NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

EDDIE L. BROWN, JR., 

Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

Respondent. 

__________________________ 

2011-3171 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. AT-0752100609-I-1. 

_________________________ 

Decided: January 13, 2012 

_________________________ 

EDDIE L. BROWN, JR., of Doraville, Georgia, pro se. 

MICHAEL N. O’CONNELL, Trial Attorney, Civil Division, United States Department of Justice, of Washington, 

DC, for respondent. With him on the brief were TONY 

WEST, Assistant Attorney General, JEANNE E. DAVIDSON, 

Director, and KIRK T. MANHARDT, Assistant Director. 

__________________________ 

Before PROST, O’MALLEY, and REYNA, Circuit Judges. 
BROWN v. JUSTICE 2

PER CURIAM. 

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. 

BACKGROUND

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 fiancé. 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 
3 BROWN v. JUSTICE

(“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 
BROWN v. JUSTICE 4

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). 

DISCUSSION

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). 
5 BROWN v. JUSTICE

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 Department’s program statement implementing the Drug Free 

Workplace program, as well as in the 1974 Privacy Act, 

indicating that records on positive drug tests may be 

disclosed to agency employees on a “need to know” basis. 

See Program Statement 3735.04, Section 17 (June 30, 

1997) at App. 41; 5 U.S.C. § 552a(b). 
BROWN v. JUSTICE 6

In this case, Mr. Brown argued that he tested positive 

for marijuana based on an unintentional, one-time occurrence about two weeks prior to the urinalysis test. Given 

that argument, Mr. Brown directly put at issue the question of how much marijuana he consumed, and how 

recently he consumed it. Indeed, the medical review 

officer in this case testified that the metabolite levels 

shown in Mr. Brown’s tests contradicted Mr. Brown’s 

version of the events. In this case, there can be no question that the agency had a “need to know” the numerical 

values shown in Mr. Brown’s test results, and consideration of that information was not error.1 

Second, Mr. Brown contends that the Director’s “Blue 

Letter” required his termination from the outset and, 

therefore, denied him due process because he did not have 

a fair opportunity to present his case. The administrative judge heard testimony that the Blue Letter in this 

case was “not a policy or a mandate of the agency,” but 

was “merely the Director’s thoughts on where the agency 

should be going on the issue.” Brown v. Dep’t of Justice, 

MSPB Docket No. AT-0752-10-0609-I-1, at 12 (Aug. 5, 

2010) (“Initial Decision”). In light of this, and based on 

the deciding official’s testimony, the administrative judge 

concluded that the deciding official did not rigidly apply a 

zero tolerance policy and instead “duly weighed the relevant factors in arriving at the penalty of removal.” Id. 

Likewise, the Board found that “appellant’s assertion that 

his removal was the predetermined result of the agency’s 

alleged Blue Letter imposed mandatory removal policy for 

 1 We do not suggest that a petitioner must always 

put the amount and frequency of his or her drug use at 

issue before an agency has a need to know the details of a 

drug test. We find only that, in this case, such a necessity 

clearly was present. 
7 BROWN v. JUSTICE

drug use to be both legally and factually meritless.” Final 

Order, at 2. 

We find no error in the Board’s conclusion that Mr. 

Brown’s argument on this point is without merit. The 

deciding official expressly considered the relevant factors, 

including Mr. Brown’s prior work record, receipt of 

awards, years of service, and lack of disciplinary record. 

He found, however, that “[t]hese facts . . . do not negate 

the egregiousness of your misconduct or shield you from 

it.” App. 25. Based on this record, we do not find error in 

the Board’s conclusion that the agency properly considered the relevant penalty determination factors. 

Finally, Mr. Brown argues that the deciding official 

improperly held Mr. Brown’s participation in drug counseling against him. Mr. Brown contends that this erroneous consideration “came to light during the Petitioner[’]s 

hearing” before the administrative judge, where, according to Mr. Brown, the official said that “he could not 

understand why a guilty person would go to counseling.” 

Pet’r’s Resp. to Notice of Overdue Informal Br. 2. In 

response, the government argues that Mr. Brown has 

waived this argument because he did not raise it before 

the Board, he has failed to provide transcript pages to 

support his characterization, and his argument is not 

supported by the removal decision or the initial decision. 

In his reply brief, Mr. Brown asserts that he did, in fact, 

raise this argument in his written submission to the 

administrative judge and again before the Board, but he 

does not provide any documents to support that assertion. 

Regardless of whether Mr. Brown has waived this argument, it is without merit. The agency’s removal decision does refer to Mr. Brown’s counseling, but not in a 

critical manner. See App. 24 (“I also considered that 

although you have received counseling through the Em-
BROWN v. JUSTICE 8

ployee’s Assistance Program (EAP) and have attended 

several counseling sessions, you did not voluntarily present yourself as an illegal drug user prior to being identified through the Agency’s Random Drug Testing.”). There 

is nothing from that decision to indicate that the deciding 

official held this against Mr. Brown or considered it an 

admission of guilt. Given that, and considering that 

independent bases justify the agency’s removal decision, 

we see no reason to set aside the Board’s decision in this 

case. 

CONCLUSION

For the reasons stated above, the decision of the 

Board is affirmed. 

AFFIRMED

COSTS

Each party shall bear its own costs.