Appeals Court Sustains Agency Action Removing Employee for Inadvertent Use of Marijuana

A recent decision by the U.S. Court of Appeals for the Federal Circuit; Hansen v. DHS, Fed. Cir. (2017-2584 Dec. 28, 2018), highlights the importance of using non-intent based charges.

The case stemmed from a positive drug-test of the employee for marijuana. In the court documentation, the employee alleges that his positive drug-test resulted from the inadvertent consumption of marijuana brownies at a friend’s party. From a personal perspective, I don’t know how inadvertent the consumption truly was since (according to social media); marijuana brownies are very distinct from regular brownies. Apparently, the employee’s testimony also did not sway the deciding official in the case, and the employee was removed from his position.

The case was a petition for review (PFR) of a Merit Systems Protection Board (MPSB) administrative judge’s decision to sustain the agency action of removing the employee in the case (see MSPB DE-0752-17-0076-I-1). The United States Court of Appeals for the District of Columbia Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Due to the current lack of quorum at the MSPB, the appellate court has jurisdiction to decide on PFR’s under 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).

In their decision, the court stated:

“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 [MSPB] 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 remaining arguments are either unpersuasive or waived, we affirm the Board.”

Highlighting some of the successes by the agency in this case: the agency based the removal action on the charge; “positive test for illegal drug use – marijuana.” This is a good example of a non-intent based charge and whose elements can be proved with preponderant evidence. To sustain such a charge, the agency needs to prove the following elements:

• The employee used a controlled substance;

• The use was wrongful (e.g. not a drug allowed by prescription); and

• Any test or search used to detect drugs was valid and constitutional. (See MSPB Charges and Penalties Handbook – Dewey Publications, 2015)

In the Hansen v. DHS case, the agency established all three factors. First, marijuana (aka the devil’s lettuce, weed, reefer, etc.) is still considered a controlled substance under Federal law. In 2015, then OPM Director Katherine Archuleta, issued a memorandum, amidst the backdrop of marijuana legalizations by local and state governments across the country, stating that “marijuana is categorized as a controlled substance under Schedule I of the Controlled Substances Act.” To date, there have been no changes to the classification of marijuana under that law.

Secondly, in proving the employee’s use was wrongful, I assume the employee’s decision to assert (during testing and appeal procedures) that the ingestion was inadvertent sustained this element, since the employee did not provide any lawful reasons for using the controlled substance.

Lastly, the validity and constitutionality of the drug-test were not contested by the employee in this case. During his hearing, the employee alleged that because he was not aware that he was in a testing designated position (TDP), and that the testing was arbitrary and not reasonable because he was unaware of his TDP. However, neither the employee or his counsel, raised the argument that the test was impermissible because of a lack of notice of his occupying a TDP, and the court declined to address that argument for the first time. Additionally, according to the agency’s drug-free workplace policy, employees with “access to the Customs Law Enforcement Automated Systems” are listed as testing-designated. Given that the employee had access to such systems; the Agency’s claim that the employee was in fact in a TDP and thus the drug-test was constitutional is supported.

Moreover, DHS did well in identifying the nexus between the employee’s off-duty misconduct and his position in his removal: “the 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.”

While the employee did try to argue that the inadvertent ingestion should be a mitigating factor, both the MSPB and the Appeals Court found that the agency had met its burden of proof to sustain the removal, and that the employee had failed to submit sufficient evidence to “undermine the government’s showing of nexus or the reasonableness of the penalty imposed.”

The case was listed as a precedent-setting case by the U.S. Court of Appeals.

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