NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

CHRIS LANIER,

Petitioner

v.

DEPARTMENT OF THE AIR FORCE,

Respondent

______________________ 

2022-2166

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-0752-21-0487-I-1.

______________________ 

Decided: January 30, 2024

______________________ 

MICHELLE SMITH, Michelle Smith Attorney at Law, 

Warner Robins, GA, argued for petitioner.

 JOSHUA MOORE, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by BRIAN 

M. BOYNTON, PATRICIA M. MCCARTHY, CORINNE ANNE 

NIOSI. 

______________________ 

Before CUNNINGHAM, BRYSON, and STARK, Circuit Judges.

Case: 22-2166 Document: 45 Page: 1 Filed: 01/30/2024
2 LANIER v. AIR FORCE

BRYSON, Circuit Judge.

 Petitioner Chris Lanier was formerly employed as an 

electronics mechanic at Robins Air Force Base in Georgia. 

In 2021, he was removed from his position based on a failed 

drug test. Mr. Lanier appealed to the Merit Systems Protection Board, which upheld the removal action. He now

challenges the Board’s decision on several procedural 

grounds. Finding no reversible error by the Board, we affirm.

I 

On August 26, 2020, during the course of his employment, Mr. Lanier was subjected to routine drug testing. He 

provided a urine sample, which tested positive for methamphetamine, an illicit drug. In November 2020, Mr. Lanier 

was given a notice of proposed removal predicated on the 

positive drug test. S. App. 74–77.

Mr. Lanier denied having used methamphetamine. 

Asked to explain his positive drug test, he speculated that 

it may have resulted from his use of medicines he had 

taken to combat a respiratory infection. Id. at 49. After 

investigating the issue, the deciding official concluded that 

the medicines Mr. Lanier said he had taken could not have 

produced a positive result given the testing protocol used 

on his sample. Id. at 52–62. After giving Mr. Lanier several opportunities to respond to the notice of proposed removal, the Air Force issued a decision removing him from 

his position. Id. at 36–38.

Mr. Lanier appealed from the removal action, and on 

October 20, 2021, a Board administrative judge held a 

hearing on his appeal. Shortly thereafter, the administrative judge issued an initial decision upholding Mr. Lanier’s 

removal. Id. at 14–34. Mr. Lanier then filed a petition for 

review with the full Board. On June 28, 2022, the full 

Board denied the petition and affirmed the administrative 

judge’s initial decision. Id. at 6–13.

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LANIER v. AIR FORCE 3

II

A 

Mr. Lanier challenges his removal on several grounds. 

His strongest claim is one that surfaced for the first time 

during the hearing before the administrative judge. Dr. 

Robert Fierro, the lead medical review officer responsible 

for reviewing Mr. Lanier’s test results, testified about the 

process his office follows after a positive drug test. Dr. Fierro explained that when a particular sample tests positive, his office attempts to contact the donor of the sample 

to determine if there is an innocent explanation for the positive result. Hearing Recording 2 at 1:29–1:55, 2:45–4:13, 

Lanier v. Dep’t of the Air Force, AT-0752-21-0486-I-1 

(M.S.P.B. Oct. 20, 2021). 

Dr. Fierro testified that after Mr. Lanier’s test results 

came back positive, Dr. Fierro’s staff attempted to contact 

Mr. Lanier multiple times at the phone number Mr. Lanier 

had provided. Those efforts were unsuccessful. According 

to Dr. Fierro, messages were left for Mr. Lanier, and his 

designated employer representative was asked to have Mr. 

Lanier return the call. Id. at 4:15–5:36, 10:13–10:35. Mr. 

Lanier did not return those calls. Id. at 5:28–5:36, 6:47–

7:00. At the hearing, Mr. Lanier testified that he was unaware of any telephone calls or messages left for him. 

Hearing Recording 3 at 2:15–4:43, Lanier v. Dep’t of the Air 

Force, AT-0752-21-0486-I-1 (M.S.P.B. Oct. 20, 2021). 

Dr. Fierro explained that the reason his office called 

donors when their tests came back positive was to explain 

the results of the test and explore medical reasons why the 

donor would be positive, which would include reviewing 

drugs the donor was taking and “medical conditions that 

the donor might have, such as diabetes, which could cause 

a low pH and thus the donor would be positive.” Hearing 

Record 2 at 3:06–3:42. If the office was unable to determine 

an medical reason why the test would be positive, it would 

report a positive result.

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4 LANIER v. AIR FORCE

During his cross-examination, Dr. Fierro said that certain medical conditions can explain a positive drug test. As

an example, he said that diabetes “produces a low pH, and 

a low pH gets flagged and comes across my desk, and I talk 

to the donor and we find out that they had diabetes . . .

and we make the test negative. We actually cancel it.” Id.

at 8:03–8:28.

In the course of his direct examination later in the 

hearing, Mr. Lanier testified that in May 2021, he was diagnosed with diabetes. Hearing Recording 3 at 4:46–5:08. 

He did not at that time offer any corroborating evidence of 

his diagnosis, such as medical records. In the initial decision, the administrate judge noted that “the appellant produced no independent testimony or evidence to support his 

asserted diabetes diagnosis.” S. App. 18–19. The administrative judge then explained that “[a]bsent such corroboration, I do not find the appellant’s testimony credible or 

persuasive.” Id. at 19. 

Mr. Lanier did not submit medical records corroborating his diabetes diagnosis to the administrative judge, either at the hearing or afterwards. Instead, he petitioned 

for review of the initial decision by the full Board. In his 

petition, filed on December 1, 2021, he raised the argument 

that his test results may have been attributable to his diabetes, but he did not attach or refer to any corroborating 

medical evidence. See Petition for Review File, Tab 1, Lanier v. Dep’t of the Air Force, AT-0752-21-0486-I-1 

(M.S.P.B. Dec. 1, 2021) (S. App. 5). It was not until his 

representative filed a supplemental petition on January 3, 

2022, that he offered medical evidence that he was in fact 

diagnosed with diabetes as early as May 2021. Petition for 

Review File, Tab 5, at 9–22, Lanier v. Dep’t of the Air Force, 

AT-0752-21-0486-I-1 (M.S.P.B. Jan. 3, 2022) (S. App. 5). 

The full Board upheld the administrative judge’s decision. With respect to the diabetes issue, the Board noted 

that the medical records regarding Mr. Lanier’s diagnosis 

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LANIER v. AIR FORCE 5

“were available before the record closed below, and the appellant’s explanation as to why he was unable to submit 

them then is not persuasive.” S. App. 7 n.2. The Board 

further explained that it “generally will not consider evidence submitted for the first time with a petition for review 

absent a showing that it was unavailable before the record 

closed despite the party’s due diligence.” Id.

B 

Mr. Lanier’s challenge to the Board’s decision on the 

diabetes issue focuses principally on the Board’s failure to 

take into consideration the medical records that Mr. Lanier 

submitted for the first time to the full Board with his supplemental petition for review. The Board, however, is not 

required to consider evidence that was not first presented 

to the administrative judge if the evidence could have been 

obtained earlier with the exercise of due diligence. See

Brenneman v. Office of Pers. Mgmt., 439 F.3d 1325, 1328 

(Fed. Cir. 2006) (“[A] party submitting new evidence in connection with a petition for review must satisfy the burden 

of showing that the evidence is material and that it could 

not have been obtained earlier with the exercise of due diligence.”); Azarkhish v. Office of Pers. Mgmt., 915 F.2d 675, 

679 (Fed. Cir. 1990) (explaining that the full Board did not 

abuse its discretion in denying review of the administrative 

judge’s decision despite the submission of the new evidence 

with the petition for review because the petitioner did not 

show that the new evidence was “not available when the 

record closed.”); see generally Bosley v. Merit Sys. Prot. Bd., 

162 F.3d 665, 668 (Fed. Cir. 1998) (“A party in an MSPB 

proceeding must raise an issue before the administrative 

judge if the issue is to be preserved for review in this court. 

Thus, if the party fails to raise an issue in the administrative proceeding or raises an issue for the first time in a petition for review by the full Board, this court will not 

consider the issue.”). 

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6 LANIER v. AIR FORCE

In his brief, Mr. Lanier asserts that his medical records 

“were unavailable at the time of the initial hearing.” Petitioner’s Br. 3. But that statement is unsupported and is 

contrary to the conclusion of the Board that the “documents 

were available before the record closed before the administrative judge.” S. App. 7 n.2. Because the blood tests that 

formed the basis for Mr. Lanier’s diagnosis were conducted 

in May 2021, it is highly unlikely that the test results were 

unavailable as of October 2021 when the hearing before the 

administrative judge was conducted. And even if the testimony about the effect of diabetes on drug testing came as 

a surprise to Mr. Lanier, he admitted that he was aware of 

his diagnosis as of that time. Mr. Lanier has not shown 

that there was any impediment to his obtaining the medical records of his diagnosis and seeking to have them made 

part of the record before the administrative judge.

Beyond that, the record reflects that Mr. Lanier’s urine 

sample was subjected to two different tests—an immunoassay test and a gas chromatography/mass spectrometry

(“GC/MS”) test. See Hearing Recording 1 at 6:19–8:14, 

19:16–20:15, Lanier v. Dep’t of the Air Force, AT-0752-21-

0486-I-1 (M.S.P.B. Oct. 20, 2021); S. App 113. The latter is 

the more robust test. In this case, both tests produced a 

positive result. Id. at 15:34–15:58.

In his supplemental petition for review and again in his 

brief, Mr. Lanier cited an article describing the susceptibility of an immunoassay test to false positive results due to 

its cross-reactivity with other compounds, such as Metformin, a diabetes medication. See Petitioner’s Br. 3; Petition 

for Review File Tab 5, at 5–6 (citing Alec Saitman et al., 

False-Positive Interferences of Common Urine Drug Screening Immunoassays, 38 J. ANALYTICAL TOXICOLOGY 387 

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LANIER v. AIR FORCE 7

(2014)).1 Significantly, that article referred only to crossreactivity issues with the immunoassay test, and not with

the GC/MS test. In fact, the article recommended that the 

“best practice” following a positive immunoassay drug test 

“involves confirmation with the mass spectrometry (MS) 

technique such as gas chromatography—mass spectrometry (GC-MS).” S. App. 250. That was exactly the test used 

to confirm Mr. Lanier’s positive drug test results. Mr. Lanier’s reliance on the Saitman article is therefore unpersuasive, as it does not account for the fact that his urine 

sample was subjected to both tests, not just the immunoassay test. 

In sum, we conclude that the Board committed no error 

in its disposition of the diabetes issue. It is possible that if 

that issue had been further developed at the hearing or 

shortly thereafter, it would have called for more careful 

scrutiny by the administrative judge. But the issue arose 

at the hearing only incidentally, and it was not pursued to 

the extent necessary to support Mr. Lanier’s current theory 

that his positive drug test was attributable to a later-diagnosed medical condition that had not been identified at the 

time of the drug test. Given the procedural posture of the 

case, it was not error for the Board to hold that the diabetes 

theory did not call for reversal of the decision to remove Mr. 

Lanier from his position.

III

Mr. Lanier raises or alludes to several other procedural 

issues, none of which has merit.

1 Mr. Lanier submitted this article as an exhibit to 

his supplemental petition for review. See S. App. 7 n.2, 

250-54. 

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8 LANIER v. AIR FORCE

A 

At several points in his brief, Mr. Lanier contends that 

his drug sample was “overdiluted by the lab” and that the 

overdilution rendered the drug test unreliable. Petitioner’s 

Br. 1, 5, 6. A report from Colonel Lindsay Droz, the deciding official, noted that Mr. Lanier’s sample was marked 

“overdiluted” in the materials relating to the testing process. S. App. 49, 132. But she added that “after reading 

the description of the procedure . . . it appears that this 

refers to the fact the sample itself was overdiluted, not that 

the lab itself diluted the sample.” Id. at 49. Mr. Lanier 

never developed the “overdilution” theory before the administrative judge, and he has failed to show that the purported overdilution of the sample could have produced a 

false positive result on his drug test.

B 

Mr. Lanier next contends that there was a gap in the 

chain of custody for the drug sample as it made its way to 

the testing facility. Petitioner’s Br. 1, 2, 5. That argument 

is contrary to the parties’ pre-hearing stipulation that 

“[t]he Appellant’s specimen . . . tested positive for an illicit 

drug, methamphetamines.” S. App. 15. Moreover, even 

apart from the stipulation, the chain of custody issue is insubstantial. It is based on the contention that the FedEx 

documentation prepared at the time the sample was picked 

up did not include a reference to the time and date of the 

pickup. There was no suggestion, however, that the package sent from the testing facility, which contained the sample together with documentation confirming that it was 

Mr. Lanier’s sample, was not the same package that was 

received by the testing lab.

C 

At the hearing before the administrative judge, Mr. Lanier’s representative raised an issue regarding the scientists who signed off on the positive report regarding Mr. 

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LANIER v. AIR FORCE 9

Lanier’s drug sample. At the time that report was prepared, two of the three certifying scientists who reviewed 

the report signed off on it by initialing and dating the report. At that time, the third certifying scientist who reviewed the report neglected to initial and date the report. 

According to the testimony of Jean Chambers, supervisory 

forensic chemist at the laboratory, that omission was later 

noted, and the third certifying scientist signed off on the 

report at that later date. See S. App. 133–34; Hearing Recording 1 at 11:16–12:26. The third certifying scientist prepared a Memorandum for Record explaining the oversight 

and confirming that she reviewed the report and certified 

the test results at the same time as the other scientists who 

signed off on it. S. App. 133; Hearing Recording 1 at 11:32–

12:26. 

Ms. Chambers agreed that the third scientist’s error in 

not contemporaneously initialing and dating the report did 

not affect the test results. Id. at 12:30–12:38. Moreover, 

she noted that only two scientists were required to sign off 

on the report. Hence the third scientist’s signature was superfluous in any event. See id. at 11:30–11:55, 32:27–

32:44. 

The administrative judge found that there was no evidence that the clerical error “is likely to have caused the 

agency to reach a conclusion different from the one it would 

have reached in the absence or cure of the error.” S. App. 

20. Mr. Lanier provides no reason to reject the administrative judge’s conclusion on that issue.

D

Another issue alluded to in Mr. Lanier’s brief is his 

claim that he had taken some expired cold medicine containing pseudoephedrine around the time of his drug test 

and that the cold medicine might have caused his positive 

drug test. Ms. Chambers testified, however, that over-thecounter medicines containing pseudoephedrine do not contain the isomer of pseudoephedrine found in 

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10 LANIER v. AIR FORCE

methamphetamine. For that reason, she explained, the 

GC/MS test used to test Mr. Lanier’s urine sample would 

not have triggered a positive result based on the presence 

of such cold medicines in Mr. Lanier’s system. Hearing Recoding 1 at 18:56–20:18. To the extent Mr. Lanier contended that the medicines he took were old prescription 

medicines from a previous illness in 2015, the administrative judge found that Mr. Lanier provided no evidence that 

he had been prescribed medications that might have 

caused the positive test result. S. App. 18. The record contains substantial evidence supporting the administrative 

judge’s finding on that issue.

E 

During the removal process, Mr. Lanier offered a drug 

test that he procured from a private source. S. App. 51. 

That drug test returned a negative result for methamphetamine. Id. Mr. Lanier’s brief mentions that test, but does 

not argue that it was error for the agency to disregard it. 

In any event, the record clearly contains substantial evidence showing that it was not improper for the agency to 

disregard Mr. Lanier’s private drug test. Ms. Chambers 

testified that methamphetamine has a short half-life in the 

body, with 60% of the drug being excreted within 48 hours 

of drug use. Hearing Recording 1 at 21:00–21:16. For this 

reason, Mr. Lanier’s private drug test, taken four months 

after the agency’s test, was of no probative value regarding 

whether the initial test results were erroneous. See id. at 

20:39–21:36. 

Based on that evidence and corroborating testimony 

from Dr. Fierro, the administrative judge found that Mr. 

Lanier’s privately procured negative test result from December 2020 did not disprove the positive test from August 

2020. S. App. 20. That conclusion is plainly supported by 

substantial evidence.

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LANIER v. AIR FORCE 11

F

Finally, Mr. Lanier argues that in light of his clean disciplinary record, the Air Force should have considered a 

lesser penalty than removal. The deciding official testified, 

however, that her choice of penalty was based on a consideration of all the so-called Douglas factors bearing on the 

choice of penalty. See Douglas v. Veterans Admin., 5 

M.S.P.R. 280 (1981). She testified that she chose the penalty of removal based largely on the nature and seriousness 

of the charge and the highly sensitive nature of Mr. Lanier’s work—repairing U.S. Air Force aircraft. Hearing 

Record 2 at 30:00–31:24. 

The administrative judge noted that the deciding official had considered each of the Douglas factors, including 

mitigating factors such as Mr. Lanier’s good job performance and otherwise clean disciplinary record. Reviewing 

the deciding official’s choice of removal as a penalty, the 

administrative judge found that the penalty did not exceed 

the bounds of reasonableness because “the charge of use of 

an illicit drug is especially serious given the duties of the 

appellant’s position.” S. App. at 25.

When the Board sustains an agency’s penalty choice 

as reasonable, we uphold that penalty determination unless it is “clearly excessive or an abuse of discretion.” Coleman v. U.S. Secret Serv., 749 F.2d 726, 729 (Fed. Cir. 1984);

see also Mings v. Dep’t of Justice, 813 F.2d 384, 390 (Fed. 

Cir. 1987) (court will uphold the agency’s choice of penalty 

“unless the severity of the agency’s action appears totally 

unwarranted in light of all the factors”); Gonzales v. Def. 

Logistics Agency, 772 F.2d 887, 889 (Fed. Cir. 1985) (penalty will be upheld unless it is “so harsh and unconscionably disproportionate to the offense that it amounts to an 

abuse of discretion”). The penalty imposed by the agency 

in this case does not rise to that level. We therefore reject 

Mr. Lanier’s challenge to the agency’s choice of penalty.

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12 LANIER v. AIR FORCE

IV

Finding no harmful error in the procedures leading to 

Mr. Lanier’s removal and in the Board proceedings sustaining that removal, we uphold the Board’s decision.

No costs.

AFFIRMED

Case: 22-2166 Document: 45 Page: 12 Filed: 01/30/2024