00:22:56] Speaker 03:
Is that signed in connection with this particular position as opposed to a different position?

[00:23:01] Speaker 02:
So this is signed in regards to the WG2604 Grade 8.

[00:23:09] Speaker 02:
I believe she stated that Mr. Lanner was in a WG2604 Grade 10, is I believe what's the testimony.

[00:23:18] Speaker 02:
I'm not sure whether or not, and the record doesn't reflect,

[00:23:25] Speaker 02:
whether the change in grade would mean that he would not be in a testing designated position.

[00:23:30] Speaker 02:
I believe that while the grade may change, the position title is the same.

[00:23:34] Speaker 02:
And I think his position would be the same.

[00:23:36] Speaker 02:
There's no dispute that he was an airplane mechanic.

[00:23:39] Speaker 02:
And I think that whether there was a change in grade, i.e.

[00:23:46] Speaker 02:
he would be paid more, I think that if anything, that would mean that he would continue to be in a testing

[00:23:52] Speaker 01:
And further, you'd say he didn't raise a dispute about whether he was subject to drug testing?

[00:23:58] Speaker 01:
No, Your Honor, he did not raise that.

[00:24:00] Speaker 01:
Did he, in fact, stipulate that he was subject to drug testing?

[00:24:05] Speaker 02:
Your Honor, I believe the stipulation, which is on supplemental appendix 15 here, is that he signed and acknowledged the notice of drug testing as a condition of employment for a WG 260408.

[00:24:17] Speaker 02:
That's the supplemental appendix 83 that I'm referring to here.

[00:24:20] Speaker 02:
Thank you.

[00:24:26] Speaker 02:
And finally, Your Honor, just referring to the, I believe, the issue of the nexus and penalty was raised.

[00:24:32] Speaker 02:
The administrative judge found, based on substantial evidence, that the penalty of removal did not exceed the bounds of reasonableness.

[00:24:39] Speaker 02:
The decision is supported by substantial evidence.

[00:24:41] Speaker 02:
As detailed in the agency's notice of removal, the proposed penalty of removal was consistent with those imposed on other employees with the 56 AMXS

[00:24:52] Speaker 02:
which is the base that he was on for the similar or offenses and the penalties consistent with the Air Force table of penalties.

[00:25:00] Speaker 02:
The administrative judge also noted, which is on supplemental appendix 2425, cited other cases in which individuals in the Air Force had been removed for single-use off-duty drug use.

[00:25:13] Speaker 02:
Therefore, the administrative judge thus committed no error in concluding that the removal did not exceed the bounds of reasonableness.

[00:25:21] Speaker 02:
the court is any further questions.

[00:25:24] Speaker 06:
Thank you.

[00:25:28] Speaker 06:
Thank you Your Honor.

[00:25:37] Speaker 07:
I do apologize for being so loud before.

[00:25:40] Speaker 07:
My eardrums burst when I was a little girl, so

[00:25:43] Speaker 07:
occupational hazard that's most times is very helpful.

[00:25:47] Speaker 07:
We're just not home with it so close together.

[00:25:49] Speaker 07:
So I do apologize that was not my intent.

[00:25:53] Speaker 07:
I think it is peculiar that the agency

[00:26:02] Speaker 07:
They can justify when the strict liability, they think the strict liability that he tested positive, so he has to be a meth head.

[00:26:10] Speaker 07:
There's no other reason.

[00:26:12] Speaker 07:
He's tested positive, and that's it.

[00:26:15] Speaker 07:
Yet, when he signed the WG, and that was in the United, in the initial decision of the Merit System Protection Board, the pre-hearing agreements, they agreed to that the appellant

[00:26:31] Speaker 07:
held the position of an electronic mechanic, WG260410.

[00:26:34] Speaker 07:
So they have stipulated and agreed that.

[00:26:38] Speaker 07:
And the form that he signed was for WG26048.

[00:26:44] Speaker 07:
How is that not harmful error?

[00:26:51] Speaker 07:
How is that not strict liability?

[00:26:53] Speaker 07:
We're holding Mr. Lanier to strict liability.

[00:26:56] Speaker 07:
The record was closed.

[00:26:57] Speaker 07:
You didn't put that in, so that's it.

[00:27:01] Speaker 01:
Have you anywhere disputed that he was subject to drug testing for his position at grade 10?

[00:27:07] Speaker 07:
Yes.

[00:27:07] Speaker 07:
The original hearing with the petition for a review, that was briefly brought up.

[00:27:14] Speaker 01:
Yes.

[00:27:14] Speaker 01:
Do you have a citation?

[00:27:18] Speaker 07:
We cited on the record, due to Mr. Lanier's

[00:27:31] Speaker 00:
Is that in your supplemental petition for Ewing or in Mr. Williams's initial?

[00:27:36] Speaker 07:
I think we cited, we got permission from the court and the court ordered that we could rest on the record so then it's part of the original record due to Mr. Lanier's finances.

[00:27:51] Speaker 01:
So it's in the supplemental appendix at your supplement?

[00:27:53] Speaker 07:
Yes, yes.

[00:27:55] Speaker 07:
And that was in what Marion L. Williams did in his initial, he was the union president who was also Mr. Lanier's representative in that petition for review, that he raised that issue.

[00:28:07] Speaker 00:
Is he a representative or was he counsel?

[00:28:11] Speaker 00:
No, he's just a lawyer.

[00:28:13] Speaker 07:
No, Mr. Williams, he's been the union president for several years over at AFG in Warner Robins.

[00:28:25] Speaker 07:
In our brief, we also raised that the chain of custody wasn't filed, that there were numerous initials that were not made.

[00:28:35] Speaker 07:
We had made that.

[00:28:36] Speaker 06:
So you're over your rebuttal time.

[00:28:39] Speaker 06:
Any last thought, and we can wrap it up?

[00:28:43] Speaker 07:
I know this is a hard one, and I appreciate your time.

[00:28:49] Speaker 07:
I hope none of you are Florida State fans, but I hope if you just like the football committee that just had to figure out the Final Four and they had to justify who was going to be on the fourth position and they had to come up with a reason.

[00:29:01] Speaker 07:
I think we've provided enough of a reason to allow the case to either be remanded back

[00:29:10] Speaker 07:
to the board article be completely overturned because the procedure was not followed and therefore since the procedure wasn't followed that then the test should be invalid.

[00:29:22] Speaker 07:
Thank you so much.

[00:29:23] Speaker 07:
We appreciate it.

[00:29:24] Speaker 07:
Thank you.

[00:29:25] Speaker 07:
This case is taken under submission.