956 F2d 1173 Shelledy v. Department of Transportation

956 F.2d 1173

Stephen M. SHELLEDY, Petitioner,

No. 91-3505.

United States Court of Appeals, Federal Circuit.

Feb. 11, 1992.

NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Before RICH, PLAGER and COHN*, Circuit Judges.



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Shelledy appeals from the decision of the Merit Systems Protection Board (MSPB)** affirming the decision of the Department of Transportation (DOT or agency) to discharge Shelledy from his position as an air traffic control specialist. Shelledy was discharged effective July 23, 1988 for violating an agreement to abstain from involvement with illegal drugs. We affirm.



Stephen M. Shelledy entered employment with DOT as an air traffic control specialist in 1982. As a result of random drug testing which produced evidence of cocaine use, DOT proposed Shelledy's removal on January 28, 1988. The agency then agreed to a second chance because Shelledy admitted his cocaine use, agreed to enter a rehabilitation program, and consented to submit to random drug screening during his rehabilitation period. Shelledy was warned that any further involvement with illegal drugs would result in his removal.


In another random test on July 15, 1988, Shelledy tested positive for cannabinoids. DOT removed Shelledy for violating the agreement and for failure to demonstrate successful rehabilitation.


The MSPB after full hearing affirmed DOT's decision. The MSPB understood the prohibition against further involvement with drugs to be broader than proven use by Shelledy. In any event, based on the evidence and testimony presented, including that of various medical specialists, the MSPB concluded that the test results were due to active use of marijuana, and not to passive inhalation from being among other marijuana smokers, as Shelledy claimed.


The legal standard by which the Federal Circuit reviews decisions of the MSPB is that a decision must be affirmed unless it is found to be:


1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;


2) obtained without procedures required by law, rule or regulation having been followed; or

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3) unsupported by substantial evidence.


See 5 U.S.C. § 7703 (1988). On the record before us, there can be no doubt that the MSPB decision was correct.


Judge Avern L. Cohn of the Eastern District of Michigan, sitting by designation


Docket Number DE07528810381, June 21, 1991