[00:00:27] Speaker 04:
Okay, the next case before the court is Hanson versus the Department of Homeland Security, case number 172584.

[00:00:33] Speaker 04:
Mr. Kader, how do you pronounce that?

[00:00:41] Speaker 04:
Yes, sir, thank you.

[00:00:45] Speaker 04:
You want five minutes for rebuttal?

[00:00:47] Speaker 00:
Yes, if I may, Your Honor.

[00:01:17] Speaker 04:
OK, you may begin.

[00:01:18] Speaker 00:
Thank you, Your Honor.

[00:01:20] Speaker 00:
We raised two principal arguments in our briefs to this Court.

[00:01:23] Speaker 00:
We addressed the obligation of the government to prove intent and its failure to do so.

[00:01:30] Speaker 00:
And we also raised the Fourth Amendment argument.

[00:01:36] Speaker 00:
If it please the Court, I'd like to start with the Fourth Amendment argument, because I think it's a narrower argument.

[00:01:43] Speaker 00:
And in some respects, it's

[00:01:46] Speaker 00:
It's a little simpler.

[00:01:49] Speaker 00:
This court has dealt with drug testing in a number of occasions.

[00:01:55] Speaker 00:
It's dealt with it in the context of reasonable suspicion in Wiley, recently in Holton, I believe it is.

[00:02:05] Speaker 00:
It dealt with post-accident testing.

[00:02:08] Speaker 00:
And most recently in Grimsred, it had a case involving compliance testing.

[00:02:16] Speaker 00:
It's never had a case involving the question of whether an individual is in a testing designated position.

[00:02:25] Speaker 00:
In fact, the board has never, as far as I can tell, addressed the issue of whether someone is in a testing designated position.

[00:02:34] Speaker 00:
I'm not aware of any court that's addressed it.

[00:02:36] Speaker 00:
And the reason that that issue doesn't arise is because it's very simple.

[00:02:42] Speaker 00:
You're either designated for drug testing or you're not.

[00:02:46] Speaker 04:
Well, what about the fact that he had a pre-employment drug test requirement?

[00:02:52] Speaker 00:
Yeah.

[00:02:52] Speaker 00:
And that's fine.

[00:02:53] Speaker 00:
And that's a completely different section of the drug testing policy.

[00:02:57] Speaker 00:
And it is not sufficient for purposes of the Fourth Circuit and the Fourth Amendment, and no court has held that the fact that you have pre-employment testing

[00:03:12] Speaker 00:
automatically subjects you to random testing.

[00:03:15] Speaker 00:
In fact, that's not the law.

[00:03:16] Speaker 04:
So what are the cases that you rely on to say that in the absence of specific designation, it's a violation of the Fourth Amendment to subject an employee to drug testing?

[00:03:31] Speaker 00:
So I think Holton is where I would start with that, Your Honor.

[00:03:37] Speaker 00:
In Holton, this court, quoting the Fourth Circuit, said, knowledge that an employee is subject to random testing

[00:03:42] Speaker 00:
is of no small importance.

[00:03:44] Speaker 00:
The fact that the employee is subject to this search procedure will not be a surprise.

[00:03:50] Speaker 00:
It was a surprise to Mr. Hanson.

[00:03:53] Speaker 00:
Citing Raub, von Raub, the Supreme Court's case, the Court further and Holton said random drug tests are permitted for certain employees, provided that the employees have general notice that they are subject to the testing requirement.

[00:04:10] Speaker 00:
So I think it flows directly from

[00:04:12] Speaker 00:
from this Court's decision in Holton.

[00:04:14] Speaker 00:
But even beyond that, in Van Raab and all the other cases, it's recognized that the government employees have a serious and legitimate privacy interest in not being subject to drug testing.

[00:04:27] Speaker 02:
I thought he conceded below to the deciding official that it was perfectly fine for him to be subject to random drug testing.

[00:04:37] Speaker 02:
And the only thing he was really contesting

[00:04:41] Speaker 02:
was, in his words, he's disputing the fact that he used marijuana knowingly.

[00:04:49] Speaker 02:
I'm looking at A103.

[00:04:55] Speaker 00:
He certainly didn't waive his Fourth Amendment argument, if that's what you're saying.

[00:05:00] Speaker 00:
On page 100, which is his statement to the deciding official before he had counsel, before he was aware of it, he says,

[00:05:10] Speaker 00:
I did not think I had anything to worry about.

[00:05:16] Speaker 00:
If I did, I would have refused the random test.

[00:05:20] Speaker 04:
Well, he didn't think anything to worry about because his view is he didn't know what he had taken.

[00:05:24] Speaker 04:
Correct.

[00:05:25] Speaker 04:
Even the brownies.

[00:05:26] Speaker 04:
But he does say, I know that I agree with the

[00:05:33] Speaker 04:
CBP's mission and that the illegal use of drugs by employees in direct conflict with the principles of enforcement.

[00:05:41] Speaker 04:
And he says that he says that I know that I'm bound by it.

[00:05:48] Speaker 04:
He doesn't say that he doesn't raise a Fourth Amendment problem with respect to the fact of testing for his position.

[00:05:57] Speaker 00:
I don't think it would be reasonable to expect him to raise a Fourth Amendment issue.

[00:06:02] Speaker 00:
At that time, as far as he knew, he'd worked there for eight years.

[00:06:06] Speaker 00:
He had never before been tested.

[00:06:08] Speaker 00:
He'd never been given the documentation to sign, to say, I am in a testing designated position.

[00:06:14] Speaker 00:
He was never given the opportunity to appeal, which is part of the procedures.

[00:06:20] Speaker 00:
He was never given any of that.

[00:06:22] Speaker 00:
So far as he knew, OK, I got a drug test.

[00:06:25] Speaker 00:
I'm supposed to be drug tested.

[00:06:27] Speaker 00:
Well, he's not a lawyer.

[00:06:28] Speaker 00:
You know, he's not required to know what his Fourth Amendment rights are.

[00:06:32] Speaker 00:
The government is.

[00:06:32] Speaker 00:
The government is, and MSPB in this Court cannot sustain a removal that's taken a derogation of his Fourth Amendment rights.

[00:06:43] Speaker 00:
So I don't think you can put waiver on Mr. Hanson.

[00:06:46] Speaker 00:
I don't think that's reasonable at all.

[00:06:48] Speaker 00:
The question is, was it reasonable at the time that he was subjected to this test for him to have known that he was subject to random drug testing?

[00:06:58] Speaker 00:
And in every other case that's ever come up where this issue is discussed, the person's in a testing designated position.

[00:07:06] Speaker 00:
And we know that because they show us a designation.

[00:07:09] Speaker 00:
Where's the designation in this case?

[00:07:11] Speaker 04:
As an IT specialist, doesn't he have access to the precise information that is listed as one of the designations?

[00:07:21] Speaker 00:
No.

[00:07:22] Speaker 02:
He doesn't have access to automated systems?

[00:07:25] Speaker 00:
He has some access to automated systems.

[00:07:27] Speaker 00:
The affidavit that the A.J.

[00:07:29] Speaker 00:
relied upon says he has privileged access.

[00:07:33] Speaker 00:
Privileged access, and there's some definition of that.

[00:07:37] Speaker 00:
That doesn't mean that he has access to secure information, information that you would need a security clearance to access.

[00:07:44] Speaker 00:
It would be a crime for him to access information, to be allowed to access information if he didn't have a security clearance.

[00:07:52] Speaker 00:
And the databases that are referenced in the government's brief, they're ellipsed in the AJ's decision.

[00:07:59] Speaker 00:
The government says, here are the two databases.

[00:08:02] Speaker 00:
These are law enforcement databases.

[00:08:07] Speaker 00:
The affidavit that the AJ relies on does not identify these databases.

[00:08:11] Speaker 00:
It does not say, you have privileged access to da-da-da-da-da, including these databases.

[00:08:17] Speaker 00:
Because it doesn't.

[00:08:18] Speaker 04:
It would have been an issue.

[00:08:19] Speaker 04:
At most, if we thought there was an issue,

[00:08:21] Speaker 04:
we would remand for them to consider whether or not he was clearly within the designated category was put on notice.

[00:08:30] Speaker 04:
And while it's not in the record, because it was obtained after the fact, the red brief specifically says they found the email trail that notified him on this fact.

[00:08:39] Speaker 00:
Well, I have a real problem with that, Your Honor.

[00:08:43] Speaker 00:
My problem with that is we struggled.

[00:08:46] Speaker 00:
We did everything we could, in this case, to get the government to identify

[00:08:51] Speaker 00:
What's the basis for the designation?

[00:08:53] Speaker 00:
We asked the discovery.

[00:08:54] Speaker 00:
We filed a motion to compel.

[00:08:56] Speaker 00:
They filed their brief.

[00:08:56] Speaker 00:
We said, it's not in here.

[00:08:58] Speaker 00:
They filed something else.

[00:08:59] Speaker 00:
It still wasn't in there.

[00:09:01] Speaker 00:
The government has never argued that he's designated.

[00:09:06] Speaker 00:
His designation flows from what the A.J.

[00:09:08] Speaker 00:
found.

[00:09:09] Speaker 00:
The first time that ever arose was in the A.J.'

[00:09:12] Speaker 00:
's decision.

[00:09:13] Speaker 00:
And now the government wants to say, we've scoured the record, we've turned over every

[00:09:22] Speaker 00:
Wait a minute.

[00:09:23] Speaker 00:
You want to turn over every rock?

[00:09:25] Speaker 00:
Where's the pool?

[00:09:26] Speaker 00:
There's a pool.

[00:09:27] Speaker 00:
It is a list of every employee who is subject to drug testing.

[00:09:33] Speaker 00:
It is maintained, is required to be maintained.

[00:09:35] Speaker 00:
Where is that document?

[00:09:38] Speaker 00:
If the government was going to turn over every stone and it wanted to show that Mr. Hanson was in a testing designated position, designated, it would have delivered this pool.

[00:09:49] Speaker 00:
It was that here is his name in that pool.

[00:09:52] Speaker 00:
Government never did that.

[00:09:53] Speaker 00:
It didn't do it below, and it didn't do it in its brief in this Court.

[00:09:58] Speaker 00:
And the reason it didn't, I think the only inference that can be drawn, is the reason it didn't is because he was not designated.

[00:10:05] Speaker 00:
Remember, he didn't get the phone call and say, Mr. Hanson, show up for drug testing.

[00:10:10] Speaker 00:
That's not how this happened.

[00:10:12] Speaker 00:
He was sitting in his supervisor's office, and the supervisor got the call from the drug coordinator and said,

[00:10:18] Speaker 00:
Show me employee A and B and tell them that they need to show up for drug testing.

[00:10:23] Speaker 00:
And the supervisor said, they're not here today.

[00:10:25] Speaker 00:
They're out in the field.

[00:10:26] Speaker 00:
And the guy said, well, give me two more.

[00:10:29] Speaker 00:
And so he said, Jeff, go do drug testing.

[00:10:31] Speaker 00:
And Jeff did.

[00:10:33] Speaker 00:
He was never designated.

[00:10:35] Speaker 00:
It was a fluke.

[00:10:37] Speaker 00:
And it was improper because he was not on that list.

[00:10:41] Speaker 00:
There are time and time and time again, there are procedures in place at the agency

[00:10:46] Speaker 00:
to protect people, to ensure that they are properly included in this list, including an opportunity to appeal.

[00:10:54] Speaker 00:
And again, as in Wiley, this court dealt with the issue of reasonable suspicion testing.

[00:11:01] Speaker 00:
And the question was, I think, a prison guard or something, and somebody made an anonymous tip, or whatever it was.

[00:11:08] Speaker 00:
And this court said, you have to look at the knowledge of the person at the time

[00:11:14] Speaker 00:
at the time that the testing was made.

[00:11:17] Speaker 00:
Well, in the context of Mr. Hanson's reasonable expectation of privacy, you have to look at what it was at the time.

[00:11:25] Speaker 00:
And at the time, he didn't know about this affidavit and, you know, parsing of the, of the, of these documents.

[00:11:34] Speaker 00:
What he knew is he was never given any of these, these documents.

[00:11:37] Speaker 00:
He never signed as he was required to do an acknowledgment that he was subject to drug testing.

[00:11:42] Speaker 00:
He had nothing in his position description.

[00:11:44] Speaker 00:
that identified his position as being subject to drug testing.

[00:11:48] Speaker 00:
That's what was known at the time.

[00:11:50] Speaker 00:
And under this court's decision in Holden, which is, you know, it can't be a surprise.

[00:11:57] Speaker 00:
It was a surprise.

[00:11:59] Speaker 00:
And because it was a surprise, it was unlawful.

[00:12:02] Speaker 00:
And so do you need a remand?

[00:12:04] Speaker 00:
No, no.

[00:12:05] Speaker 00:
The government had every opportunity, every opportunity.

[00:12:09] Speaker 00:
We asked for this in this government.

[00:12:11] Speaker 00:
We filed a motion to compel.

[00:12:13] Speaker 00:
Did they produce it?

[00:12:14] Speaker 00:
No.

[00:12:14] Speaker 00:
Only in this Court.

[00:12:15] Speaker 00:
And is there an excuse that, oh, I'm sorry, we didn't produce it because it was unavailable?

[00:12:21] Speaker 00:
No.

[00:12:22] Speaker 00:
We looked through our archives, emails, and found it.

[00:12:24] Speaker 00:
They should have found that below, where we would have an opportunity to address it.

[00:12:28] Speaker 00:
They didn't.

[00:12:29] Speaker 00:
So they don't deserve another chance.

[00:12:32] Speaker 00:
I didn't get a chance to talk about intent.

[00:12:34] Speaker 02:
Obviously, it's a huge issue.

[00:12:37] Speaker 00:
Thank you.

[00:12:42] Speaker 04:
Because he only discussed the Fourth Amendment issue, I think you should just limit yourself to that.

[00:12:47] Speaker 04:
Certainly, Your Honor.

[00:12:48] Speaker 04:
Otherwise, we'll rely on the brace for the other issues.

[00:12:54] Speaker 01:
May it please the Court?

[00:12:57] Speaker 01:
The argument was made that it was a surprise that Mr. Hanson was subject to random drug testing.

[00:13:03] Speaker 01:
He did not express surprise, however, in the first four iterations of his story.

[00:13:10] Speaker 01:
before the agency and then before the board.

[00:13:13] Speaker 04:
But when you're talking about someone who's not represented by counsel, you're talking about a constitutional issue.

[00:13:19] Speaker 04:
It's a lot more liberal with respect to whether or not something has been waived.

[00:13:26] Speaker 01:
To be sure, that is true with respect to his statements before the agency.

[00:13:31] Speaker 04:
But after Holden, why didn't you just say, we understand that our initial requirement is to establish that he is in a drug testing

[00:13:39] Speaker 01:
And the agency did that.

[00:13:43] Speaker 01:
The administrative judge found, based on substantial evidence, that he was in a testing designated position.

[00:13:49] Speaker 04:
Based on that one line about the automated systems?

[00:13:54] Speaker 01:
Based on several things, Your Honor.

[00:13:56] Speaker 01:
Based on the statement in the drug-free policy, which Your Honor referenced, based upon sworn evidence establishing his job duties, which squarely fall within

[00:14:10] Speaker 01:
the parameters of that provision of the drug testing policy.

[00:14:14] Speaker 01:
But if that weren't enough, there was additional sworn evidence that showed Mr. Hanson's IT specialist position specifically appears on the agency's complete list of covered positions that are subject to random drug testing that appears in the appendix on pages 128 and 152.

[00:14:36] Speaker 03:
He's his IT specialist.

[00:14:39] Speaker 03:
I see on page A152 it does list IT specialists.

[00:14:42] Speaker 03:
That's what you're referring to.

[00:14:44] Speaker 01:
Yes, Your Honor, and that was submitted as part of a sworn declaration by the drug testing administer who administers the complete list of drug testing positions.

[00:14:55] Speaker 04:
Okay, so where on 152 is that?

[00:14:58] Speaker 04:
Oh, down here, 2210?

[00:15:00] Speaker 01:
Yes, Your Honor.

[00:15:02] Speaker 02:
The AJA didn't rely on this, right?

[00:15:04] Speaker 02:
Ultimately.

[00:15:05] Speaker 01:
The administrative judge found that it was not necessary to go that far, but it was in the record, it was admitted into the record, and it clearly supports the agencies.

[00:15:16] Speaker 04:
Does Mr. Hanson have a top-secret security clearance?

[00:15:18] Speaker 01:
No, Your Honor.

[00:15:19] Speaker 04:
Well, this position is described as one that has a top-secret security clearance.

[00:15:25] Speaker 01:
It was sensitive, but not classified, Your Honor.

[00:15:28] Speaker 04:
Okay, so then he doesn't fall under this, right?

[00:15:31] Speaker 01:
No, Your Honor.

[00:15:36] Speaker 01:
position description at the time provided for a top-secret security clearance.

[00:15:45] Speaker 04:
However, in practice, the agency hired for both non and... Right, so if he's not in a top-secret security clearance and he's not managing cyber security projects, then how does he fall in this category?

[00:16:05] Speaker 01:
your honor that your honor the I grant you that that's one possible reading of this document but that was not the reading that these the affiant provided to the board the affiant is mr. Van Spivey on page 128 the

[00:16:35] Speaker 01:
Declaration of Mr. Vanspide states in paragraph 4 that Mr. Hanson was subject to random drug testing under the agency's program and attached the, then goes on with the attachment and provides the list of all the

[00:16:59] Speaker 01:
testing designated positions.

[00:17:00] Speaker 04:
If the attachment on its face doesn't support this affidavit, then how are we supposed to say this affidavit proves anything?

[00:17:08] Speaker 04:
Well, Your Honor, it's sworn testimony before the board from the administrator of... If I put in an affidavit that says, the document says Apple, and you go look at the document and it says George, then how is that sworn testimony meaningful?

[00:17:26] Speaker 03:
Your Honor, that would be... What about paragraph 8 on page A129, where it seems to address what would happen if an ITS employee has a top security clearance?

[00:17:44] Speaker 01:
That's right, Your Honor.

[00:17:45] Speaker 01:
The SPIVI declaration goes on to say that all employees occupying the ITS position

[00:17:53] Speaker 01:
are in a testing designated position, regardless of their level of clearance.

[00:17:58] Speaker 03:
And this issue... This question still goes back to how would they know that?

[00:18:02] Speaker 01:
Sure.

[00:18:03] Speaker 01:
So there's a notice question that has been presented to the court at this level.

[00:18:09] Speaker 01:
However, there wasn't a Fourth Amendment notice argument made before the board.

[00:18:13] Speaker 04:
When Mr... Just let's assume the notice argument is on the table.

[00:18:21] Speaker 01:
Okay.

[00:18:21] Speaker 01:
What the appellant is requesting here is that the court make fact-finding in the first instance on a matter that was not presented either in an affirmative defense or in an argument before the board, and they not only don't, not only are they asking for fact-finding in the first instance on the Fourth Amendment issue,

[00:18:47] Speaker 01:
But they don't want a remand to get to the truth of the matter, because Mr. Hanson, from the outset of his employment, received clear and unambiguous notice in the drug test fact sheet, which is referenced in... That's the thing in the footnote, right, that you didn't produce until after the proceeding.

[00:19:07] Speaker 01:
That's right.

[00:19:08] Speaker 04:
And, Your Honor, to be fair... Well, if you were searching for that and produced it, why did you... How can you say you didn't know that notice was an issue?

[00:19:17] Speaker 04:
My search for that, if you didn't know, notice was an issue.

[00:19:21] Speaker 01:
Because of the timing, Your Honor.

[00:19:23] Speaker 01:
It was not an issue in the proceedings before the Board.

[00:19:27] Speaker 01:
There was no affirmative defense based on the Fourth Amendment asserted at the Board under 7701C2C.

[00:19:33] Speaker 01:
So this issue, an affirmative defense based on the Fourth Amendment,

[00:19:39] Speaker 01:
was never the subject of discovery and fact-finding by the board.

[00:19:43] Speaker 01:
It was only until the opening brief in this case asserted a lack of notice that the agency went back.

[00:19:53] Speaker 01:
And it wasn't something that was easy to find, Your Honor.

[00:19:57] Speaker 01:
But when they specifically looked for it in response to the specific argument that was made before you, they did find it.

[00:20:04] Speaker 01:
And

[00:20:06] Speaker 01:
I have it before me, there's no other way to read this, Your Honor, than that Mr. Hanson was notified you have been tentatively selected for a testing-designated position and are subject to post-employment random drug testing.

[00:20:22] Speaker 01:
So they don't want the remand to get to the truth of whether there was notice or not.

[00:20:27] Speaker 01:
They are asking for Your Honors to make factual findings in the first instance

[00:20:34] Speaker 01:
on an incomplete record.

[00:20:36] Speaker 01:
We are happy to have it.

[00:20:37] Speaker 04:
Is it true that the government keeps a list of employees by name who are testing in testing designated positions?

[00:20:45] Speaker 01:
No, Your Honor.

[00:20:46] Speaker 01:
They maintain a complete list of positions.

[00:20:51] Speaker 01:
Okay.

[00:20:51] Speaker 01:
This is a massive agency, and they do not, they do it by position.

[00:20:58] Speaker 01:
That's why it's a testing designated position, not a testing designated employee.

[00:21:06] Speaker 04:
Okay, so the list that you gave us, which I've just pointed out, doesn't specifically include someone that doesn't have a top secret clearance.

[00:21:18] Speaker 04:
The A.J.

[00:21:18] Speaker 04:
didn't rely on that.

[00:21:20] Speaker 01:
That's correct.

[00:21:21] Speaker 01:
The administrative judge found it was, quote-unquote, clear that Mr. Hanson's job duties married up to the provisions in the drug-free workplace policy

[00:21:36] Speaker 01:
which provided that employees with sensitive access to automated systems are subject to random drug testing and his.

[00:21:50] Speaker 04:
And what page of the appendix is that reference on?

[00:22:04] Speaker 01:
Are you asking for the

[00:22:06] Speaker 01:
boards finding or the underlying provisions on Appendix 32 and it also appears a second time on Appendix 58.

[00:22:35] Speaker 01:
So on 32, it's under Scope A, paragraph 6.

[00:22:42] Speaker 01:
And the same list appears on 58 as well in the appendix.

[00:22:48] Speaker 03:
And I would also- On page 58, where are you referring?

[00:22:51] Speaker 03:
I'm looking at page A58.

[00:22:53] Speaker 03:
So can you tell me where I'm supposed to be looking at?

[00:22:57] Speaker 03:
Sure.

[00:22:57] Speaker 03:
It's certainly not paragraph 3, but what are you relying on?

[00:23:02] Speaker 01:
Also, positions designated for drug testing under four, there are, they go into employees who have access to these automated commercial systems.

[00:23:16] Speaker 01:
TEX and ACS.

[00:23:25] Speaker 01:
The verbiage is not identical, but the substance is the same.

[00:23:28] Speaker 03:
So this is what was relied on by the board?

[00:23:31] Speaker 01:
Yes, Your Honor.

[00:23:32] Speaker 01:
And also, I would point out that also in the appendix on page 177, which is the letter, the job offer letter to Mr. Hanson, on 177 next to drug test, please refer to the enclosed fact sheet for documents you should read.

[00:24:02] Speaker 01:
prior to the test.

[00:24:05] Speaker 01:
That's the agency's notice.

[00:24:08] Speaker 01:
Mr. Hanson's Fourth Amendment arguments are without merit, and lest the Court have any doubt, we would be pleased for a remand for further factual development so that Mr. Hanson can assert the affirmative defense, there can be proper discovery and fact-finding, and ultimately

[00:24:28] Speaker 01:
We respectfully submit that the remand would be futile for Mr. Hanson, but if that's what he wants, I don't think he does.

[00:24:36] Speaker 04:
Two questions, and you might not know this, but how does someone who is subject to random drug testing make it through eight years without being tested?

[00:24:46] Speaker 01:
It's a large agency.

[00:24:47] Speaker 01:
I don't know the frequency with which individuals are subject to random drug testing.

[00:24:53] Speaker 02:
How many years was it?

[00:24:55] Speaker 02:
Was it eight, or was it?

[00:24:58] Speaker 01:
Your Honor, approximately seven or eight years, roughly.

[00:25:07] Speaker 04:
And were the other two people that were originally supposed to be the ones that were sent to drug testing, did they do the exact same job as he did, or did they do something else?

[00:25:16] Speaker 01:
I don't think we have the answer to that in the record, Your Honor.

[00:25:21] Speaker 01:
Those names come from a drug testing coordinator, and when somebody is not present on the day that they're supposed to have a random drug test, the drug testing coordinator selects a new name.

[00:25:33] Speaker 04:
Okay.

[00:25:33] Speaker 04:
All right.

[00:25:34] Speaker 04:
Thank you.

[00:25:35] Speaker 01:
Thank you, Your Honor.

[00:25:36] Speaker 01:
If I could just have a moment to wrap up.

[00:25:42] Speaker 01:
Mr. Hanson, when Mr. Hanson tested positive for marijuana, he ultimately lost the trust

[00:25:50] Speaker 01:
of his supervisors to serve in a highly sensitive position at a law enforcement agency.

[00:25:56] Speaker 01:
Because the board properly allocated the burdens of proof and made reasonable credibility determinations in sustaining the removal penalty, the court should affirm.

[00:26:07] Speaker 01:
Thank you.

[00:26:19] Speaker 00:
So if I may, Your Honor, let me start with the trust.

[00:26:23] Speaker 00:
So I hear that every time, and I'm sure you do too.

[00:26:27] Speaker 00:
Just very quickly, he was tested in April and proposed in April.

[00:26:31] Speaker 00:
He was removed in September.

[00:26:33] Speaker 00:
For six months, this man who no one could trust because he was such a druggie had every bit of access that he ever had.

[00:26:40] Speaker 00:
So I just, I bridle every time I hear this about trust.

[00:26:43] Speaker 04:
He told his friends that he

[00:26:46] Speaker 04:
thought he was going to lose his job.

[00:26:47] Speaker 04:
He had to have a reason to believe that his law enforcement job was dependent on bringing drugs free.

[00:26:53] Speaker 00:
Yeah.

[00:26:53] Speaker 00:
He understood the gravity of what he knew what he was up against.

[00:26:56] Speaker 00:
He tested positive for drugs.

[00:26:59] Speaker 00:
And even though he wasn't in a testing designated position, you know, he had no idea.

[00:27:03] Speaker 00:
But even though he was not in a position, he knew that's a big deal.

[00:27:07] Speaker 00:
That's it.

[00:27:07] Speaker 00:
It is a big deal.

[00:27:08] Speaker 00:
We're not disputing that.

[00:27:09] Speaker 04:
You can see that constitutional arguments are waivable, right?

[00:27:14] Speaker 00:
Certainly, they're waivable.

[00:27:15] Speaker 00:
We didn't waive anything.

[00:27:16] Speaker 00:
We raised this before the board.

[00:27:17] Speaker 00:
That's why the board addressed it.

[00:27:19] Speaker 00:
But we said that the government's part of their obligation, part of their, part of their burden to prove this case is to prove that he's in a testing designated position.

[00:27:31] Speaker 00:
They didn't prove it.

[00:27:32] Speaker 00:
They didn't prove it.

[00:27:33] Speaker 00:
And they didn't prove it.

[00:27:34] Speaker 00:
We kept searching.

[00:27:35] Speaker 00:
Please give us information.

[00:27:37] Speaker 00:
Tell us where these designations are.

[00:27:39] Speaker 00:
Motion it about where's the designation.

[00:27:41] Speaker 00:
They wouldn't come up with it.

[00:27:42] Speaker 00:
Finally, they didn't finally come up with it

[00:27:44] Speaker 00:
Closing brief.

[00:27:46] Speaker 00:
And even then, the AJ didn't buy that.

[00:27:48] Speaker 00:
And now they're saying there's substantial evidence to support a finding the AJ didn't make.

[00:27:53] Speaker 00:
But I have to address two things.

[00:27:56] Speaker 00:
One, very quickly, the affidavit that they refer to from the supervisor.

[00:28:00] Speaker 00:
The affidavit doesn't say that Mr. Hanson had access to these databases.

[00:28:05] Speaker 00:
It would have been a very simple thing for that supervisor to say, Mr. Hanson had access.

[00:28:11] Speaker 03:
Tell me more specifically, which declaration are you referring to?

[00:28:14] Speaker 03:
Who is the declarant?

[00:28:15] Speaker 00:
Bartlow, I believe her name is.

[00:28:17] Speaker 00:
And sorry, let me pull that page number for you.

[00:28:25] Speaker 04:
That's the one we were looking at before?

[00:28:27] Speaker 00:
You were looking at that one before.

[00:28:28] Speaker 00:
That's the one where she says he has privileged access.

[00:28:33] Speaker 00:
But privileged access, Your Honor, doesn't mean that he has access to classified.

[00:28:37] Speaker 03:
Page 123.

[00:28:39] Speaker 00:
I didn't go that far.

[00:28:42] Speaker 00:
I'm sorry.

[00:28:46] Speaker 00:
Yes, Bardot, 123.

[00:28:49] Speaker 00:
She says he has privileged access.

[00:28:51] Speaker 00:
She could have said, and including access to these specific databases.

[00:28:55] Speaker 00:
She didn't say that.

[00:28:56] Speaker 00:
And the reason she didn't say is because he doesn't have access to it.

[00:28:59] Speaker 00:
He doesn't have a security clearance.

[00:29:01] Speaker 00:
Those are law enforcement databases that you must have a security clearance to access.

[00:29:05] Speaker 04:
So he doesn't have any security clearance?

[00:29:06] Speaker 00:
He has no security clearance.

[00:29:09] Speaker 00:
So the affidavit doesn't say that.

[00:29:13] Speaker 00:
It could have.

[00:29:14] Speaker 00:
But I have to go back to this issue about whether they maintain a list of individuals.

[00:29:20] Speaker 00:
They certainly do.

[00:29:22] Speaker 00:
Their policy says individuals, not positions, individuals are placed into a pool of employees who occupy testing designated positions.

[00:29:32] Speaker 00:
Designated, mind you, not designatable.

[00:29:34] Speaker 00:
Designated.

[00:29:35] Speaker 00:
Individual specific notices.

[00:29:37] Speaker 00:
Individual specific notices.

[00:29:39] Speaker 00:
are sent to those employees, informing them of their inclusion in the random drug testing program.

[00:29:46] Speaker 00:
Never got that notice.

[00:29:47] Speaker 00:
Notification of selection.

[00:29:50] Speaker 00:
The employee is notified that he's been selected for drug testing.

[00:29:53] Speaker 00:
I think the form is on page 82 of the appendix.

[00:29:57] Speaker 00:
This is the form that Mr. Hanson should have received if he was actually designated to be tested.

[00:30:04] Speaker 00:
He never received it because he wasn't designated.

[00:30:07] Speaker 00:
And no, there is no reason to remand this, to give the government another chance.

[00:30:12] Speaker 00:
We dispute, notwithstanding the government's assertion of what that document says, that's not what it means.

[00:30:18] Speaker 04:
You're out of time.

[00:30:19] Speaker 00:
Thank you.