                     NOTE: This disposition is nonprecedential.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                    NOTE: This disposition is nonprecedential.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
      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.




2008-3007                               4
