Petition for review of the Merit Systems Protection Board in case no. AT-0752100609-I-1.
NOTE: This disposition is nonprecedential.
Before PROST, O'MALLEY, and REYNA, Circuit Judges.
Eddie L. Brown, Jr., pro se, appeals the decision of the Merit Systems Protection Board ("Board") affirming the Bureau of Prisons' ("agency" or "BOP") decision to remove him from his position as a correctional officer because he tested positive for marijuana use. Mr. Brown does not dispute the results or validity of his drug test; rather, he argues that the agency based its removal decision on improper considerations. Because we see no error in the Board's decision, we affirm.
Mr. Brown was employed as a correctional officer by the agency at the United States Penitentiary in Atlanta, Georgia. Pursuant to the BOP's Drug Free Workplace Program, Mr. Brown participated in a random urinalysis test conducted on December 10, 2009, which revealed positive results for marijuana. Five days after learning his test results, Mr. Brown submitted an affidavit explaining that his consumption of marijuana was unintentional. Specifically, he stated that, during his visit to his brother's house for Thanksgiving, he was around individuals who were smoking marijuana, and he also unknowingly consumed marijuana-laced cookies baked by his brother's fiance. Mr. Brown stated that, at the time, he did not know the cookies contained marijuana and only discovered that fact much later, when he discussed the results of his drug test with his brother.
On March 5, 2010, the agency issued its notice of proposed removal based on Mr. Brown's drug test results, to which Mr. Brown filed a written response. On April 9, 2010, the agency's deciding official issued a decision removing Mr. Brown from his position. The official found that Mr. Brown's explanation that he "unwillingly consumed a lot of the cookies" was not credible, see AppendiX ("App.") 24, and that his position as a law enforcement officer responsible for the custody of convicted drug offenders made the misconduct particularly egregious. Accordingly, the official determined that lesser sanctions, such as demotion, would be ineffective.
Mr. Brown appealed his removal to the Board, where an administrative judge held a hearing in which Mr. Brown and various other witnesses testified. Before the administrative judge, Mr. Brown reiterated his primary defense that his ingestion of the marijuana was unintentional. He also raised several procedural challenges, including that it was improper for the deciding official to have received information about the specific metabolite levels of marijuana in his system (which can show how recently and how much marijuana had been ingested), and that the agency did not consider the relevant penalty factors and instead applied a zero tolerance policy based on a "Blue Letter" issued by the Director of the Bureau of Prisons. The administrative judge rejected Mr. Brown's contentions, finding that: (1) the agency proved its charge of providing a specimen that tested positive for an illegal drug, a charge that does not require intent; (2) there was a nexus between the agency's action and the efficiency of the service; (3) the penalty of removal was reasonable, in part because he found Mr. Brown's testimony about his unknowing consumption of marijuana-laced cookies to be "less than credible" in light of many inconsistencies with other witnesses' versions of the events; (4) the agency gave bona fide consideration to the relevant penalty factors; and (5) the agency did not violate any procedures when it obtained the metabolite levels from Mr. Brown's drug tests. Accordingly, the initial decision affirmed the agency's action.
Mr. Brown timely petitioned the Board to review the administrative judge's initial decision. The Board denied the petition for review because it found that Mr. Brown had not presented any new evidence and that the administrative judge did not err in interpreting a law or regulation. See 5 C.F.R. § 1201.115. The Board also noted that Mr. Brown's argument that the Director's "Blue Letter" resulted in a zero tolerance removal policy was "both factually and legally meritless." The Board similarly found no merit in Mr. Brown's procedural challenges. Accordingly, the initial decision of the administrative judge became final, "[e]xcept as modified by th[e] [Board's] final order." Brown v. Dep't of Justice, MSPB Docket No. AT-0752-10-0609-I-1 (Final Order May 27, 2011) ("Final Order").
Mr. Brown timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
Our scope of review is limited by statute, and we may only set aside agency action, findings, or conclusions found 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 followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c). We accord significant deference to an agency's penalty determinations, and we will not overturn a penalty "unless the severity of the agency's action appears totally unwarranted in light of all the factors." Brown v. Dep't of Navy, 229 F.3d 1356, 1364 (Fed. Cir. 2000). In other words, we will defer to the agency's determination unless the penalty is "so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion." Allen v. U.S. Postal Serv., 466 F.3d 1065, 1071 (Fed. Cir. 2006) (citation omitted).
On appeal, Mr. Brown advances three arguments: (1) the agency violated his privacy rights, and other laws and procedures, by obtaining and relying on the specific metabolite levels of marijuana in his system shown in the urinalysis test results; (2) he was denied due process because the Director's "Blue Letter" instructed the deciding official to terminate Mr. Brown and effectively decided his case from the outset; and (3) the deciding official erred in considering Mr. Brown's required drug counseling as an admission of guilt. For the reasons explained below, none of these arguments warrants upsetting the agency's decision in this case.
First, Mr. Brown contends that the only information the agency should have received about his drug test was that it was positive for marijuana, and that the specific metabolite levels should have remained confidential under the 1974 Privacy Act, 5 U.S.C. § 552a, the Health Insurance Portability and Accountability Act ("HIPAA"), and policies of the Department of Health and Human Services. The administrative judge in this case found that, although the medical review officer who reviews the test results cannot disclose the numerical values of the metabolite levels initially, agencies are permitted to request and review that information for positive drug tests. Indeed, Jacqueline Justice, the agency's National Drug Free Workplace Coordinator, provided unrebutted testimony before the administrative judge that she makes such requests on all positive drug tests. The government also points to specific provisions in the Justice Depart-ment's program statement implementing the Drug Free ...