Hansen v. Dep't of Homeland Sec.

• Decision Date: 28 December 2018
• Docket Number: 2017-2584
• Parties: Jeffrey A. HANSEN, Petitioner v. DEPARTMENT OF HOMELAND SECURITY, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

911 F.3d 1362

Jeffrey A. HANSEN, Petitioner

v.DEPARTMENT OF HOMELAND SECURITY, Respondent

2017-2584

United States Court of Appeals, Federal Circuit.

Decided: December 28, 2018

Michael J. Kator, Kator, Parks, Weiser & Harris P.L.L.C., Washington, DC, argued for petitioner. Also represented by Daniel R. Clark ; Jeremy D. Wright, Austin, TX.

Douglas G. Edelschick, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Lisa L. Donahue, Robert E. Kirschman, Jr., Joseph H. Hunt; Mili R. Smith, Office of the Associate Chief Counsel, United States Customs and Border Protection, Chicago, IL.

Debra A. D'Agostino, The Federal Practice Group Worldwide Service, Washington, DC, for amicus curiae Metropolitan Washington Employment Lawyers Association.

Before O'Malley, Chen, and Stoll, Circuit Judges.

Stoll, Circuit Judge.

Following a positive drug test, the Department of Homeland Security removed Jeffrey Hansen from his position as an Information Technology Specialist for U.S. Customs and Border Protection. The Merit Systems Protection Board affirmed the agency's decision. Mr. Hansen now appeals, arguing that the Board improperly assigned him the burden of proving that he inadvertently ingested marijuana, that it erred in finding his position was subject to random drug testing, and that even if it was subject to such testing, he lacked required notice of that fact.

We hold that intent is not an element of the charged conduct and that the Board properly required Mr. Hansen to introduce rebuttal evidence to counter the government's showing of nexus and choice of penalty. We also determine that substantial evidence supports the Board's finding that Mr. Hansen's position was designated for random drug testing. Because Mr. Hansen's remaining arguments are either unpersuasive or waived, we affirm the Board.

BACKGROUND

Mr. Hansen's supervisor directed him to report for a random drug test. He did so, but failed, testing positive for marijuana. J.A. 99. Mr. Hansen never contested the accuracy of the test result, J.A. 103, but he contended that he had not knowingly used marijuana, averring that he had "never used any illegal substance and was shocked when [he] got this call," J.A. 102.

After failing the drug test, Mr. Hansen submitted a letter to the agency. In it, he posited that he had inadvertently consumed drug-laced brownies at a barbeque a few days before his failed test. J.A. 100. Mr. Hansen claimed that a friend-of-a-friend's neighbor, a stranger to him, had hosted the barbeque. Upon failing the drug test, Mr. Hansen explained, he informed his friends that he had "tested positive and would probably lose [his] job," and he then learned that some unknown person "at the [barbeque] thought it would be funny to bring [marijuana-laced] brownies." Id.

Shortly after Mr. Hansen submitted his letter, the agency issued a Notice of Proposed Removal, explaining that "[t]he use of an illegal drug, such as marijuana, stands in direct conflict with the principles of law enforcement, the mission of the Agency, and the public's trust." J.A. 25. Mr. Hansen then submitted a second letter of explanation, maintaining that he had inadvertently consumed marijuana in brownies at the barbeque. He provided an affidavit from the lifelong friend who had invited him, who stated that although "an attendee did indeed bring ‘pot brownies,’ " "neither I nor my friends that invited us knew." J.A. 107. Neither Mr. Hansen nor his friend identified the person who had provided the brownies or who had the hosted the barbeque.

The deciding official gave Mr. Hansen's explanation and evidence "significant consideration" but found it unconvincing. J.A. 19–20. She noted that the only evidence that marijuana-laced brownies were even available at the barbeque came from Mr. Hansen's friend—whose only knowledge derived from a phone call with the unnamed host. She emphasized that Mr. Hansen did not provide "any evidence from either the person who purportedly brought the brownies, or from the host" or even "a statement from anyone else who either knew that the brownies contained marijuana or who did not know, but felt the effect of the drug." J.A. 20. And she questioned how, although Mr. Hansen stated that he did not drink alcohol and preferred to avoid even prescribed medications, he "experienced no behavioral or physiological effects of the drug." Id. The deciding official thus sustained a charge of "positive test for illegal drug use—marijuana," and removed Mr. Hansen from his position. Mr. Hansen then appealed to the Board.

Before the Board, Mr. Hansen submitted additional details regarding the barbeque. He reported that the backyard barbeque took place in early April in Minnesota, where the temperature was in the 30s. Mr. Hansen stated that while at the barbeque, he consumed a bratwurst outside, then briefly entered the host's home, ate two unlabeled, frosted brownies in quick succession, and then rejoined the party. Mr. Hansen also revealed that though he felt no immediate effects from the brownies, later that evening he felt tired and suffered an upset stomach, which he attributed to the bratwurst, and the next day, he called in sick to work.

After reviewing the evidence, the Board affirmed the agency's removal decision. After first concluding that Mr. Hansen was subject to random drug testing, the Board held that the government had "met its burden of showing, by preponderant evidence" that Mr. Hansen had committed the charged misconduct, discipline was warranted, and the penalty was reasonable. J.A. 13. The Board acknowledged that inadvertent ingestion would be relevant to its decision, if shown. But it determined that Mr. Hansen, not the government, bore the "burden of showing such inadvertent ingestion," reasoning that Mr. Hansen held the relevant facts and that past cases declining to penalize inadvertent drug use implicitly relied on findings that the employee had proven inadvertent use. J.A. 9–10.

Considering the evidence of inadvertence introduced by Mr. Hansen, the Board found that he failed to "present[ ] sufficient proof of inadvertent ingestion to warrant interfering" with the agency's removal decision. J.A. 10. The Board explained that Mr. Hansen relied on "third-hand hearsay" to support his story and had not supplied "statements from the hosts, other attendees who observed the presence of the brownies, or the individuals who brought the brownies," or even evidence confirming that he ate brownies. J.A. 11. It further noted that though Mr. Hansen claimed fatigue and upset stomach after consuming the brownies, he attributed those ailments to marijuana consumption only after the deciding official expressed skepticism regarding his lack of symptoms. Even accepting that marijuana consumption might produce the symptoms Mr. Hansen belatedly reported, the Board credited expert testimony that fatigue and upset stomach might occur for many other reasons. It therefore concluded that the government had met its burden, "in significant part" because Mr. Hansen did not prove his inadvertent ingestion theory. J.A. 13. Mr. Hansen appeals, and we have jurisdiction. 28 U.S.C. § 1295(a)(9).

DISCUSSION

We review the Board's legal conclusions de novo and its fact findings for substantial evidence. See Campbell v. Merit Sys. Prot. Bd. , 27 F.3d 1560, 1564 (Fed. Cir. 1994). We may reverse the Board only if its decision is "(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." Cobert v. Miller , 800 F.3d 1340, 1347–48 (Fed. Cir. 2015).

I

We first consider whether the Board properly held the government to its burden of proof. Before removing an employee, the government must prove by preponderant evidence that: (1) the charged misconduct occurred, (2) there is a nexus between what the employee did and disciplining the employee to promote the efficiency of the service, and (3) the particular penalty is reasonable. See Pope v. U.S. Postal Serv. , 114 F.3d 1144, 1147 (Fed. Cir. 1997) ; see also Hale v. Dep't of Transp. , 772 F.2d 882, 885 (Fed. Cir. 1985). The burden of proof never shifts from the government, but once the government presents evidence tending to establish each of these elements, "the burden of going forward with evidence to rebut that showing necessarily shifts to the employee, who is in the best position to present explanatory evidence to counter that showing." Schapansky v. Dep't of Transp. , 735 F.2d 477, 482 (Fed. Cir. 1984) ; see also Allred v. Dep't of Health & Human Servs. , 786 F.2d 1128, 1131–33 (Fed. Cir. 1986) (sustaining removal where employee failed to rebut nexus and failed to rebut reasonableness of penalty). Taking into account all of the facts and circumstances, the Board must then determine whether the government has met its burden. See Schapansky , 735 F.2d at 482–83.

Extrapolating from cases in which this court and the Board have reversed removal where an employee inadvertently ingested drugs, Mr. Hansen argues that by requiring him to show inadvertent ingestion, the Board misplaced the burden of proof. Pet'r's Br. 2, 9–10. Mr. Hansen assumes that intent is either an element of a "positive test" charge or a fact the government must prove to show a nexus between the misconduct and the efficiency of the service or to prove the reasonableness of a particular penalty. We disagree. The government had no need to prove intent to establish that Mr. Hansen committed misconduct warranting removal.

Mr. Hansen's undisputedly positive test result sufficed to prove the charge of "positive test for illegal drug use—marijuana." Under agency policy, a positive drug test suffices to find illegal drug use and constitutes misconduct. See J.A. 50, 89. As the Board found, under that policy, the government need only show a...