Unpublished Disposition Notice: Federal Circuit Local Rule 47.8(B) States that Opinions and Orders Which Are Designated as Not Citable as Precedent Shall Not Be Employed or Cited as Precedent. this Does Not Preclude Assertion of Issues of Claim Preclusion, Issue Preclusion, Judicial Estoppel, Law of the Case or the Like Based on a Decision of the Court Rendered in a Nonprecedential Opinion or Order. Keith T. Johnson, Petitioner, v. Department of Justice, Respondent., 864 F.2d 149 (Fed. Cir. 1988)
Federal Circuits, Fed. Cir. (November 17, 1988)
Docket number: 88-3187
Permanent Link:
http://vlex.com/vid/citable-nonprecedential-keith-justice-37242126
Id. vLex: VLEX-37242126
Click here to download this article in graphic format (Acrobat Reader)
Document language
Search in this document
Document options
U.S. Court of Appeals for the 8th Cir. - Beulah Hunter, Jane Honorable and Sylvia Wiese, Appellants, v. Calvin Auger, Warden, Iowa State Men'S Reformatory, in His Official Capacity and Individually; David Scurr, Warden, Iowa State Penitentiary, in His Official Capacity and Individually; Jack Baughman, Former Warden, Iowa State Penitentiary, in His Official Capacity and Individually; Jane Doe, Guard At the Iowa State Penitentiary, in Her Official Capacity and Individually; Jane Roe, Guard At the Iowa State Penitentiary, in Her Official Capacity and Individually; and the State of Iowa, Appellees., 672 F.2d 668 (8th Cir. 1982) Jane Honorable and Sylvia Wiese, Appellants, v. Calvin Auger, Warden, Iowa State Men'S Reformatory, in His Official Capacity and Individually; David Scurr, Warden, Iowa State Penitentiary, in His Official Capacity and Individually; Jack Baughman, Former Warden, Iowa State Penitentiary, in His Official Capacity and Individually; Jane Doe, Guard At the Iowa State Penitentiary, in Her Official Capacity and Individually; Jane Roe, Guard At the Iowa State Penitentiary, in Her Official Capacity and Individually; and the State of Iowa, Appellees.
U.S. Court of Appeals for the 2nd Cir. - Security and Law Enforcement Employees, District Council 82, American Federation of State, County and Municipal Employees, Afl-Cio, By Its Treasurer William Clay, Richard Bischert, William Lothrop, Robert Morse, George Frees, Thomas F. Lynch, Richard J. Schrade, David L. Bowser, Charles E. Gordon, Jr., Melvin L. Bullock, Benjamin Whaley and Squire Simpson, Individually and on Behalf of all Others Similarly Situated, Plaintiffs-Appellants, v. Hugh Carey, as Governor of the State of New York, Thomas A. Coughlin, Iii, as Commissioner of the New York Department of Correctional Services, Walter Fogg, Individually and as Superintendent of Eastern Correctional Facility, Robert Kuhlmann, Individually and as Superintendent of Woodbourne Correctional Facility, Dominick Mantello, Individually and as Deputy Superintendent of Woodbourne Correctional Facility and Henry Deluca, Individually and as Deputy Superintendent for Security At Arthur Kill Correctional Facility, Defendants-Appellees., 737 F.2d 187 (2nd Cir. 1984) District Council 82, American Federation of State, County and Municipal Employees, Afl-Cio, By Its Treasurer William Clay, Richard Bischert, William Lothrop, Robert Morse, George Frees, Thomas F. Lynch, Richard J. Schrade, David L. Bowser, Charles E. Gordon, Jr., Melvin L. Bullock, Benjamin Whaley and Squire Simpson, Individually and on Behalf of all Others Similarly Situated, Plaintiffs-Appellants, v. Hugh Carey, as Governor of the State of New York, Thomas A. Coughlin, Iii, as Commissioner of the New York Department of Correctional Services, Walter Fogg, Individually and as Superintendent of Eastern Correctional Facility, Robert Kuhlmann, Individually and as Superintendent of Woodbourne Correctional Facility, Dominick Mantello, Individually and as Deputy Superintendent of Woodbourne Correctional Facility and Henry Deluca, Individually and as Deputy Superintendent for Security At Arthur Kill Correctional Facility, Defendants-Appellees.
Before ARCHER, Circuit Judge, COWEN, Senior Circuit Judge, and MAYER, Circuit Judge.
DECISIONPER CURIAM.Keith T. Johnson (Johnson) appeals the final decision of the Merit Systems Protection Board (MSPB), Docket No. DA07528610118REM, sustaining his removal by the Department of Justice's Federal Bureau of Prisons from his position as a Cook Foreman at the Federal Correctional Institution in El Reno, Oklahoma. We affirm.OPINIONThe MSPB sustained Mr. Johnson's removal for refusing to submit to a strip search by prison officials. He has not met his burden of showing the MSPB's decision to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. 5 U.S.C. Sec . 7703(c) (1982). See Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984).In his appeal to this Court, Mr. Johnson for the first time raises an issue which was not argued to the administrative judge. He contends that the search he refused to undergo would have involved searches of his body cavities, without a search warrant and in violation of his Fourth Amendment rights.The administrative judge found that the agency where Mr. Johnson was employed had received information from several independent sources implicating Mr. Johnson in the smuggling of drugs to inmates. In addition, the administrative judge found that the agency had received specific information from a reliable source that Mr. Johnson would be carrying drugs into the prison on the day the search was ordered. These findings, which are supported by substantial evidence, provide a reasonable basis for the prison officials' suspicion that Mr. Johnson would be carrying drugs into the prison on the day the search was ordered. It is well-settled that a reasonable suspicion by prison officials is sufficient to justify the ordering of a strip search without a search warrant. See Security and Law Enforcement Employees, District Counsel 82 v. Carey, 737 F.2d 187, 191 (2d Cir.1984); Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982).The record in the proceedings below shows that the agency, Mr. Johnson and the administrative judge referred to the search as a strip search. Mr. Johnson never challenged the validity of the search on the ground that it would have involved a search of his body cavities. At the beginning of his decision, the administrative judge stated that the sole basis for the adverse action was Mr. Johnson's refusal to submit to a strip search.Since he failed to raise the issue before the administrative judge, he is not entitled to be heard for the first time on that issue in this court. Meglio v. Merit Sys. Protection Bd., 758 F.2d 1576, 1577 (Fed.Cir.1984).Try vLex for FREE for 3 days
Access legal information from United States including:
- Constitutions
- Forms and Contracts
- Legal Books and Journals
- Case Law
- News and Business
- Regulations
- U.S. Code
Try vLex without any commitment for 3 days and see why you need it.
3
days of Free Access
