Drugs, Air Traffic Control and Rehab

An air traffic controller was removed by the FAA for using drugs off duty. The Federal Circuit finds fault with the procedures and tells the MSPB to take another look.

The Federal Circuit Court of Appeals refused yesterday to sustain a decision by the Merit Systems Protection Board and sent the case of a fired San Diego FAA air traffic controller back to the Board (Baker v. Department of Transportation, No. 04-3370, August 16, 2005)

Baker was removed by the FAA for off duty drug use. His problems began when he was arrested and pled guilty for possession of a controlled substance which was found in his vehicle by police. FAA proposed Baker’s removal based on the criminal conviction. In that notice he was told that if he voluntarily enrolled in an agency-approved substance abuse rehabilitation and treatment program, this would be taken into consideration. FAA regulations required that Baker be given the opportunity to voluntarily enroll in such a program since this was his first offense. Successful completion of the program would get Baker off the hook but failure meant the agency could go ahead with his removal.

Mr. Baker obviously knew a good deal when he saw it, as he opted to voluntarily enter the program. As a condition, he signed a form authorizing reports to the agency on his progress. He did well on the in-treatment phase of the program, but tested positive for a controlled substance shortly after beginning the out-patient phase of treatment. When confronted by the program’s drug counselor, Baker admitted he had taken the substance, and to add insult to injury had received the drug from a fellow patient. At that point, Baker was kicked out of the treatment program for using drugs, getting them from another patient, and for not reporting the situation.

As is typically the case in these situations, the FAA immediately kicked its process into gear and followed through on Baker’s removal. In his response to the agency, Baker attacked the rehab program, delineating its questionable practices. He also said he was told to admit his drug use or he would be kicked out at which point he obviously knew he faced the wrath of the FAA. So he claimed at this point that he made up the story about getting drugs from a former patient.

Unpersuaded, FAA made the final decision of removal. Baker appealed to the MSPB where he never disputed the fact that he had used the drug both before and during the treatment program. Instead, he raised several procedural arguments, including an attack on the procedures used by the third party treatment program in kicking him out of the program. The administrative law judge did not buy this part of the appeal. He pointed out that “There is no evidence, nor has there been any suggestion, that Vista Pacifica was not an appropriate or accredited substance abuse rehabilitation program.” He also noted that there was no evidence that the agency had any control over the treatment facility, and went on to find that “the private rehabilitation program provider’s decision to discharge the appellant did not constitute harmful procedural error on the part of the agency.”

Baker argued to the Federal Circuit that by failing to consider the procedures used in kicking him out of the treatment program, that the agency and the MSPB committed procedural error. The court bought this argument and reversed and remanded to the Board stating that “Mr. Baker is entitled to have his claim of invalid discharge [from the program] considered.”

It will be interesting to see how Mr. Baker fares with the Board on round two.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.