there was an accident in a crane evolution and as a result of that accident he was wrongfully drug tested because a drug test was positive he was removed we are here today to argue on several counts that the test was not authorized and was not legal aid making a constitutional argument the constitutional argument we send to the interpretation of the regulation the controlling regulation in this case is on the porch and the shipyard post accident drug test ordinance it's specifically provides that in a ploy you can be tested if their actions are reasonably suspected of having cause to contribute to the accident constitutional argument comes in with the interpretation by the merit system protection board which changed that standard and the standard they've employed says that the proper standard on the p s rule is whether the agency had a reasonable concern is under the skin or to in this from where it recognizes that these drug tests typically have to be done quickly or the evidence is not about this year and so a judgment has to be made pretty much on the spot before the end of the leave the drug testers want to do agree with that yes but skinner did that based on the fact that there was a specific regulation that said anybody directly involved in the accident had to be could be drug tested now that was in an industry where regulating the railroads a pervasively regulated industry where there are serious accidents cut resulting so the question is now in terms of what the people order in the drug test after now there's a limited ability to investigate the accident if you're confined to the same  individual's interest and their expectation of privacy and skinner has been interpreted and we cited the case of us replaced which did a wonderful job of reviewing a litany of cases that involve this issue and in balancing that interest the court has said that the government interest is diminished and as the harm resulting from the accident is lesser but the expectation of privacy goes up i understand but i mean if they do have to make on the spot judgments necessarily going to have to make the judgment based on incomplete information here we have a situation in which your client was supervisor of the oval office ration and he had been absent themselves from the scene to go down to the submarine and he couldn't see the rain at the time you also have the obligation to brief the point very clearly is that it's not could have which is what the board used there must be some direct connection between the conduct of the employee and the accident they say specifically t but what they did find what fear says that he knew is that mr horn was down here the accident happened up here on the other side of a six story building mr fear testifies that from the evidence he gathered he believes authorized to be there he was they also said that if that then him he wouldn't that's discretionary mr phares own policy at the shipyard the blue and gold policy says specifically that you need to you have blue and gold gold and gold had is the supervisor the blue hat is regular in charge the way the procedure works is the gord ha briefed the crew if it's not a complex swift and this was not a complex left then he appoints a rigger in charge who specifically trained an authorized person to take over the crane evolution and that happened in this case and the work rule that's a work philosophy concept in terms of the triggering event what they need to look at at that moment is causation that the crane team concept is not a concept of causation it's a concept the responsibility it's like the three musketeers of one of his revolver all in forth that's not what our constitution says ronnie trombley who was the drug program coordinator will tell you in testify that the instruction did not provide that the whole team could just be tested like that there had to be reasonable suspicion and in this case know it's not that mr horton was inherent in doing what he did mr fear testified that he was fully authorized to do what he was doing but that's my problem see i'm not sure that at the time that it's possible different for you to prevail would we have to adopt the principle that there is not supervisory responsibility unless certain events take place such as  supervisor being on the scene ike i don't think that we you have to go that far i think you know you have to look at the facts when it happens and what was known and you judge whether or not there can be a drug test based on those facts as they were not and those facts do not establish our you know reasonable suspicion that he caused or contributed to the accident just because he's a supervisor doesn't mean he he could've car or he could have you have to determine whether he did in fact because one of the triggering events is reasonably suspected of causing one of the real events the whar riggering event that would you know likely cause or you know cause the accident so it's causation team concept is not causation quote is not causation i mean thank you your honor may it please the court the court should affirm the decision of the merit system protection board because because the board correctly found the name using ministration of the drug test was consistent with the fourth amendment in the shipyards drug testing the post accident drug testing the regulation at issue in this case say that the individual should be on the employee should be reasonably suspected of having caused or contributed to the accident and that threshold w the docks but specifically with regard to the blue and gold policy that mr holton counsel keeps referencing to there could be the rigor in charge could take on a greater role however that policy specifically that he would have followed the crane he was in that position and that it would have been his his preference that the supervisor in that case would have or in this particular case would have stayed with the crane because he could he has that crew he wasn't aware at that time whether he properly briefed the crew however he did state that while mr holton didn't violate necessarily any rule or regulation the policy number fifty one does charge to take morse for sponsibility at some points and the supervisor could leave for minimal periods of time unless you're at the point of most risk and it was established through mr thayer and mr banks in this case that the crane movement behind building three forty three was the most critical juncture and was the point of most risk in this case so even though mr bolton's counsel continued to cite the policy number fifty one 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 in addition as it is it's the same thing to say that that's indeed reasonable suspicion that someone caused or contributed to an accident and to say that i can i can then say if 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 your honor and looking in this in the specific unique nature of the crane team the eleven eleven member team where each individual has eleven each member of that team had a specific responsibility in the lifting and handling and specifically supervisor in this case has the responsibility for safety personnel and equipment and has that responsibility of stepping back in being able to identify particular safety issues or equipment issues had he been in the right place mr thayer testified that he likely would have seen as and he could have prevented it so making the decision to place him self at a point where he's not able to follow the crane not able to step back in how those crushed jacks he did cause or contribute to the accident in this case and the agency had the specific causation nexus as well as the the triggering events of damage over ten thousand dollars with regard to mr holton is argument that the board applied the wrong standard when looking at whether or not there was causing nation in this case we would argue that argument is weight if because it was not raised in the principle brief mr holt  in this case that 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 that regulation was ultimately overturned because it had the language involved in applying to all employees this case is more akin to skinner where you have a unique set of employees who are operating under safety and risk a great so they have a reduced expectation of policy or reduced expectation of privacy 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 well if you can't test everybody who's involved in an accident how do you test people who work actually involved in  yeah i apologize if i misunderstood the question in this case the test was for all of the employees who were involved in the accident and that goes back to the unique crane team concept in this case  trouble i have it's a look at skinner the soon to be two different standards that they apply the major accident synonymy trusses for the major accidents which this would fall into that category it talks about directly involved that's what the regulation provided there and then this other state and which must be somewhat looser is caused or contributed to this is that kind of mushy but  it looks as though they were so your honor in skinner there were the two separate regulations that were at issue the direct involvement that mandates the testing for all of the employees that were involved in the first more  permissive regulation which allowed testing based on a reasonable suspicion the employee contributed to the accident the regulation issue in this case is more akin to the second regulation in kennard which required  involved yes you know and it seems to me it's questionable as to whether that's the appropriate standard for a minor accident like this or not on retract yes so but at the same time would you agree with  may be that the agency isn't title to to test everybody who was involved in the lift your position is that because of the peculiar circumstances of supervisor hope that was was reasonable suspicion to test your honor if there is to it is a fair statement your honor however in this case with the unique concept of the crane team concept and that each of the eleven individuals did have a particular role i'm not sure but that the agency did have reasonable suspicion to test the entire team however in particular the agency had the reasonable vision that the supervisor cause or contributed to i how do we conclude that they actually it turman that they had reasonable suspicion when both of the decision makers didn't know they had to have reasonable suspicion your honor in their record it's clear that mr banks and mr thayer walk through the instruction together and determine what was necessary that they needed the ten thousand dollars worth of damage in a police report and that was it and your honor as they walk through and discuss the tent crane team concept and mr banks specifically says all members were involved so the record shows that mr banks and mr there w to be at the critical juncture pursuant to apollo that was his responsibility then there was a violation there was no violation how can it have been his responsibility the supervisor has the responsibility for the overall a policy you're correct your honor mr holton made the decision to leaving 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 or to make the call that if there was an improper rigging or a crane was coming off the track and mr thayer testified that had he been in the position where assumed he would have been as the supervisor he could have prevented this accident based on the difference between being contrary to the regulation of policy and be contrary to best practices honor with respect to if i understand your honour's question yes there is a difference well he wasn't in violation of the policy he's don't made a bad decision and i didn't make did not place himself in a part of the dock where he could observe the accident or could have prevented so that would be going to be one thing if you were sitting here and say it's hard to bring that that he is a player h discipline him for not engaging in best practices but that's a very different question than whether or not the fourth amendment would allow this kind of interest of search right yes your honor and here there was while he was not in violation of the policy there was definitely enough to believe to have a reasonable belief that he caused or contributed to the accident through his action or inaction and so the agency rightfully test  administered the drug test in this case so cern are arguing that there's nothing wrong with the policy that the whole team is given a drug test that is most the established that maybe had he been doing something else hypothetical suppose one member of the team as a responsibility to make sure the crate is moving too fast in his whole job is to measure the speed of the crane and make sure it stays under two miles an hour or something like that could could these circumstances to that person reasonably be tested it could be reasonable suspicion that that person contributed to the accident if i understand your question your honor yes there would be reasonable  testimony in understanding of what was going on that's important there are regulations that say if it's a complex left which is based on size and weight in those warts of things then the supervisor cannot leave the evolution this was not a complex lift again he was doing what he was permitted to do in he wasn't goofing off he was over preparing a landing area to put down the sixty thousand pound part interesting lee mr fear testif hundred supervisors cannot be everywhere at the same time they have to make choices in this case mr holton made a choice that was consistent with the policies responsibility to use discretion it's also important to note that this the record the crane team had been doing these moves zax a move over the course of prior to weeks and twelve to fifteen occasions they had performed the same pollution without a pro on the drug test is permissible only then can you look at whether he was higher not certainly there should be a strong possibility that people should not be under the influence but before you can determine somebody is under the influence you have to have the right to drug testament first place the mr fear testified that after his initial review of what transpired the only person that he thought should be drug tested was the crane operator mr banks who was a second approv