MENT OF JUSTICE,
Agency.
DOCKET NUMBER
SF-0752-02-0460-I-2
DATE: September 9, 2003
Michael P. Baranic, Esquire, San Diego, California, for the appellant.
Kimberly Jones, Esquire, Chula Vista, California, for the agency.
BEFORE
Craig A. Berg
Administrative Judge
INTRODUCTION
On May 31, 2002, the appellant filed a petition appealing the agencys
action removing him from the position of Border Patrol Agent, GS-9, with the
Immigration and Naturalization Service (INS), effective May 24, 2002. Initial
Appeal File (IAF), Tab 1.
1
The Board has jurisdiction over this appeal under 5

1
On August 20, 2002, I issued an initial decision dismissing this appeal without
prejudice subject to automatic refiling in order to avoid a lengthy delay in adjudication
due to difficulties in setting a hearing on a date all witnesses would be available to
testify. IAF, Tab 21. The appeal was automatically refiled on September 25, 2002.
IAF II, Tab 1. U.S.C. §§ 7511-7513, 7701. A hearing was held from February 5-7, 2003.
2
For
the reasons discussed below, the agencys action is AFFIRMED.
ANALYSIS AND FINDINGS
Background
The appellant was employed as a Border Patrol Agent at the San Diego
Border Patrol Sector, Brown Field Station for approximately four years prior to
the effective date of the removal action. The appellant was in a Testing
Designated Position, and was subject to random drug testing for marijuana,
cocaine, opiates, amphetamines, and PCP. IAF, Tab 4, Subtab 4ii. On February
8, 2001, the appellant was instructed to provide a urine sample for a random test.
He provided the sample at Health South (now U.S. Healthworks), in Chula Vista,
California, and it was sent to Northwest Drug Testing laboratory (now NWT,
Inc.) for testing. Id., Subtabs Y & Z. On February 21, 2002, the agency was
notified that the appellants urine sample had tested positive for marijuana, and
the agencys contracted Medical Review Officer notified the appellant of the
positive test result. Id., Subtab 4hh. The agency relieved the appellant of his
service-issued firearm, badge and credentials, placed him on administrative duty,
and referred him to the agencys Employee Assistance Program (EAP). Id.,
Subtabs 4hh, 4dd, 4ee, 4ff. The appellant informed the agency that the positive
result must have been caused by his consumption of supplement nutrient bars he
had consumed, and further asserted that the testing facility had failed to follow
proper procedures in collecting his urine sample. Id., Subtab bb.
Following an agency investigation into the appellants allegations, on June
27, 2001, the agency proposed the appellants removal on a charge of Testing
Positive for Controlled Substance in Random Testing. IAF, Tab 4, Subtab 4x.

2
Because one of the agencys witnesses, Dr. Gero Leson, was unavailable during the
scheduled hearing dates, his testimony was taken telephonically on January 9, 2003, by
agreement of the parties. IAF II (January 9, 2003 Hearing Tapes). The appellant obtained counsel and provided two oral responses to the charge, as
well as written materials and a videotape. Id., Subtabs 4d, 4m. The deciding
official sustained the charge and the penalty. Id., Subtab 4b.
The Charge
The agency bears the burden of proving by a preponderance of the evidence
that the test on which it relied to remove the appellant was valid. 5 C.F.R.
§ 1201.56(a)(1)(ii); see Boykin v. U.S. Postal Service, 51 M.S.P.R. 56, 58 (1991).
In so doing, the agency must establish the chain of custody of the sample that was
tested. Id. at 58. In addition, where, as here, there is a claim that a positive drug
test was false because it was the result of ingestion of a product other than the
controlled substance in question, the Board will review the evidence and make a
finding on that claim. See, e.g. Vincent v. Department of Transportation, 47
M.S.P.R. 550, 552 (1991) (administrative judge considered whether the ingestion
of a natural food product could cause a false positive for PCP).
The agency established a proper chain of custody for the appellants urine sample
The appellants arguments
The appellant argues that the evidence shows that the facility employed by
the agency to collect the appellants urine sample was lax in its adherence to
testing protocol, and that as a result, there were several breaks in the chain of
custody of the sample. IAF II, Tab 36. More specifically, he argues that the
collector did not open up the testing packet in front of him, that the collector
directed him to use a regular restroom in which to provide the sample, rather than
the controlled restroom that contains a toilet with blue dye and lacks running
water, that the collector left the unsealed vial (which would ultimately contain the
portion of the sample sent for testing) unattended while he escorted the appellant
to the restroom, and that the collector walked out of his sight when he (the
collector) made the transfer of the sample to the vial from the collection cup. Id. Evidence
The record contains the Urinalysis Drug Testing Documents Package
(referred to as the litigation packet) submitted to the agency by NWT, the testing
laboratory. IAF, Tab 4, Subtab 4Z. The packet includes a Summary of the
laboratory report showing the appellants social security number as the
Employee/Applicant I.D. No., the sample number as 10917634, and the
Laboratory Accession Number as 708373. Id. at 1. The Summary states that
the urine sample was tested on February 13, 2001 by use of immunoassay, that it
tested positive for marijuana metabolites, that on the same date a select ion gas
chromatography/mass spectrometry (GC/MS) test was performed on the sample
and revealed a positive test for the drug metabolite 11-nor-9-carboxy-delta-9-
tetrahydrocannabinol (THC) at a level of 57 nanograms per milliliter (ng/ml). Id.
It further states that the metabolite identified is produced by the metabolization of
marijuana, and that it was greater then 15 ng/ml, which is the minimum
concentration required by the Department of Health & Human Services (DHHS)
to call a specimen positive for marijuana. Id. The Summary is certified by Dr.
David Kuntz, the Laboratory Director, and the certification also asserts the
accuracy of the attached documents, which include the chain of custody
documents, the testing documents, and the instrument printouts. Id.
The litigation packet further contains Dr. Kuntzs affidavit setting out his
educational and employment background, explaining the labs chain of custody
policies, summarizing in some detail the drug testing procedures, explaining the
immunoassay and GC/MS tests, and providing information regarding the tests
used to detect adulterants. IAF, Tab 4, Subtab 4Z at 2-7. With regard to the
chain of custody policies, the doctor explained that the specimen will be at all
times either in the possession of a member of the NDT staff or maintained in a
secured storage area. Id. at 2. He stated that each specimen is labeled, sealed,
and accompanied by a chain of custody document, that a processor assumes
custody of the specimen when it arrives and checks to ensure it is sealed, that the identifiers on the sample match those on the chain of custody form (CCF), that
the form has been correctly annotated, and that there is sufficient volume for the
required testing. Id. at 3. He further averred that the specimen identification and
company account number are then placed in the computer system, an internal
accession number is generated and placed on the form, on the attachments and on
the tube used for screening; at that point, a portion of the specimen is placed in
the pre-labeled tube, the original bottle is stored securely, and the tube is placed
in a rack for testing. Id. Each time the specimen is tested, a CCF is generated to
document transfer. Id. Dr. Kuntz concluded that GC/MS is widely accepted in
the scientific community as the state-of-the-art technique for confirmation of
drugs in a urine sample, and that a positive test is only reported if there is a valid
chain of custody record and both the immunoassy and GC/MS tests detect the
drug in the specimen. Id. at 8.
Dr. Michael Feldman, Dr. Kuntzs supervisor and the General Manager of
NWTs drug testing division, testified that the employee identification number,
laboratory accession number, and the chain of custody number in Dr. Kuntzs
Summary are taken from the CCF, which is part of the litigation packet.
Transcript (Tr.) I at 10-11; IAF, Tab 4, Subtab 4Z at 10 (CCF). He explained that
the custody and control number, which is in the upper left of the CCF is pre-
printed on that form before it is sent to the client (the INS in this case), and that
the laboratory accession number in the upper right is used to track the sample.
Tr. I at 11. Dr. Feldman reiterated that the laboratory found the presence of
marijuana metabolites in the app