[00:00:33] Speaker 02:
If you're ready, the next case is number 171430, Holden against Department of the Navy.

[00:00:42] Speaker 02:
Mr. Nuss.

[00:00:45] Speaker 01:
May it please the court.

[00:00:45] Speaker 01:
My name is James Nukis, Jr.

[00:00:48] Speaker 01:
I'm privileged to be here today representing Scott Holden along with my associate and son, James Clainis Nukis.

[00:00:54] Speaker 01:
This case is about Mr. Holden's removal as an employee at the Portsmouth Naval Shipyard where he was a

[00:01:00] Speaker 01:
Crane team supervisor or a rigor supervisor.

[00:01:04] Speaker 01:
There was an accident in a crane evolution.

[00:01:07] Speaker 01:
And as a result of that accident, he was wrongfully drug tested because the drug test was positive.

[00:01:13] Speaker 01:
He was removed.

[00:01:15] Speaker 01:
We are here today to argue on several counts that the test was not authorized and was not legal.

[00:01:22] Speaker 04:
Are you making a constitutional argument?

[00:01:26] Speaker 01:
The constitutional argument weaves into the interpretation of the regulation.

[00:01:30] Speaker 01:
The controlling regulation in this case is the Portsmouth Naval Shipyard post-accident drug test ordinance.

[00:01:38] Speaker 01:
It specifically provides that an employee can be tested if their actions are reasonably suspected of having caused or contributed to the accident.

[00:01:49] Speaker 01:
The constitutional argument comes in with the interpretation by the Merit System Protection Board

[00:01:54] Speaker 01:
which changed that standard.

[00:01:57] Speaker 01:
And the standard they've employed says that the proper standard on the PNS rule is whether the agency had a reasonable suspicion that the appellant could have caused or contributed to the accident.

[00:02:10] Speaker 01:
This dramatically changes the standard and the regulation and the interpretation of the regulation under the Constitution.

[00:02:17] Speaker 03:
Let me tell you what my concern is.

[00:02:20] Speaker 03:
The Skinner case in the Supreme Court recognizes that these drug tests typically have to be done quickly or the evidence is going to disappear.

[00:02:32] Speaker 03:
And so a judgment has to be made pretty much on the spot before the end of the day that a drug test is warranted.

[00:02:41] Speaker 03:
Would you agree with that?

[00:02:43] Speaker 01:
Yes, but Skinner did that based on the fact that there was a specific regulation that said

[00:02:49] Speaker 01:
anybody directly involved in the accident could be drug tested.

[00:02:54] Speaker 01:
Now, that was in an industry where it was regulating the railroads, a pervasively regulated industry, where there are serious accidents resulting in personal injury, death, or property damage, 100 years of alcohol abuse.

[00:03:09] Speaker 01:
And it found in that scenario that drug testing, those directly involved, was permissible.

[00:03:18] Speaker 03:
So the question is, you know, in terms of what the people ordering the drug test have to know, there's a limited ability to investigate the accident if you're confined to the same day of the accident and they have necessarily to go on incomplete information, right?

[00:03:39] Speaker 01:
And what the courts have said in that somewhat exigent circumstance is there needs to be a balancing between the government's interest

[00:03:48] Speaker 01:
and the individual's interest in their expectation of privacy.

[00:03:52] Speaker 01:
And Skinner has been interpreted, and we cited the case of USV Plain, which did a wonderful job of reviewing a litany of cases that involve this issue.

[00:04:03] Speaker 01:
And in balancing that interest, the court has said that the government interest is diminished as the harm resulting from the accident is lesser.

[00:04:17] Speaker 01:
And the expectation of privacy goes up.

[00:04:20] Speaker 03:
I understand, but I mean if they do have to make on the spot judgments, they're necessarily going to have to make the judgment based on incomplete information.

[00:04:29] Speaker 03:
Here we have a situation in which your client was the supervisor of the overall operation and he had absent himself from the scene to go down to the submarine and he couldn't see the crane at the time.

[00:04:44] Speaker 03:
He also had the obligation

[00:04:47] Speaker 03:
to brief the team at the outset.

[00:04:50] Speaker 03:
But certainly, under those circumstances, it could be, couldn't it, that his actions caused or contributed to the accident.

[00:05:00] Speaker 03:
If he'd been, for example, next to the crane, he might have seen that the load was not between the rails as it should have been.

[00:05:09] Speaker 01:
That very question was asked of Mr. Theer, who was making the decision that evening.

[00:05:14] Speaker 01:
Mr. Thayer, what was it that he did that in any way caused or contributed to the accident?

[00:05:19] Speaker 01:
Mr. Thayer said exactly that.

[00:05:21] Speaker 01:
Well, he could have been in the right position, and he could have prevented the accident.

[00:05:26] Speaker 01:
But Mr. Thayer also agreed that that was pure speculation.

[00:05:29] Speaker 03:
Well, he used the word speculation, but he did seem to say that if Holton had been next to the crane, that as an experienced supervisor, he could have seen that something was wrong and prevented the accident.

[00:05:42] Speaker 01:
What the cases say

[00:05:44] Speaker 01:
in USV plane very clearly is that it's not could have, which is what the board used.

[00:05:53] Speaker 01:
There must be some direct connection between the conduct of the employee and the accident.

[00:06:00] Speaker 01:
They say specifically that the conduct has to be, have to attribute either cause the accident or appear to have caused the accident or

[00:06:11] Speaker 03:
His absence from the scene could have contributed to the accident, right?

[00:06:19] Speaker 01:
But, Your Honor, critical to the factual determinations made that evening, number one, Banks and Thayer didn't even know they were required to find reasonable suspicion.

[00:06:29] Speaker 01:
That's very clear in the record.

[00:06:32] Speaker 01:
But what they did find, what Thayer says that he knew, is that Mr. Holton was down here.

[00:06:38] Speaker 01:
The accident happened up here on the other side of a six-story building.

[00:06:42] Speaker 01:
Mr. Thayer testifies that from the evidence he gathered, he believes that Mr. Holton properly briefed the team before the evolution began.

[00:06:53] Speaker 01:
And then Mr. Thayer... He didn't know that at the time.

[00:06:56] Speaker 03:
Yes, he did.

[00:06:57] Speaker 03:
Well, show me where he says he knew it at the time.

[00:07:00] Speaker 01:
It's in the... He testified to it, and I'll pull it out while I'm waiting for rebuttal.

[00:07:07] Speaker 01:
But he knew that at the time.

[00:07:08] Speaker 01:
He testified that he knew that Mr. Holton was on the other end of the shipyard, on the other end of the dry dock, and that he was authorized to be there.

[00:07:18] Speaker 03:
And he also said that if it had been him, he wouldn't have done that.

[00:07:22] Speaker 01:
That's discretionary.

[00:07:23] Speaker 01:
Mr. Fair's own policy at the shipyard, the blue and gold policy, says specifically that you need to

[00:07:35] Speaker 01:
You have blue and gold.

[00:07:38] Speaker 01:
A gold hat is the supervisor.

[00:07:40] Speaker 01:
The blue hat is the rigor in charge.

[00:07:42] Speaker 01:
The way the procedure works is the gold hat briefs the crew.

[00:07:48] Speaker 01:
If it's not a complex lift, and this was not a complex lift, then he appoints a rigor in charge, who's a specifically trained and authorized person, to take over the train evolution.

[00:07:59] Speaker 01:
And that happened in this case.

[00:08:01] Speaker 01:
And the rigor in charge

[00:08:04] Speaker 01:
started to proceed with a portal crane around.

[00:08:08] Speaker 03:
You mean that if the supervisor saw that the load was improperly not between the rails, he should shut up and not do anything about it if he's standing there?

[00:08:16] Speaker 01:
He couldn't see it, Your Honor.

[00:08:17] Speaker 03:
I understand that.

[00:08:18] Speaker 03:
But if he were standing there, I don't understand the blue and gold fairies.

[00:08:22] Speaker 03:
Surely, if he were standing there, he would have done something about it.

[00:08:26] Speaker 01:
He could have, Your Honor.

[00:08:29] Speaker 01:
That's the board standard.

[00:08:30] Speaker 01:
That's not the law under Skinner and USV Plains.

[00:08:35] Speaker 04:
But aren't we supposed to take into consideration that they do have this crane team concept where all members of the team are supposed to act together?

[00:08:44] Speaker 01:
Yes, but that is not a work rule.

[00:08:49] Speaker 01:
That's a work philosophy concept.

[00:08:52] Speaker 01:
In terms of the triggering event, what they need to look at at that moment is causation.

[00:08:58] Speaker 01:
The crane team concept,

[00:09:01] Speaker 01:
is not a concept of causation.

[00:09:03] Speaker 01:
It's a concept of responsibility.

[00:09:06] Speaker 01:
It's like the three musketeers.

[00:09:07] Speaker 01:
If one of us are involved, we're all involved.

[00:09:10] Speaker 01:
That's not what our Constitution says.

[00:09:12] Speaker 01:
Rene Trombley, who was the drug program coordinator, will tell you, it testified, that the instruction did not provide that the whole team could just be tested like that.

[00:09:25] Speaker 01:
There had to be reasonable suspicion.

[00:09:28] Speaker 01:
And in this case, you know,

[00:09:32] Speaker 01:
It's not that Mr. Holton was errant in doing what he did.

[00:09:36] Speaker 01:
Mr. Fair testified that he was fully authorized to do what he was doing.

[00:09:39] Speaker 03:
But that's my problem.

[00:09:40] Speaker 03:
See, I'm not sure that at the time that it's possible to make these judgments about full.

[00:09:50] Speaker 03:
You have to go on incomplete information that's available at the time.

[00:09:55] Speaker 03:
And the fact that he certainly was reasonable to think the fact that he was absent from the scene

[00:10:01] Speaker 03:
could have contributed to the accident.

[00:10:04] Speaker 03:
Now, maybe he wasn't at fault.

[00:10:05] Speaker 03:
Maybe ultimately it will be determined that he wasn't at fault for being absent from the scene.

[00:10:10] Speaker 03:
But at the time, maybe they don't know that.

[00:10:14] Speaker 01:
But Mr. Thayer knew he was authorized to be where he was, doing what he was doing, because of Mr. Thayer's own blue and gold policy, which says, we don't want both hats there, because that will confuse the crane operator and the crane walker.

[00:10:28] Speaker 01:
So you only want one person of authority there.

[00:10:31] Speaker 02:
So for you to prevail, would we have to adopt the principle that there is not supervisory responsibility unless certain events take place, such as the supervisor being on the scene?

[00:10:46] Speaker 01:
I don't think that you have to go that far.

[00:10:50] Speaker 01:
I think, you know, you have to look at the facts when it happens and what was known.

[00:10:57] Speaker 01:
And you judge whether or not there can be a drug test based on those facts as they were known.

[00:11:03] Speaker 01:
And those facts did not establish reasonable suspicion that he caused or contributed to the accident.

[00:11:12] Speaker 01:
Just because he's a supervisor doesn't mean he could have, you have to determine whether he did in fact cause one of the triggering events.

[00:11:23] Speaker 01:
Is he reasonably suspected of causing one of the events?

[00:11:27] Speaker 01:
The board didn't find that.

[00:11:29] Speaker 01:
The board found that, oh, he briefed him, and he was actively involved.

[00:11:38] Speaker 01:
Well, if you look at the cases under US Steel, I'm sorry, US v. Plain, that is not what those cases say.

[00:11:48] Speaker 01:
They have enjoined regulations that would allow that.

[00:11:51] Speaker 03:
Fault and causation are not necessarily the same thing.

[00:11:54] Speaker 03:
Are you contending that there has to be a reasonable suspicion of fault at the time?

[00:11:59] Speaker 01:
No, no, absolutely not.

[00:12:01] Speaker 01:
Reasonable suspicion that he caused or contributed to the accident.

[00:12:05] Speaker 03:
But not fault.

[00:12:06] Speaker 01:
But not fault.

[00:12:08] Speaker 01:
Cause or contributed, again, as interpreted in the case law, is that triggering event that would likely cause the accident.

[00:12:20] Speaker 01:
So it's causation.

[00:12:22] Speaker 01:
Team concept is not causation, fault is not causation.

[00:12:26] Speaker 01:
I mean, the whole shipyard can be held responsible for the fact that there's a crane accident.

[00:12:34] Speaker 02:
Okay.

[00:12:35] Speaker 02:
Let's hear from the other side.

[00:12:36] Speaker 02:
We'll save some rebuttal time.

[00:12:38] Speaker 01:
Thank you.

[00:12:43] Speaker 00:
Thank you, your honor.

[00:12:46] Speaker 00:
May it please the court.

[00:12:47] Speaker 00:
The court should affirm the decision of the Merit System Protection Board because the board correctly found the Navy's administration of the drug test was consistent with the Fourth Amendment and the shipyard's drug testing instruction, and that it was not a due process violation for the individual who authorized the urinalysis to serve as the deciding official.

[00:13:07] Speaker 02:
As an initial matter... The government has abandoned the principle of random tests.

[00:13:14] Speaker 02:
Don't they have to show some

[00:13:16] Speaker 02:
relationship between the presence or absence on the scene in order to bring the supervisor within the scope of the regulation?

[00:13:25] Speaker 00:
Your Honor, this test dealing specifically with the post-accident drug testing, the regulation at issue in this case does say that the individual should be or the employee should be reasonably suspected of having caused or contributed to the accident.

[00:13:42] Speaker 00:
And that threshold was met in this case and is supported by substantial evidence.

[00:13:46] Speaker 04:
But didn't they say that he knew that he wasn't in a position to have altered what occurred here?

[00:13:56] Speaker 00:
Yes, your honor.

[00:13:57] Speaker 00:
Mr. Holton was down at the other end of the docks, but specifically with regard to the blue and gold policy that Mr. Holton's counsel keeps referencing to, there could be the rigor and charge could take on a greater role.

[00:14:12] Speaker 00:
However, that policy specifically states that the rigor and charge could be left unless at the point of most risk.

[00:14:20] Speaker 00:
In this case,

[00:14:21] Speaker 00:
that curve, that pivotal junction where the crane was moving was the point of most risk.

[00:14:27] Speaker 00:
Mr. Thayer also testified that he would have followed the crane.

[00:14:32] Speaker 00:
He was in that position and that it would have been his preference that the supervisor in that case would have, in this particular case, would have stayed with the crane because he has that unique ability to step back.

[00:14:45] Speaker 04:
But he had no obligation to stay with the crane.

[00:14:48] Speaker 04:
He said that he knew that he'd properly

[00:14:51] Speaker 04:
briefed the crew, right?

[00:14:55] Speaker 00:
Yes, Your Honor.

[00:14:55] Speaker 00:
Well, he said that he knew he briefed the crew.

[00:14:58] Speaker 00:
He wasn't aware at that time whether he properly briefed the crew.

[00:15:02] Speaker 00:
However, he did state that while Mr. Holton didn't violate necessarily any rule or regulation, the policy number 51 does allow for a rigor in charge to take more responsibility at some point, and the supervisor could

[00:15:19] Speaker 00:
leave for minimal periods of time unless you're at the point of most risk.

[00:15:24] Speaker 00:
And it was established through Mr. Thayer and Mr. Banks in this case that the crane movement behind building 343 was the most critical juncture and was the point of most risk in this case.

[00:15:38] Speaker 00:
So even though Mr. Holton's counsel continues to cite the policy number 51,

[00:15:43] Speaker 00:
There it specifically states that the supervisor should be following the crane at the point of most risk, which is where the accident occurred in this case.

[00:15:52] Speaker 04:
In addition as... Is it the same thing to say that you need reasonable suspicion that someone caused or contributed to an accident and to say that I can then say if I think that had they been somewhere else, they might have helped prevent it, that that's the same as causing or contributing to it?

[00:16:11] Speaker 00:
Your Honor, looking in this case, in this specific unique nature of the crane team, the 11 member team, where each individual had 11, each member of that team had a specific responsibility in the lifting and handling, and specifically the supervisor in this case has the responsibility for safety, personnel and equipment, and has that responsibility of stepping back and being able to identify particular safety issues or equipment issues

[00:16:41] Speaker 00:
Had he been in the right place, Mr. Thayer testified that he likely would have seen this and he could have prevented it.

[00:16:48] Speaker 00:
So making the decision to place himself at a point where he's not able to follow the crane, not able to step back and have those cross-checks, he did cause or contribute to the accident in this case.

[00:17:01] Speaker 00:
And the agency had the specific causation nexus

[00:17:05] Speaker 00:
as well as the triggering events of damage over $10,000.

[00:17:10] Speaker 00:
With regard to Mr. Holton's argument that the board applied the wrong standard when looking at whether or not there was causation in this case, we would argue that argument is waived because it was not raised in the principal brief.

[00:17:27] Speaker 00:
Mr. Holton's principal brief was based on establishing

[00:17:30] Speaker 00:
that are arguing reasonable cause or that the reasonable suspicion was not apparent.

[00:17:37] Speaker 00:
He did not argue that the board applied the wrong standard.

[00:17:42] Speaker 00:
In addition, the cases cited to by Mr. Holton draw no meaningful distinction between may have caused, contributed, or caused.

[00:17:51] Speaker 04:
In fact... Do you agree that if we were to apply the thoughtful district court decision in plain,

[00:17:58] Speaker 04:
that we would have to say that even if the regulation could pass muster on its face here, its application in these circumstances was not constitutional.

[00:18:08] Speaker 00:
No, Your Honor.

[00:18:09] Speaker 00:
Plain is not relevant in this case.

[00:18:13] Speaker 00:
In that particular case, the only reason I referenced it was they have a specific citation in that case to say the Fourth Amendment requires may have cause.

[00:18:23] Speaker 00:
That regulation was ultimately overturned

[00:18:26] Speaker 00:
because it had the language involved in and applied to all employees.

[00:18:31] Speaker 00:
This case is more akin to Skinner, where you have a unique set of employees who are operating under safety and great risk.

[00:18:41] Speaker 00:
So they have a reduced expectation of privacy.

[00:18:49] Speaker 00:
The government's interest in this case is compelling because they are there to find out what caused this accident, why did this accident occur, and to prevent it in the future.

[00:18:58] Speaker 04:
Well, if you can't test everybody who's involved in an accident, how do you test people who weren't actually involved in the accident?

[00:19:10] Speaker 00:
Your Honor, I apologize if I misunderstood the question.

[00:19:13] Speaker 00:
In this case, the test was for all of the employees who were involved in the accident.

[00:19:20] Speaker 00:
And that goes back to the unique crane team concept in this case.

[00:19:24] Speaker 03:
Yeah, but the trouble I have is you look at Skinner, there seem to be two different standards that they apply to major accidents and non-major accidents.

[00:19:32] Speaker 03:
For the major accidents, which this wouldn't fall into that category, right?

[00:19:37] Speaker 03:
It talks about directly involved.

[00:19:40] Speaker 03:
That's what the regulation provided there.

[00:19:43] Speaker 03:
And then this other standard, which must be somewhat looser, is caused or contributed to.

[00:19:50] Speaker 03:
This is kind of mushy, but it looks as though they were applying a directly involved standard rather than a caused or contributed standard.

[00:20:02] Speaker 00:
Your Honor, in Skinner there were the two separate regulations that were at issue.

[00:20:07] Speaker 00:
The direct involvement that mandates the testing for all of the employees that were involved.

[00:20:15] Speaker 00:
permissive regulation, which allowed testing based on the reasonable suspicion the employee contributed to the accident.

[00:20:23] Speaker 00:
The regulation at issue in this case is more akin to the second regulation in Skinner, which required the reasonable suspicion of the employee having contributed.

[00:20:33] Speaker 03:
And therefore, because the language... So would you agree that under Skinner, the notion that you should test everybody involved in an accident of this type

[00:20:44] Speaker 03:
would not be consistent with Springer and that you're arguing that while that may be true, it was reasonable to test the supervisor?

[00:20:57] Speaker 00:
Your Honor, I believe what I'm saying is that the regulation is consistent with Skinner.

[00:21:04] Speaker 03:
Another bit of the regulation maybe, but the notion of testing everybody involved in the act that seems to be

[00:21:10] Speaker 03:
applying the first Skinner test for major accents directly involved.

[00:21:14] Speaker 00:
Yes, Your Honor.

[00:21:15] Speaker 03:
And it seems to me it's questionable as to whether that's the appropriate standard for a minor accent like this or a non-major accent.

[00:21:23] Speaker 00:
Yes.

[00:21:24] Speaker 03:
So, but at the same time, would you agree with that?

[00:21:29] Speaker 00:
Yes, Your Honor.

[00:21:29] Speaker 00:
The cases coming after Skinner have more narrowly tailored the causation analysis, and that's evident from

[00:21:38] Speaker 00:
the instruction in this case where they did require the causation analysis.

[00:21:43] Speaker 03:
So what I'm asking you is, while it may be that the agency isn't entitled to test everybody who was involved in the lift, your position is that because of the peculiar circumstances of the supervisor, Holton, there was reasonable suspicion to test him.

[00:22:04] Speaker 03:
Is that a fair statement?

[00:22:07] Speaker 00:
It is a fair statement, your honor.

[00:22:09] Speaker 00:
However, in this case, with unique concept of the crane team concept and that each of the 11 individuals did have a particular role.

[00:22:19] Speaker 03:
I'm not sure about that.

[00:22:22] Speaker 00:
That the agency did have a reasonable suspicion to test the entire team.

[00:22:27] Speaker 00:
However, in particular, the agency had the reasonable suspicion that the supervisor

[00:22:33] Speaker 00:
caused or contributed to the accident.

[00:22:35] Speaker 04:
How do we conclude that they actually determined that they had reasonable suspicion when both of the decision makers didn't know they had to have reasonable suspicion?

[00:22:47] Speaker 00:
Your Honor, in the record, it's clear that Mr. Banks and Mr. Thayer walked through the instruction together and determined what was necessary.

[00:22:58] Speaker 04:
They thought they needed the $10,000 worth of damage in a police report and that was it.

[00:23:02] Speaker 00:
And, Your Honor, they walked through and discussed the crane team concept, and Mr. Banks specifically says all members were involved.

[00:23:11] Speaker 02:
So the record shows that Mr. Banks and Mr. Thayer were aware that there was a causation element that was required because they walked... Was it clear, just to be clear about, was it clear that the evidence was uncontradicted, that his absence from the scene at the time of the accident

[00:23:32] Speaker 02:
that there was nothing improper about his doing whatever he was doing at the other end of the dock while the crane was moving.

[00:23:43] Speaker 00:
Yes, Your Honor.

[00:23:44] Speaker 00:
Mr. Thayer did testify that Mr. Halton was not in violation of a regulation or a rule at that point in time.

[00:23:54] Speaker 00:
However, Mr. Thayer also testified that it is the responsibility of the supervisor to be at the critical juncture pursuant to Apollo.

[00:24:03] Speaker 02:
Well, if it was his responsibility, then there was a violation.

[00:24:07] Speaker 02:
If there was no violation, how could it have been his responsibility?

[00:24:11] Speaker 00:
The supervisor has the responsibility for the overall safety of the team.

[00:24:16] Speaker 02:
That's a different principle.

[00:24:18] Speaker 02:
The supervisor is always responsible, no matter what.

[00:24:24] Speaker 02:
I think we have before us.

[00:24:26] Speaker 02:
I just wanted to be clear that the evidence was uncontradicted, that he had done nothing wrong or irresponsible or anything else by doing whatever he was doing at the other end of the dock.

[00:24:41] Speaker 00:
Your Honor, while Mr. Holton didn't violate a policy, you're correct, Your Honor.

[00:24:47] Speaker 00:
Mr. Holton made the decision to leave and go to a point on the dock where he couldn't see the crane, he couldn't see his team, and he couldn't step back and see the overall picture to make the call that if there was an improper rigging or if the crane was coming off the track.

[00:25:07] Speaker 00:
And Mr. Thayer testified that had he been in the position where Mr. Thayer assumed he would have been as the supervisor, he could have prevented this accident.

[00:25:18] Speaker 03:
Is there a difference between being contrary to a regulation or policy and being contrary to best practices?

[00:25:29] Speaker 00:
Um, your honor, with respect to, um, if I understand your honor's question, um, yes, there is a difference while he wasn't in, uh, violation of the policy, he still made a bad decision and, uh, didn't make, did not place himself in a part of the dock where he could observe the accident or could have prevented the accident.

[00:25:52] Speaker 04:
So that would be that, I mean, it'd be one thing if you were sitting here and say, and arguing that, that the,

[00:25:58] Speaker 04:
His employer had a right to discipline him for not engaging in best practices.

[00:26:02] Speaker 04:
But that's a very different question than whether or not the Fourth Amendment would allow this kind of intrusive search, right?

[00:26:10] Speaker 00:
Yes, Your Honor.

[00:26:11] Speaker 00:
And here, there was, while he was not in violation of the policy, there was definitely enough to have a reasonable belief that he caused or contributed to the accident through his action or inaction.

[00:26:26] Speaker 00:
And so the agency rightfully administered the drug test in this case.

[00:26:32] Speaker 02:
So you're not arguing that there's nothing wrong with the policy that the whole team is given a drug test, that it must be established that maybe had he been doing something else, he might have averted this accident?

[00:26:49] Speaker 00:
Your Honor, in this particular case, the entire crane team did have involvement and did contribute to the accident.

[00:27:01] Speaker 00:
As I stated, each individual had a specific role.

[00:27:06] Speaker 00:
And I believe during Mr. Thayer's testimony, he called it a switch role, or I equate to checks and balances.

[00:27:14] Speaker 03:
Let's take a hypothetical.

[00:27:15] Speaker 03:
Suppose one member of the team

[00:27:17] Speaker 03:
has a responsibility to make sure that the crane isn't moving too fast.

[00:27:21] Speaker 03:
And his whole job is to measure the speed of the crane and make sure it stays under two miles an hour, something like that.

[00:27:28] Speaker 03:
Could, in these circumstances, could that person reasonably be tested?

[00:27:33] Speaker 03:
Could there be reasonable suspicion that that person contributed to the accident?

[00:27:39] Speaker 03:
If I understand your question, Your Honor, yes, there would be reasonable sufficient that the individual... I think that's a pretty hard argument to make, that somebody whose sole responsibility was to watch the crane and determine how fast it was going and the crane wasn't going too fast can still be tested.

[00:27:58] Speaker 03:
That seems to be difficult.

[00:28:00] Speaker 03:
Yes, Your Honor, but in this... So what I'm suggesting to you is that this team concept may just go too far.

[00:28:08] Speaker 00:
Yes, Your Honor.

[00:28:09] Speaker 00:
I think, again, it has to go back to the unique aspect of the crane team, as Mr. Banks and Mr. Thayer testified, and that each of the individual crane members received teaching on that aspect of this crane team concept, and in particular with Mr. Holton as the supervisor.

[00:28:31] Speaker 00:
I see my time is running out.

[00:28:34] Speaker 02:
Let me just ask you one question, just to be absolutely clear.

[00:28:37] Speaker 02:
The government's position is not that the supervisor is always responsible, no matter what.

[00:28:44] Speaker 02:
That some link needs to be shown?

[00:28:46] Speaker 00:
Yes, Your Honor.

[00:28:48] Speaker 02:
Okay.

[00:28:48] Speaker 00:
And in this case, that link was shown.

[00:28:51] Speaker 02:
Okay.

[00:28:52] Speaker 02:
Any more questions?

[00:28:55] Speaker 02:
Thank you.

[00:28:57] Speaker 01:
Briefly, Your Honor, a couple of pieces of testimony and understanding of what was going on that's important.

[00:29:04] Speaker 01:
There are regulations that say if it's a complex lift,

[00:29:07] Speaker 01:
which is based on size and weight and those sorts of things, then the supervisor cannot lead the evolution.

[00:29:14] Speaker 01:
This was not a complex lift.

[00:29:15] Speaker 01:
Again, he was doing what he was permitted to do.

[00:29:18] Speaker 01:
And he wasn't goofing off.

[00:29:19] Speaker 01:
He was over preparing the landing area to put down the 60,000 pound pod.

[00:29:25] Speaker 01:
Interestingly, Mr. Thayer testified that crane team supervisors cannot be everywhere at the same time.

[00:29:34] Speaker 01:
They have to make choices.

[00:29:36] Speaker 01:
In this case,

[00:29:37] Speaker 01:
Mr. Holton made a choice that was consistent with the policies, responsibility, and his discretion.

[00:29:43] Speaker 01:
It's also important to note that this crane team with the same crane operator had been doing the same evolution around.

[00:29:49] Speaker 03:
How is it that if the record showed here that Mr. Holton had exercised bad judgment in being where the pod was going to be put down instead of being at the point of maximum risk?

[00:30:03] Speaker 03:
Let's just give me a hypothetical.

[00:30:05] Speaker 03:
That's a hypothetical.

[00:30:07] Speaker 03:
evidence show.

[00:30:08] Speaker 03:
Would that create reasonable suspicion?

[00:30:11] Speaker 01:
I don't think so.

[00:30:12] Speaker 01:
I think under the triggering event standard, it has to be more than that.

[00:30:18] Speaker 01:
There has to be a greater connection.

[00:30:20] Speaker 01:
Why is that not enough?

[00:30:24] Speaker 01:
Because it doesn't go far enough in connecting him to that.

[00:30:32] Speaker 01:
I'm having trouble with the hypothetical because I'm not dealing with the hypothetical.

[00:30:35] Speaker 01:
But omissions could be contributing.

[00:30:38] Speaker 01:
Omission could be.

[00:30:39] Speaker 01:
This was not an omission.

[00:30:40] Speaker 01:
This is clearly not an omission.

[00:30:42] Speaker 01:
The crane team, and this is in the record, the crane team had been doing these moves, exact same move, over the course of the prior two weeks.

[00:30:52] Speaker 01:
On 12 to 15 occasions, they had performed the same evolution without a problem.

[00:30:59] Speaker 02:
You're saying it's okay to come to work as a crane operator supervisor.

[00:31:07] Speaker 02:
It's okay to come to work high on dope as long as someone else causes the accident.

[00:31:13] Speaker 01:
There's no evidence that he was high on dope, Your Honor.

[00:31:16] Speaker 03:
There's no evidence that he was under the influence.

[00:31:20] Speaker 03:
And it was a pretty high level, wasn't it?

[00:31:25] Speaker 01:
You don't get to look behind the curtain.

[00:31:27] Speaker 01:
You have to determine first whether or not

[00:31:29] Speaker 01:
the drug test is permissible.

[00:31:32] Speaker 01:
Only then can you look at whether he was high or not.

[00:31:35] Speaker 01:
Certainly there should be a strong possibility that people should not be under the influence.

[00:31:40] Speaker 01:
But before you can determine somebody's under the influence, you have to have the right to drug test them in the first place.

[00:31:46] Speaker 01:
Keep in mind also that Mr. Thayer testified

[00:32:00] Speaker 01:
Mr. Thayer testified that after his initial review of what transpired, the only person that he thought should be drug tested was the crane operator.

[00:32:12] Speaker 01:
Mr. Banks, who was the second approval on this, had no idea Mr. Holton was even involved in this matter.

[00:32:22] Speaker 01:
They say they relied on the crane team concept.

[00:32:25] Speaker 01:
Take a look at Mr. Thayer's statement at page 249, 250 of the appendix.

[00:32:30] Speaker 01:
He doesn't mention the crane team concept.

[00:32:34] Speaker 01:
That only came up in their testimony at trial almost a year later.

[00:32:39] Speaker 01:
I think the crane team concept is even fabricated and not appropriate.

[00:32:46] Speaker 01:
Do you have no further questions?

[00:32:47] Speaker 01:
Any more questions?

[00:32:48] Speaker 01:
Any more questions?

[00:32:49] Speaker 02:
OK, thank you.

[00:32:50] Speaker 02:
Thank you both.

[00:32:51] Speaker 01:
Thank you very much for talking to us.