Daryel Garrison v. Department of Justice , 72 F.3d 1566 ( 1996 )

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 ease,” 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 “[rjeasonable 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. 666, 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 ease 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 question, therefore, is whether Mr. Kane had reasonable suspicion that Dar-yel Garrison had used drugs when he ordered Garrison to undergo a urinalysis drug test.

Because “[u]rine tests are searches,” Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390, an employer’s “drug-testing program must meet the reasonableness requirement of the Fourth Amendment.” Id. What is reasonable, however, depends upon all the facts and circumstances of the particular situation. “Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990).

When Mr. Kane made his reasonable suspicion determination, he had the following information before him: Daryel Garrison’s brother Clarence had stated that he had seen Daryel use marijuana “several times in the last few years” and most recently less than a year before, and that Clarence had seen Dar-yel purchase the drug from someone named “Marvin.” Clarence also had stated where Daryel’s drug use had occurred. The source of the information was not an unnamed informant, but Daryel’s brother, who provided detailed, specific, information about the frequency and location of his brother’s drug use and a purchase transaction, all of which allegedly took place in his presence.

We agree with the Board that this information was sufficient to create a reasonable suspicion in Kane’s mind that Daryel had used marijuana. There was nothing about this information that should have led Kane, before acting upon it, to question its authenticity or reliability or to corroborate it.

Mr. Kane reasonably could have assumed that Mr. Garrison’s brother was familiar with Daryel’s behavior, and Kane had no reason even to suspect that Clarence might have fabricated the story as a result of his mental illness. “[TJhere is nothing about a sibling relationship,” United States v. Johnson, 925 F.2d 1115, 1117 (8th Cir.1991), that would make suspect the information about his brother that Clarence had provided. Id. To the contrary, the relationship enhanced the credibility of Clarence’s statements. See United States v. Dien, 609 F.2d 1038, 1043 (2d Cir.1979), adhered to on reh’g, 615 F.2d 10 (2d Cir.1980); United States v. Sultan, 463 F.2d 1066, 1068-69 (2d Cir.1972). Moreover, Clarence’s statements described events that Clarence himself had seen.

Other courts have upheld reasonable suspicion determinations in drug-testing cases where the person providing the information had a close personal relationship with the subject or reported personal observation. In Copeland, 840 F.2d 1139, the court upheld drug-testing based on the allegations of a police officer’s ex-girlfriend (herself a police officer), made after a “heated altercation” with him, that he had used illegal drugs in her presence. Id. at 1142^44. The court held that the “evidence was sufficient to support a finding of reasonable suspicion.” Id. at 1144. See also Everett v. Napper, 833 F.2d 1507, 1508-11 (11th Cir.1987) (upholding the finding of reasonable suspicion based on drug dealer’s identification of plaintiff as one of his customers); Armington v. School Dist. of Philadelphia, 767 F.Supp. 661, 663, 667 (E.D.Pa.) (finding reasonable suspicion based on telephone complaint of woman identifying herself as a parent, who reported that school bus driver “was late and could not stand up, and that she smelled marijuana in the bus”), aff'd, 941 F.2d 1200 (3rd Cir.1991); Wrightsell v. City of Chicago, 678 F.Supp. 727, 729, 732-33 (N.D.Ill.1988) (finding reasonable suspicion based on statements by employee’s former girlfriend who sought to “get even”); Allen v. Marietta Bd. of Lights and Water, Inc., 693 F.Supp. 1122, 1126-27 (N.D.Ga.1987) (finding reasonable suspicion based on reports of informant planted in the work force). The information upon which Mr. Kane here based his determination of reasonable suspicion was no less credible and substantial than the information in those cases.

Indeed, even in probable cause cases, where stronger evidence may be necessary, “[t]he Court has never suggested that the police, with [eyewitness] information in hand, must conduct a further investigation.” Gramenos v. Jewel Cos., Inc., 797 F.2d 432, 439 (7th Cir.1986), cert. denied, 481 U.S. 1028, 107 S.Ct. 1952, 95 L.Ed.2d 525 (1987). Several courts have held that the uncorroborated statements of eyewitnesses with no motive to falsify are enough to support a finding of probable cause. See id.; United States v. Rollins, 522 F.2d 160, 164 (2d Cir.1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d 324 (1976). The drug-testing cases Daryel cites nowhere suggest that for its suspicion to be reasonable, an agency must make an affirmative investigation of its source’s credibility. Martin, 969 F.2d 788; Copeland, 840 F.2d 1139.

The Bureau’s Drug Free Workplace Program Statement requires the person ordering drug testing to complete a report including “reliable/credible sources of information.” Martin, upon which the AJ and the Board relied, upheld the constitutionality of the drug-testing program in part because it required “objective evidence,” which “must consist of credible eyewitness observations of illegal drug use or impairment” and documentation of “dates and times of off-duty drug use or impairment as reported by reliable and credible sources.” Martin, 969 F.2d at 793. Neither the Statement nor Martin, however, indicates that the informant’s reliability must be based on the additional background check that Daryel Garrison argues should have been made here.

In probable cause cases, courts have upheld police searches based on information from informants that were no more, and sometimes less, well-credentialed than Mr. Garrison’s brother, where the information was sufficiently detailed and specific. In Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984), the Supreme Court upheld a finding of probable cause based on a police affidavit containing primarily a description of the uncorroborated statements of a woman who identified herself over the telephone as the defendant’s ex-girlfriend and who had a motive to provide false information because she said she “wanted to burn” the defendant. Id. at 729-35, 104 S.Ct. at 2086-89; see also United States v. Dawkins, 17 F.3d 399, 404 (D.C.Cir.1994) (woman identifying herself over the telephone as the defendant’s girlfriend); United States v. Kovac, 795 F.2d 1509, 1512-13 (9th Cir.1986) (defendant’s sister-in-law); cert. denied; 479 U.S. 1065, 107 S.Ct. 951, 93 L.Ed.2d 1000 (1987); United States v. Elliott, 893 F.2d 220, 223-25 (9th Cir.) (woman who said she lived with defendant and who had a motive to testify against him), modified on other grounds, 904 F.2d 25 (9th Cir.), cert. denied, 498 U.S. 904, 111 S.Ct. 268, 112 L.Ed.2d 224 (1990); United States v. Phillips, 727 F.2d 392, 399 (5th Cir.1984) (defendant’s estranged wife who may have had motives of vengeance).

C.l. The dissent argues that once Clarence Garrison’s reliability as a source of information about Daryel Garrison’s conduct had been seriously challenged, the basis for the agency’s “reasonable suspicion” determination was undermined, and the agency “was required to obtain independent corroboration before testing could be required.” As we have explained, however, at the time that Kane made his “reasonable suspicion” determination and directed Daryel Garrison to take the drug test, Kane had no information or reason to believe that Clarence Garrison was not a reliable and trustworthy source of information. The first time that Kane was informed of Clarence Garrison’s mental illness was at the oral reply to the notice of proposed removal that Daryel Garrison and his lawyer made to Kane several weeks after Daryel Garrison had refused to provide a urine sample. In effect, the dissent reiterates the conclusion of the Administrative Judge, which the Board and this court reject. As we hold, the validity of the “reasonable suspicion” determination must be based upon the information on which the determination was made, and not upon what additional information subsequently developed.

Perhaps the dissent is suggesting that even if the reasonable suspicion determination originally was valid, the agency should not have removed Daryel Garrison without further investigation once the agency became aware of the derogatory information about Clarence Garrison. If, however, as we hold, the agency had a proper basis for ordering the drug test, then Daryel Garrison’s refusal to undergo the test was insubordination that fully justified the removal. Although the dissent states that “[w]hen the drug test order was shown to be unwarranted, it was improper for the Bureau to fire Mr. Garrison for insisting on his employee and Fourth Amendment rights,” the premise for that argument fails because of our holding that the drug test order was valid when given.

2. The dissent also contends that the written memorandum Kane prepared memorializing his reasonable suspicion determination did not comply with the requirement in the Bureau’s Drug Free Workplace Program Statement that “[w]here testing is conducted based on reasonable suspicion,” a “written report” “for the record” shall be prepared, which should “include, at a minimum, the appropriate dates and times of reported drug related incidents, reliable/credible sources of information, rationale leading to the test, findings of the test, and the action taken.” This requirement, however, deals with the situation where “testing is conducted based on reasonable suspicion” and is designed to provide a report of the testing “for the record.” Here, no “testing was conducted” because the employee refused to comply with the order to undergo it. Moreover, the requirement of preparing a “written report” does not appear to give the employee ordered to undergo the test any right to challenge the sufficiency of the report. To the contrary, this requirement is a procedural housekeeping rule which “only prescribed internal agency procedures_for the agency’s own use,” Kinzley v. United States, 661 F.2d 187, 192, 228 Ct.Cl. 620 (1981), was “adopted for the orderly transaction of [agency] business,” and which the agency may “relax or modify” in a particular case. American Farm Lines v. Black Ball Freight Serv, 397 U.S. 532, 539, 90 S.Ct. 1288, 1292-93, 25 L.Ed.2d 547 (1970) quoting NLRB v. Monsanto Chem. Co., 205 F.2d 763, 764 (8th Cir.1953). In any event, the written statement that Kane prepared did not violate the requirements of the Bureau’s Drug Free Workplace Program Statement.

III.

Daryel Garrison’s other contentions need not detain us long.

He contends that the Bureau’s failure to follow the procedures required for dealing with derogatory information discovered in a background investigation before taking adverse action against an employee based on such information, denied him due process and tainted the reasonable suspicion determination. (Those procedures included interrogation of witnesses and an opportunity for a suspect to answer the derogatory allegations.) Daryel Garrison was removed, however, not because of the derogatory information developed in the OPM background reinvestigation, but because he refused to undergo a drug test. As we have held, Mr. Kane had reasonable suspicion that justified the test.

Daryel Garrison also contends that the Board erred in granting the government’s petition for review of the AJ’s decision and in denying his petition. The decision whether to review an administrative judge’s initial decision, however, is within the Board’s discretion. See 5 C.F.R. § 1201.115(d) (1995). Daryel Garrison has not shown that the Board abused its discretion in granting the government’s petition and denying his.

His other arguments do not merit discussion.

CONCLUSION

The decision of the Merit Systems Protection Board sustaining Daryel Garrison’s removal is

AFFIRMED.