NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3007 

VICTOR SALAS, JR., 

Petitioner, 

v. 

DEPARTMENT OF HOMELAND SECURITY, 

Respondent. 

Michael P. Baranic, Gattey Baranic LLP, of San Diego, California, for petitioner. 

J. Reid Prouty, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent. With him on 

the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeanne E. 

Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel were 

Marla T. Conneely and David M. Hibey, Trial Attorneys. 

Appealed from: Arbitrator’s Decision
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3007 

VICTOR SALAS, JR., 

 Petitioner, 

v. 

DEPARTMENT OF HOMELAND SECURITY, 

Respondent. 

Petition for review of an arbitrator’s decision by Harry N. MacLean. 

 ___________________________ 

 DECIDED: October 8, 2008 

 ___________________________ 

Before BRYSON, GAJARSA, and DYK, Circuit Judges. 

PER CURIAM. 

Petitioner Victor Salas, Jr., (“Salas”) petitions for review of an arbitrator’s award. 

The award denied his grievance. He claims that he was improperly removed from his 

position with U.S. Customs and Border Protection (“agency”), an agency within the 

Department of Homeland Security, for testing positive for a controlled substance in a 

random drug test. We affirm. 

BACKGROUND 

Salas began working for the agency as a border patrol agent in January 2002. In 

May 2005 he became a canine handler. On August 1, 2006, Salas and other agents 

were notified that they had been selected for a random drug test. During his test, Salas 

handed his unsealed sample to the specimen collector, who walked out of the restroom 
with it. Salas then washed his hands, rejoined the specimen collector, and initialed a 

strip that the specimen collector then placed on the cap and body of a sample container. 

The agency sent the sample to an outside testing laboratory, which found that the 

sample tested positive for cocaine. 

On September 7, 2006, the agency proposed to remove Salas from his position 

for his positive drug test. On October 19, 2006, Salas, through counsel, objected to the 

agency’s proposed removal, inter alia, on the ground that Salas’s sample had been 

collected improperly because the specimen collector had removed the sample from 

Salas’s sight before sealing it. The agency removed Salas from his position on 

November 6, 2006. 

Salas subsequently filed a grievance, and the arbitration hearing was held on 

June 20, 2007. Test results from a urine sample were introduced. Counsel for both 

parties described the test results as being from Salas’s sample. At this hearing, the 

agency called one of Salas’s supervisors as a witness, who testified that Salas 

participated in a random drug test on August 1, 2006. The agency also called as a 

witness the medical review officer who had interpreted the report prepared by the 

outside laboratory that analyzed the sample. The medical review officer testified that 

the laboratory report showed that the sample tested positive for cocaine, and that 

another laboratory’s analysis reconfirmed this positive test. 

However, the agency did not present testimony regarding the chain of custody of 

Salas’s sample. Salas testified that he lost sight of his unsealed sample when the 

specimen collector walked out of the restroom. On cross-examination, the medical 

review officer admitted that a sample should not leave the donor’s sight until it is sealed. 

2008-3007 2 
In his post-hearing brief, Salas asserted that his loss of sight of the sample raised 

questions about whether the sample was his. On August 8, 2007, the arbitrator denied 

Salas’s grievance, finding Salas’s testimony regarding his brief loss of sight of his 

sample to be “insufficient to justify disregarding the test results,” and concluding that the 

agency proved by a preponderance of the evidence that Salas tested positive for 

cocaine in a random drug test. 

Salas timely appealed to this court, and we have jurisdiction pursuant to 5 U.S.C. 

§ 7121(f) and 5 U.S.C. § 7703(a)(1), (b)(1). 

DISCUSSION 

We review the arbitrator’s decision under the same standards that apply to 

appeals from decisions of the Merit Systems Protection Board. See 5 U.S.C. § 7121(f); 

Dixon v. Dep’t of Transp., 8 F.3d 798, 803 (Fed. Cir. 1993). We must affirm the 

arbitrator’s decision unless it was “(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 (3) unsupported by substantial evidence.” 

5 U.S.C. § 7703(c). “Substantial evidence . . . means such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.” Consol. Edison 

Co. v. Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938). 

Salas asserts that, because he briefly lost sight of his sample, the agency did not 

meet its burden of proving that the sample testing positive was his. The possibility that 

Salas’s sample was misidentified or tampered with while he lost sight of it is speculative. 

Salas described his brief loss of sight of his sample but presented no other testimony or 

evidence at the hearing suggesting that the sample was not his. 

2008-3007 3 
2008-3007 4 

On review, Salas asserts for the first time that the agency was required to 

present witnesses at his arbitration hearing to testify to his sample’s chain of custody 

under Boykin v. U.S. Postal Service, 51 M.S.P.R. 56, 58 (M.S.P.B. 1991) (finding that 

an agency did not meet its burden of showing a drug test was valid when the testimony 

of its witnesses was insufficient to prove the chain of custody). We have held that a 

drug test sample’s “chain of custody must be strong enough so that, on the record as a 

whole, the decision of the arbitrator can be found to be supported by substantial 

evidence.” Frank v. Dep’t of Transp., Fed. Aviation Admin., 35 F.3d 1554, 1557 (Fed. 

Cir. 1994) (citing Dixon, 8 F.3d at 804). Salas did not raise this issue at the hearing or 

in his post-hearing brief. Indeed, at the hearing his counsel referred to the test results 

as being from Salas’s sample. Because “we do not consider issues that were not raised 

in the proceedings below,” Frank, 35 F.3d at 1559, Salas cannot for the first time on 

review challenge the agency’s failure to present witness testimony to the proof the chain 

of custody.

For these reasons, we affirm. 

COSTS 

No costs.