Garrison v. Department of Justice

Page 1566

72 F.3d 1566

11 IER Cases 575

Daryel GARRISON, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.

No. 95-3466.

United States Court of Appeals Federal Circuit.

Dec. 29, 1995.

Rehearing Denied; Suggestion for

Rehearing In Banc Declined

March 4, 1996.

Daryel Garrison, Kansas City, Kansas, submitted Pro Se Brian S. Smith, Trial Attorney, Commercial Litigation Branch, Department of Justice, Washington, D.C., submitted for respondent. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director and Richard E. Rice, Assistant Director.

FRIEDMAN, Senior Circuit Judge.

The petitioner, Daryel Garrison, challenges the decision of the Merit Systems Protection Board (Board) sustaining his removal by the Department of Justice due to his refusal to undergo a drug test. The principal issue is whether the Board correctly held that the agency official who ordered the testing had "reasonable suspicion" that the employee used drugs. We affirm.

I.

A. The Department of Justice removed Daryel Garrison from his position at the Federal Bureau of Prisons (Bureau) in Kansas City in March 1994 after he refused to undergo a urinalysis drug test. The Department required the test after the Office of Personnel Management (OPM) informed it that, in a routine background reinvestigation, Mr. Garrison's brother Clarence had told the investigator that he had seen Daryel use marijuana "several times in the past few years," and as recently as 1993; that Clarence had stated where the marijuana use occurred; and that Clarence had seen Daryel purchase the drug from "Marvin." Based on this information Patrick R. Kane, the local Regional Director of the Bureau, determined in writing that although the investigation had "not yet been finalized," there was "reasonable suspicion" that Daryel Garrison was using drugs. He directed Mr. Garrison to undergo a urinalysis test.

When Daryel Garrison refused to provide a urine sample, Bureau staff warned him that he "should be well aware that refusal can lead to disciplinary action up to and including dismissal." He still refused to comply. After meeting with him and his attorney and considering "all the mitigating and aggravating factors in the case," Mr. Kane removed him.

B. Daryel Garrison timely appealed his removal to the Board. After an evidentiary hearing, the Administrative Judge (AJ) reversed the removal. In his initial decision, the AJ held that under the standard the Ninth Circuit applied for employee drug-testing in American Federation of Government Employees v. Martin, 969 F.2d 788, 792-93 (9th Cir.1992), the information on which the Bureau relied was not sufficient to create a "reasonable suspicion," as opposed to a "hunch."

Citing evidence presented at the hearing that Clarence Garrison was mentally ill and suffered from delusions, the AJ found that he was not "a 'reliable and credible' source for the accusation as required by" the agency's drug-testing program. The AJ observed that although Kane was not aware of Clarence Garrison's mental problems at the time that he ordered the drug test, he "should have ensured that he had reliable and credible objective evidence, including dates and times of alleged off-duty drug use, and recognizable facts and circumstances which, to a trained supervisor, give rise to a 'reasonable suspicion' before ordering that a drug test be performed." According to the AJ, the failure to investigate further the allegations before ordering drug testing made the test "an unreasonable search under the Fourth Amendment," and therefore Mr. Garrison's removal for failure to submit to it was unconstitutional.

On the government's petition for review, the Board reversed the AJ and upheld the removal. Garrison v. Department of Justice, 67 M.S.P.R. 154, 156 (1995). Noting that "[r]easonable suspicion is a lesser standard than probable cause," which in itself "permits some degree of uncertainty," id. at 161, the Board concluded that "the administrative judge erred by evaluating the adequacy of the agency's reasonable suspicion determination based on facts that did not come to light until after the fact." Id. at 162. Reviewing the information available to Mr. Kane at the time he made the testing decision, the Board stated:

[T]he agency's information from the OPM investigator was specific and detailed. The derogatory information came from a close family member, the appellant's brother. As Kane testified, members of a family often tend to be protective of each other, and Clarence Garrison's close family relationship to the appellant tended to enhance his credibility and reliability in Kane's eyes. Although Kane did not conduct an investigation into Clarence Garrison's credibility or reliability, there was nothing in the information that he received from the OPM investigator that caused Kane to suspect that Clarence Garrison might not be a reliable and credible source.

Id. at 163 (citations omitted). The Board concluded that "the agency had a reasonable suspicion sufficient to warrant directing the appellant to take a drug test, and that its instruction that he submit to a drug test was permissible under its drug-testing program." Id.

II.

The Bureau's Drug Free Workplace Program Statement allows mandatory drug testing of an employee

if there is reasonable suspicion that the employee is under the influence of, or using drugs. Reasonable suspicion exists if the facts and circumstances known, warrant rational inferences that a person is using drugs.

The official ordering the testing is required to "detail, for the record and in writing, the circumstances which formed the basis of the determination that reasonable suspicion exists to warrant the testing. A written report will be prepared to include, at a minimum ... reliable/credible sources of information...."

A. Daryel Garrison does not challenge the Bureau's use of the "reasonable suspicion" standard for determining when to require drug-testing. At least one other circuit has upheld, against challenge under the Fourth Amendment, the use of that standard for government employee drug-testing. See American Fed'n of Gov't Employees v. Roberts, 9 F.3d 1464, 1468 (9th Cir.1993) (Bureau of Prisons); Martin, 969 F.2d 788 (Department of Labor). Indeed, the Supreme Court in another context has upheld the constitutionality of suspicionless urinalysis drug-testing for certain government employees. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).

Daryel Garrison's argument is that, as applied in this case, the "reasonable suspicion" standard subjected him to an unreasonable search and denied him due process. His principal contention is that the evidence supported the AJ's determination that Mr. Kane did not have reasonable suspicion that justified ordering a drug test; and that the Board improperly rejected the administrative judge's factual determinations.

This argument rests upon a misapprehension of the basis of the Board's decision. The Board reversed the AJ not because it disagreed with any of the AJ's factual determinations, but because it found that the AJ applied the wrong legal standard in evaluating Mr. Kane's "reasonable suspicion" determination, namely, "by evaluating the adequacy of the agency's reasonable suspicion determination based on facts that did not come to light until after the fact." Garrison, 67 M.S.P.R. at 162.

We agree with the Board that the determination whether Mr. Kane had "reasonable suspicion" that Daryel Garrison had used drugs was to be made on the basis of the factual information Mr. Kane had when he made the determination, and not on the basis of additional information that subsequently was disclosed or which he could have discovered by further inquiry. The Third Circuit recognized, in a case involving a reasonable suspicion urinalysis drug-testing of a public employee, that the issue is "whether the city had sufficient evidence at the time of the compelled urinalysis to support an objectively reasonable suspicion that [the police officer] used illegal drugs." Copeland v. Philadelphia Police Department, 840 F.2d 1139, 1144 (3rd Cir.1988), cert. denied, 490 U.S. 1004, 109 S.Ct. 1636, 104 L.Ed.2d 153 (1989). This principle is comparable to the well settled rule that whether there is probable cause for a search warrant depends upon the facts before the magistrate at the time of issuance, not upon subsequently disclosed information. See, e.g., Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 1511 n. 1, 12 L.Ed.2d 723 (1964), overruled on other grounds, Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Fooladi, 746 F.2d 1027, 1033 (5th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985); United States v. Sugar, 606 F.Supp. 1134, 1150 (S.D.N.Y.1985); United States v. Ward, 546 F.Supp. 300, 304 (W.D.Ark.1982), modified on other grounds, 703 F.2d 1058 (8th Cir.1983); see also Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987); Edwards v. Cabrera, 58 F.3d 290, 293 (7th Cir.1995).

The determination of reasonable suspicion, like that of probable cause, necessarily turns upon the information the person making the determination had when that person acted. The facts then before that person either were or were not sufficient to create a reasonable suspicion that a particular individual used drugs. If that information was sufficient, it is immaterial that other information that weakened or undercut that conclusion subsequently was disclosed or could have been discovered by further inquiry. Stated another way, the AJ's theory that by making further inquiry Mr. Kane could and should have discovered other facts that weakened the reliability of the information upon which he acted, is but another way of stating that the information Mr. Kane had was not sufficient to create a reasonable suspicion.

B. The...