NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

TIMOTHY E. BAKER,

Petitioner

v.

DEPARTMENT OF THE NAVY,

Respondent

______________________ 

2021-1898

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-0752-21-0024-I-1.

______________________ 

Decided: October 7, 2021

______________________ 

TIMOTHY E. BAKER, Bremerton, WA, pro se. 

 KYLE SHANE BECKRICH, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent. 

 ______________________ 

Before NEWMAN, REYNA, and CHEN, Circuit Judges. 

PER CURIAM.

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2 BAKER v. NAVY

Timothy E. Baker appeals the decision of the Merit 

Systems Protection Board (Board) affirming the decision of 

the Department of the Navy (Navy) to remove Mr. Baker 

from the position of Machinist, WG-3414. See Baker v. 

Dep’t. of the Navy, No. SF-0752-21-0024-I-1, 2021 WL 

533572 (M.S.P.B. Feb. 10, 2021) (Board Decision). Because

the Board’s decision is supported by substantial evidence, 

we affirm. 

BACKGROUND

On May 20, 2020 a naval officer was informed of “an 

individual who was using an unknown substance while in 

their vehicle.” Suppl. App.1 18. Upon investigation, the 

officer observed Mr. Baker smoking in a manner inconsistent with the use of tobacco or marijuana. Id. The officer reported the incident to Mr. Baker’s supervisor. Id. 

In his written report, the officer noted that “this behavior 

had been consistently observed prior to this, both prior to 

shift and during the lunch break for the shift.” Id. As a 

result, Mr. Baker’s superintendent authorized a test for illegal drug use based on reasonable suspicion. Board Decision at 2 (citing Initial Appeal File and hearing testimony); 

see also Suppl. App. 20 (describing the reason for the drug 

test as “reasonable suspicion/cause”). On May 28, 2020, 

Mr. Baker tested positive for amphetamines and methamphetamines. Suppl. App. 19–20. On June 1, 2020, the results were confirmed by gas chromatography-mass 

spectroscopy, which revealed amphetamine levels of 1,021 

nanograms per milliliter and methamphetamine levels of 

more than 2000 nanograms per milliliter. Suppl. App. 19. 

These concentrations are, respectively, more than four and 

1 “Suppl. App.” citations are to the appendix filed 

concurrently with the government’s responsive brief. 

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BAKER v. NAVY 3

eight times the cutoff levels that trigger a positive drug test 

result. 29 C.F.R. § 40.87. 

The Medical Review Officer, Dr. Robert Fierro, reviewed the test results and discussed those results with 

Mr. Baker. Board Decision at 3. During that discussion, 

Mr. Baker mentioned that he was taking dietary supplements, but provided no further detail. Id. In his report, 

Dr. Fierro concluded that there was “[n]o legitimate medical explanation” for the positive test results. Suppl. App.

20.

On June 10, 2020, Mr. Baker was notified he would be 

suspended from access to classified information and assignment to a sensitive position because of his positive 

drug test. Board Decision at 3. Following that notice, 

Mr. Baker met with his supervisor and presented expired 

prescription medications as a justification for the positive 

drug test. Id. During that meeting, Mr. Baker made no 

representation about his use of methamphetamines or 

weight loss supplements. Id. The Navy subsequently suspended Mr. Baker indefinitely due to his loss of security 

clearance. Id. at 4. 

On August 11, 2020 the Navy issued Mr. Baker a notice 

of proposed removal based on his positive drug test and Executive Order 12564, which requires federal employees to 

refrain from using illegal drugs on or off duty. Id. 

Mr. Baker did not respond to the notice and his removal 

became effective on September 15, 2020. Id. 

On October 9, 2020, Mr. Baker appealed his removal 

before the Board. Id. at 1. The Board considered documents and testimony reciting the foregoing as well as articles theorizing that the ingestion of dietary supplements 

could result in a positive drug test, the results of at-home 

drug tests, and images of dietary supplements that 

Mr. Baker submitted. Board Decision at 5–6. The Board 

affirmed Mr. Baker’s removal because the Navy proved, by 

a preponderance of the evidence, “the charge of drug use 

Case: 21-1898 Document: 18 Page: 3 Filed: 10/07/2021
4 BAKER v. NAVY

(methamphetamines),” that there was “a nexus between 

the misconduct and the efficiency of the service,” and that 

“the penalty of removal did not exceed the tolerable limits 

of reasonableness.” Id. at 7. In particular, the Board was 

persuaded by Dr. Fierro’s testimony that no prescribed 

medication could cause a positive result at the level of Mr. 

Baker’s drug test. Id. at 6. 

On appeal, Mr. Baker contends that the Board failed to 

properly consider his submitted articles, the results of athome drug tests, and photographs of dietary supplements. 

Appellant’s Br. 1. Mr. Baker requests reinstatement. Id.

at 2.

DISCUSSION

This court has jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(9) and may review the final decision of the Board. 

Our authority to review Board decisions is limited. “[W]e 

must affirm the Board’s decision unless we find it 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 following; or (3) unsupported by substantial evidence.” See, 

e.g., Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 

(Fed. Cir. 2008) (quoting 5 U.S.C. § 7703(c)). 

Mr. Baker’s appeal focuses only on whether the Navy 

had proved the charge of drug use.2 Appellant’s Br. 1 (“The 

name or [i]dentity [of the dietary supplements] was in the 

pictures I sent with my evidence I sent the judge for the 

2 Mr. Baker does not challenge the Board’s finding 

that there was “a nexus between the misconduct and the 

efficiency of service” or the Board’s finding that “the penalty of removal did not exceed the tolerable limits of reasonableness.” Board Decision at 7. Nor does Mr. Baker 

identify any flaw in the collection or testing procedure for 

the Navy’s drug test. 

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BAKER v. NAVY 5

court proceedings.”); id. (“I told the lab, doctor, and security 

from the start what I have been taking including the diet 

supplements, and that they could test them and I feel if 

they had a way to test them not knowing for sure why the 

positive outcome.”). Mr. Baker argues that if the Board 

properly considered the articles, at-home drug tests, and 

photographs he submitted, the Board would not have upheld his removal.

We agree with the government that substantial evidence supports the Board’s decision. Appellee’s Br. 10. The 

record demonstrates that the Board fully considered the 

Navy’s drug test, testimony of medical professionals, Mr. 

Baker’s testimony, and the evidence Mr. Baker submitted 

and reasonably found “[A]ppellant’s explanation for his 

reasonable suspicion positive drug test [to be] too vague 

and unspecific to be credible.” Board Decision at 6. Moreover, we determine that the Board did not err in relying on 

Dr. Fierro’s conclusions that neither prescription medications nor dietary supplements could cause the levels of amphetamine and methamphetamine documented in Mr. 

Baker’s test results. Id. at 3, 6. We considered Mr. Baker’s 

other arguments and do not find them persuasive. 

CONCLUSION

 For the foregoing reasons, we affirm the decision of the

Board. 

AFFIRMED

COSTS

No costs.

Case: 21-1898 Document: 18 Page: 5 Filed: 10/07/2021