       NOTE: This disposition is nonprecedential.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 Divi-
sion, 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 ex-
plaining that his consumption of marijuana was uninten-
tional. Specifically, he stated that, during his visit to his
brother’s house for Thanksgiving, he was around indi-
viduals who were smoking marijuana, and he also un-
knowingly 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 pro-
posed 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 con-
sumed 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 of-
fenders 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 uninten-
tional. 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 admin-
istrative judge did not err in interpreting a law or regula-
tion. 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 ju-
risdiction 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 discre-
tion, 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 decid-
ing 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
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 occur-
rence about two weeks prior to the urinalysis test. Given
that argument, Mr. Brown directly put at issue the ques-
tion 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 ques-
tion that the agency had a “need to know” the numerical
values shown in Mr. Brown’s test results, and considera-
tion 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 administra-
tive 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 rele-
vant 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 consid-
ered the relevant penalty determination factors.
    Finally, Mr. Brown argues that the deciding official
improperly held Mr. Brown’s participation in drug coun-
seling against him. Mr. Brown contends that this errone-
ous consideration “came to light during the Petitioner[’]s
hearing” before the administrative judge, where, accord-
ing 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 ar-
gument, it is without merit. The agency’s removal deci-
sion 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 pre-
sent yourself as an illegal drug user prior to being identi-
fied 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.
