Filed: Oct. 07, 2021
Latest Update: Oct. 07, 2021
Case: 21-1898 Document: 18 Page: 1 Filed: 10/07/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TIMOTHY E. BAKER,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2021-1898
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-21-0024-I-1.
______________________
Decided: October 7, 2021
______________________
TIMOTHY E. BAKER, Bremerton, WA, pro se.
KYLE SHANE BECKRICH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent.
______________________
Before NEWMAN, REYNA, and CHEN, Circuit Judges.
PER CURIAM.
Case: 21-1898 Document: 18 Page: 2 Filed: 10/07/2021
2 BAKER v. NAVY
Timothy E. Baker appeals the decision of the Merit
Systems Protection Board (Board) affirming the decision of
the Department of the Navy (Navy) to remove Mr. Baker
from the position of Machinist, WG-3414. See Baker v.
Dep’t. of the Navy, No. SF-0752-21-0024-I-1, 2021 WL
533572 (M.S.P.B. Feb. 10, 2021) (Board Decision). Because
the Board’s decision is supported by substantial evidence,
we affirm.
BACKGROUND
On May 20, 2020 a naval officer was informed of “an
individual who was using an unknown substance while in
their vehicle.” Suppl. App. 1 18. Upon investigation, the
officer observed Mr. Baker smoking in a manner incon-
sistent with the use of tobacco or marijuana. Id. The of-
ficer reported the incident to Mr. Baker’s supervisor.
Id.
In his written report, the officer noted that “this behavior
had been consistently observed prior to this, both prior to
shift and during the lunch break for the shift.”
Id. As a
result, Mr. Baker’s superintendent authorized a test for il-
legal drug use based on reasonable suspicion. Board Deci-
sion at 2 (citing Initial Appeal File and hearing testimony);
see also Suppl. App. 20 (describing the reason for the drug
test as “reasonable suspicion/cause”). On May 28, 2020,
Mr. Baker tested positive for amphetamines and metham-
phetamines. Suppl. App. 19–20. On June 1, 2020, the re-
sults were confirmed by gas chromatography-mass
spectroscopy, which revealed amphetamine levels of 1,021
nanograms per milliliter and methamphetamine levels of
more than 2000 nanograms per milliliter. Suppl. App. 19.
These concentrations are, respectively, more than four and
1 “Suppl. App.” citations are to the appendix filed
concurrently with the government’s responsive brief.
Case: 21-1898 Document: 18 Page: 3 Filed: 10/07/2021
BAKER v. NAVY 3
eight times the cutoff levels that trigger a positive drug test
result. 29 C.F.R. § 40.87.
The Medical Review Officer, Dr. Robert Fierro, re-
viewed the test results and discussed those results with
Mr. Baker. Board Decision at 3. During that discussion,
Mr. Baker mentioned that he was taking dietary supple-
ments, but provided no further detail. Id. In his report,
Dr. Fierro concluded that there was “[n]o legitimate medi-
cal explanation” for the positive test results. Suppl. App.
20.
On June 10, 2020, Mr. Baker was notified he would be
suspended from access to classified information and as-
signment to a sensitive position because of his positive
drug test. Board Decision at 3. Following that notice,
Mr. Baker met with his supervisor and presented expired
prescription medications as a justification for the positive
drug test. Id. During that meeting, Mr. Baker made no
representation about his use of methamphetamines or
weight loss supplements. Id. The Navy subsequently sus-
pended Mr. Baker indefinitely due to his loss of security
clearance. Id. at 4.
On August 11, 2020 the Navy issued Mr. Baker a notice
of proposed removal based on his positive drug test and Ex-
ecutive Order 12564, which requires federal employees to
refrain from using illegal drugs on or off duty. Id.
Mr. Baker did not respond to the notice and his removal
became effective on September 15, 2020. Id.
On October 9, 2020, Mr. Baker appealed his removal
before the Board. Id. at 1. The Board considered docu-
ments and testimony reciting the foregoing as well as arti-
cles theorizing that the ingestion of dietary supplements
could result in a positive drug test, the results of at-home
drug tests, and images of dietary supplements that
Mr. Baker submitted. Board Decision at 5–6. The Board
affirmed Mr. Baker’s removal because the Navy proved, by
a preponderance of the evidence, “the charge of drug use
Case: 21-1898 Document: 18 Page: 4 Filed: 10/07/2021
4 BAKER v. NAVY
(methamphetamines),” that there was “a nexus between
the misconduct and the efficiency of the service,” and that
“the penalty of removal did not exceed the tolerable limits
of reasonableness.” Id. at 7. In particular, the Board was
persuaded by Dr. Fierro’s testimony that no prescribed
medication could cause a positive result at the level of Mr.
Baker’s drug test. Id. at 6.
On appeal, Mr. Baker contends that the Board failed to
properly consider his submitted articles, the results of at-
home drug tests, and photographs of dietary supplements.
Appellant’s Br. 1. Mr. Baker requests reinstatement. Id.
at 2.
DISCUSSION
This court has jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9) and may review the final decision of the Board.
Our authority to review Board decisions is limited. “[W]e
must affirm the Board’s decision unless we find it to be (1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowing; or (3) unsupported by substantial evidence.” See,
e.g., Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334
(Fed. Cir. 2008) (quoting 5 U.S.C. § 7703(c)).
Mr. Baker’s appeal focuses only on whether the Navy
had proved the charge of drug use. 2 Appellant’s Br. 1 (“The
name or [i]dentity [of the dietary supplements] was in the
pictures I sent with my evidence I sent the judge for the
2 Mr. Baker does not challenge the Board’s finding
that there was “a nexus between the misconduct and the
efficiency of service” or the Board’s finding that “the pen-
alty of removal did not exceed the tolerable limits of rea-
sonableness.” Board Decision at 7. Nor does Mr. Baker
identify any flaw in the collection or testing procedure for
the Navy’s drug test.
Case: 21-1898 Document: 18 Page: 5 Filed: 10/07/2021
BAKER v. NAVY 5
court proceedings.”); id. (“I told the lab, doctor, and security
from the start what I have been taking including the diet
supplements, and that they could test them and I feel if
they had a way to test them not knowing for sure why the
positive outcome.”). Mr. Baker argues that if the Board
properly considered the articles, at-home drug tests, and
photographs he submitted, the Board would not have up-
held his removal.
We agree with the government that substantial evi-
dence supports the Board’s decision. Appellee’s Br. 10. The
record demonstrates that the Board fully considered the
Navy’s drug test, testimony of medical professionals, Mr.
Baker’s testimony, and the evidence Mr. Baker submitted
and reasonably found “[A]ppellant’s explanation for his
reasonable suspicion positive drug test [to be] too vague
and unspecific to be credible.” Board Decision at 6. More-
over, we determine that the Board did not err in relying on
Dr. Fierro’s conclusions that neither prescription medica-
tions nor dietary supplements could cause the levels of am-
phetamine and methamphetamine documented in Mr.
Baker’s test results. Id. at 3, 6. We considered Mr. Baker’s
other arguments and do not find them persuasive.
CONCLUSION
For the foregoing reasons, we affirm the decision of the
Board.
AFFIRMED
COSTS
No costs.
