dissenting.
Fourth Amendment issues concerning drug testing programs have been much litigated, including “reasonable suspicion” drug testing, the issue in this case. The Department of Justice, Bureau of Prisons program governing drug testing of its employees reflects hard-won safeguards of constitutional rights, while pragmatically policing the drug-free workplace. However, the Bureau’s program requirements for reasonable suspicion drug testing were not met for Mr. Garrison, for it is not now disputed that the source of the “derogatory” information was not reliable and that the judicially-imposed, Constitution-based requirement of corroboration in such circumstance was not met.
Mr. Garrison fell squarely within the area targeted for constitutional protection. An accusation by a deranged, in this case schizophrenic source, even if perceived as rehable at first blush, required corroboration when the source’s reliability was effectively challenged. The agency’s failure to comply with either the reliability or the corroboration requirement was not legitimized simply because the agency was not aware of the source’s unreliability at the moment the drug test was ordered. Such circumstance did not ratify the agency’s breach, or insulate the ordered test from determination of its legitimacy after the brother’s dementia became known.
The panel majority holds that since Mr. Garrison’s brother was facially a credible informer, Mr.- Garrison was properly fired for relying on the protection of the agency’s program. I must dissent from the court’s ruling, for Mr. Garrison successfully challenged the reasonableness of the suspicion, and the agency failed to comply with the Constitution-based program requirements. Because the drug testing order was shown to be improper, the order violated Mr. Garrison’s Fourth Amendment and employee rights. Thus his refusal to take the test can not be used as the basis for firing him. See Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989); Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
The Constitution-based protections of the Bureau of Prisons program require preservation, not attrition, by this court.
A
By executive order of September 15, 1986 the President directed each agency in the Executive Branch to establish a program to test employees in sensitive positions for the use of illegal drugs. Exec. Order No. 12564, 3 C.F.R. § 224 (1987), reprinted in 5 U.S.C. § 7301 note at 909-11 (1988). The Bureau of Prisons instituted such a program, and the American Federation of Government Employees, Council 33 initiated litigation in federal district court alleging that aspects of the Bureau’s random testing, accident and unsafe practice testing, and reasonable suspicion testing requirements were unconstitutional. Concurrently, challenges to drug testing programs of other agencies were proceeding through the courts.
In 1989 the Supreme Court held that urinalysis is a search that is constitutionally prohibited unless it is based on reasonable grounds. Railway Labor Executives, 489 U.S. at 617, 109 S.Ct. at 1413 (“Because it is *1573clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment.”) (footnote omitted). To determine the criteria to be applied, the employee’s privacy interests are balanced against the government’s interests in light of the agency’s particular needs and sensitivities. 489 U.S. at 619, 109 S.Ct. at 1414; see National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 1390, 103 L.Ed.2d 685 (1989) (In “view of our holding in Railway Labor Executives that urine tests are searches, it follows that the Customs Service’s drug-testing program must meet the reasonableness requirement of the Fourth Amendment.”) Thus when the AFGE, Council 33 suit against the Bureau of Prisons reached the Ninth Circuit, the court endorsed certain criteria for reasonable suspicion testing that it had “approved as constitutional,” including:
4. Information provided either by reliable and credible sources or independently corroborated.
American Fed’n of Gov’t Employees, AFL-CIO v. Roberts, 9 F.3d 1464, 1468 (9th Cir.1993) (citing American Fed’n of Gov’t Employees, Local 2391 v. Martin, 969 F.2d 788, 790 n. 1 (9th Cir.1992)).
The Department of Justice does not dispute that this criterion applies to the Bureau’s determination of reasonable suspicion, but simply argues that it was met in Mr. Garrison’s case. However, the Bureau did not corroborate the information obtained from Clarence Garrison (the brother), even after it had sound reason to believe that he was not a reliable and credible source.
The Bureau also violated its program requirement for documenting the reasons for the reasonable suspicion test. See Bureau of Prisons Drug Free Workplace Program Statement, P.S. 3735.02:
Where testing is conducted based on reasonable suspicion, the appropriate management official (Warden, Regional Director, Assistant Director) will promptly detail, for the record and in writing, the determination that reasonable suspicion exists to warrant the testing. A written report will be prepared to 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.
Contrary to this requirement, the memorandum by Regional Director Patrick Kane does not state “dates and times” or “incidents,” and does not mention the “source” or its “reliability/credibility.”
The panel majority holds that the agency was not required to comply with this requirement of a written report that showed, inter alia, “reliable/credible sources of information,” because “no testing was conducted” before the employee was fired. However, the purpose of the report is to assure compliance by the agency with the drug testing program. Thus the directive setting out the contents of the report reiterates the employee safeguards that must be met. The memorandum in the record shows that the agency failed to provide these safeguards. American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539, 90 S.Ct. 1288, 1292-93, 25 L.Ed.2d 547 (1970) is cited by the majority for the proposition that the reporting requirement does not give the employee the right to challenge the sufficiency of the report. However, the report of Mr. Garrison’s ordered test makes clear, as its author agreed, that the program requirements were not complied with. American Farm does not hold that an agency’s failure to comply with its Constitution-based rules can be excused as a matter of “housekeeping.” It is not “housekeeping” to require documentation to assure that judicially-mandated and agency-directed constitutional rights are respected. “Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.” Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270 (1974); Boddie v. Department of Navy, 827 F.2d 1578, 1580 (Fed.Cir.1987); Yuni v. Merit Sys. Protection Bd., 784 F.2d 381, 386 (Fed.Cir.1986).
Mr. Kane and others in authority refused to answer Mr. Garrison’s question of the *1574basis for ordering the reasonable suspicion test. Nor did the notice of proposed removal, issued two days after the test was ordered, contain the requested information. It took several further requests by Mr. Garrison before he was told the source of the information on which the order was based. Thus he was unable to point out, until well after issuance of the notice of proposed removal, the uncontroverted fact of his brother’s dementia. The removal was completed without further inquiry and without corroboration. Mr. Garrison appealed to the MSPB.
Mr. Kane admitted, at the hearing before the Board, that the investigation was “incomplete.” Indeed, the record suggests that even a superficial inquiry at the time the test was ordered would have raised doubts about the reliability of the source, for the interviewer testified before the Board that the interview was “difficult and exhausting,” and that the brother had “an attitude.” The record of the interview itself stated that Clarence is “disabled.” However, with no other adverse information the agency immediately removed Mr. Garrison from employment. He had sixteen years of successful service with no prior disciplinary record, had received several letters of commendation and service awards, and had been given and passed two random drug tests during the time-period that was called into question by the brother. The agency’s program requirements that had been established for nonrandom testing were, simply, ignored.
B
The panel majority holds that since the derogatory information appeared to be from a reliable source when it was received, that sufficed to meet the “reasonable suspicion” criterion and it is not relevant whether the source was actually reliable. Thus the majority holds that it was not necessary for the Bureau to consider the information presented by Mr. Garrison about his brother’s dementia. I repeat that the agency neither investigated further nor sought corroboration of the brother’s statements. The agency’s inaction even after Mr. Garrison explained his brother’s dementia not only violates the Bureau’s program requirements, but defies the constitutional principles they protect. When the existence of reasonable suspicion has been reasonably challenged, it is highly relevant that the only source of derogatory information was shown to be unreliable. The case authority on which the majority relies does not support its position that reasonable suspicion can be sustained after the reliability of the source has been impugned.
I start with the “probable cause” cases that the majority cites for the proposition that whether there is probable cause (for a search warrant) depends upon the facts before the issuer at the time of issuance, not upon subsequently disclosed information. These cases do not sustain probable cause when the only information upon which the warrant was based is later shown to be unreliable. As discussed in United States v. Sugar, 606 F.Supp. 1134, 1160 (S.D.N.Y.1985) “an after-the-fact discovery that some portion of the informant’s statement is inaccurate does not negate the finding of probable cause viewing the totality of the circumstances.” However, there must remain sufficient accurate information to support a finding of probable cause. Id. In Mr. Garrison’s ease, there was no remaining information.
Mr. Garrison’s ease is more like that of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), wherein the Court ruled that a criminal defendant may challenge the veracity of a search warrant affidavit; if the remaining untainted information is insufficient to establish probable cause, “the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” 438 U.S. at 156, 98 S.Ct. at 2676. See also, e.g., Wong Sun v. United States, 371 U.S. 471, 477-78, 83 S.Ct. 407, 411-12, 9 L.Ed.2d 441 (1963) (indirect evidence obtained as a result of an unconstitutional search must be excluded as the “fruit of the poisonous tree”); Silverthorne Lumber Co, Inc. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 188, 64 L.Ed. 319 (1920) (“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be *1575used before the Court but that it shall not be used at all.”)
Violations of the Fourth Amendment prohibition against unreasonable searches and seizures “have traditionally mandated a broad application of the ‘fruits’ doctrine,” for the purpose of the exclusionary rule is to deter unreasonable searches and seizures. Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 1291-92, 84 L.Ed.2d 222 (1985). The extensive litigation of federal drug testing programs, the Court’s ruling that drug testing programs must meet the reasonableness requirement of the Fourth Amendment, and the Ninth Circuit’s ruling involving the Bureau of Prisons that there must be either a rehable and credible source or independent corroboration in order to support reasonable suspicion drag testing, establish the illegality of the procedures that the Bureau followed with respect to Mr. Garrison.
C
At the Board’s hearing Regional Director Patrick Kane testified that “I had no background information on Clarence Garrison whatsoever,” and that he “did nothing to initiate a review of this man’s personal background.” Mr. Kane admitted that the only information he had at the time he ordered the drug test was a verbal report of Clarence Garrison’s statement, which reached Mr. Kane through several intermediaries, from investigator Angela Kidd to Allen Kelly to Sandra Otting to Ray Marshall to Patrick Kane. Mr. Kane had no information about the reliability and credibility of Clarence Garrison and, as I have already observed, there was no written report detailing the “reliable/credible sources of information” required by Program Statement 3735.02.
The administrative judge held that the Bureau’s program requirements were not met and that the reasonable suspicion drag test was improperly ordered. The Board reversed, holding, as does the panel majority, that the agency was justified in its reasonable suspicion at the time it ordered the test, since a brother is facially a reliable source. However, the Ninth Circuit ruled in the Bureau of Prisons litigation that a reasonable suspicion drag test must be based on “Information provided either by reliable and credible sources or independently corroborated.” AFGE v. Roberts, 9 F.3d at 1468. That ruling, and related precedent, require independent corroboration when the source is shown not to be reliable and credible. When the source is impeached, the “poisoned fruit” can not be used to lead to adverse governmental action.
The panel majority cites various cases in which reasonable suspicion for drag testing was found to exist. However, in none of those cases was the source shown to be unreliable. For example, in the case in which the informer was an ex-girlfriend of the subject, she was also a police officer and well known to the official who ordered the test. Copeland v. Philadelphia Police Dept., 840 F.2d 1139, 1144 (3d Cir.1988), cert. denied, 490 U.S. 1004, 109 S.Ct. 1636, 104 L.Ed.2d 153 (1989) (“the urinalysis was ordered on the basis of the first-hand observations of a police officer”). In the case in which a mother reported suspected drag use by her child’s school bus driver, the court found that the bus driver “has not shown or given any reason for defendant to doubt the reliability of the parent.” Armington v. School Dist. of Philadelphia, 767 F.Supp. 661, 667 (E.D.Pa.), aff'd, 941 F.2d 1200 (3d Cir.1991) (Table). In the case of the drag dealer reporting on the drag use of one of his customers, both persons were firefighters suspected of drug use. Everett v. Napper, 833 F.2d 1507, 1508, 1511 (11th Cir.1987) (after police surveillance showed that drag sales were taking place, “Hodges, a fellow firefighter and confirmed drag dealer, named Everett as one of the drag buyers”). In Allen v. Marietta Board of Lights and Water, Inc., 693 F.Supp. 1122 (N.D.Ga.1987) the employer ordered drug testing after an investigation involving the “‘planting’ of an informant among the suspected employees,” id. at 1126; the credibility of the informant was not challenged. In Wrightsell v. City of Chicago, 678 F.Supp. 727 (N.D.Ill.1988) the court held that reasonable suspicion did not continue to exist if a former girlfriend’s statements could not be corroborated; the court stated that: “At the point Moore was ordered to submit to urinalysis, it cannot be *1576said that, as a matter of law, reasonable suspicion of drug use existed.” 678 F.Supp. at 732-33. In subsequent litigation, when the subject did not contradict the employer’s evidence, the court held that there was reasonable suspicion.. Wrightsell v. City of Chicago, No. 87 C 3532, 1989 WL 106608 at *1, *2, 1989 U.S.Dist. LEXIS at *2, *4 (N.D.Ill. Sept. 7, 1989). These cases are not comparable on their facts, for none of the cited cases appears to relate to a program that explicitly requires either reliability and credibility of the source, or independent corroboration. Further, in all of these cases the source was either unchallenged or shown to be rehable.
The government has never disputed that Clarence Garrison was suffering from schizophrenia, and has never argued that he was in fact a reliable or credible source. However, the panel majority holds that independent corroboration was unnecessary after the source was shown to be unreliable, and that it suffices if the suspicion appeared to be reasonable at the time it arose. This procedure does not meet the requirements of the agency’s directives and the Constitution-based judicial rulings.
This is not an instance of a tardy, litigation-inspired challenge to an informant long after the fact. Mr. Garrison asked, indeed demanded, the source of the information at the time the drug test was ordered. This was the context in which he refused to take the test. He continued to request this information, and it continued to be withheld. It was withheld at the time Mr. Kane issued the notice of proposed, removal, and for two weeks thereafter.1
In Mr. Garrison’s case the brother’s reliability and credibility was controverted, the brother’s information was not independently corroborated, and there was no other derogatory information. Whether or not the brother’s dementia was apparent to the OPM interviewer, as soon as the facts concerning the brother’s mental illness became known, the agency was required to obtain independent corroboration before testing could be required, and surely before punishment could be inflicted for relying on the constitutional rights embodied in the agency’s program.
D
The agency also argues that Mr. Garrison’s obligation was to comply with the order, even if he thought it was illegal, and then file a grievance. The cases that support the so-called “obey now, grieve later” rule do not ratify incursion upon fundamental rights. See, e.g., Bigelow v. Department of Health & Human Servs., 750 F.2d 962, 965 (Fed.Cir.1984) (government employee should not refuse to undergo training to enable him to do his work properly); Nagel v. Department of Health & Human Servs., 707 F.2d 1384, 1387 (Fed.Cir.1983) (government employee may not refuse to perform assigned duties because of a disagreement with management). Such a rule has a place in routine management processes, but it is not authority for violations that are of constitutional dimension.
The courts have not enforced an “obey now, grieve later” rule when the employer’s order is illegal. The Supreme Court has held that a police officer can not be discharged “for refusing to waive a right which the Constitution guarantees to him.” Gardner v. Broderick, 392 U.S. 273, 277, 88 S.Ct. 1913, 1915, 20 L.Ed.2d 1082 (1968) (police officer improperly dismissed for failure to relinquish the protection of the privilege against self-incrimination); see Garcia v. National Labor Relations Bd., 785 F.2d 807, 812 (9th Cir.1986) (“Apparently the Board believes that an employee given an unlawful order is ... obliged to ‘obey and grieve.’ We prefer the alternative view that a citizen’s first obligation is to obey the law, not the unlawful commands of an employer.”); Fleckenstein v. Department of the Army, 63 M.S.P.R. 470, 473-74 n. 3 (1994) (“To the extent Gragg [v. United States Air Force, 13 *1577M.S.P.R. 296 (1982) ] can be interpreted as indicating that an employee can be disciplined for a refusal to obey an order that the agency is not entitled to have obeyed, we hereby overrule that decision.”)
Conclusion
Violation of employee rights is not legitimated simply because the violation was not recognized at the time it occurred. When 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, under the Bureau’s procedures and in accordance with judicial mandate, not to be tested unless the criteria of reasonable suspicion were met.
History shows the need, in a free society, for requiring either a credible and rehable source, or independent corroboration, before governmental action is taken based on derogatory information. Denunciation of a neighbor, relative, or stranger is characteristic of totalitarianism; it is encouraged as a political tool, for its subjugative effect. Similarly, the invasion of citizens’ privacy by unwarranted searches penetrates to the core of personal liberty. Thus after a good deal of judicial attention, in the inflamed atmosphere of the nation’s serious drug problems, the Department of Justice, Bureau of Prisons program met the constitutional safeguards, yet facilitated reasonable workplace drug testing. In failing either to ensure that it had rehable and credible information, or to corroborate the information after learning of the unreliability of the source, the Bureau of Prisons violated not only its own requirements, but also the constitutional rights protected by those requirements. This court has today ratified this action. Thus I must, respectfully, dissent.
. The majority opinion suggests that Mr. Garrison tardily produced the information of his brother's illness at "the oral reply to the notice of proposed removal ... several weeks after Daryel Garrison had refused to provide a urine sample.” That is an unfair characterization of the fact that the agency withheld the identity of the source until well after the notice of proposed removal was issued. The record before us does not state when Mr. Garrison first informed the agency of his brother's mental illness, but Mr. Kane's testimony does not suggest that it was delayed.