JEFFREY A. HANSEN, Petitioner
DEPARTMENT OF HOMELAND SECURITY, Respondent
Petition for review of the Merit Systems Protection Board in
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.
A. D'Agostino, The Federal Practice Group Worldwide
Service, Washington, DC, for amicus curiae Metropolitan
Washington Employment Lawyers Association.
O'Malley, Chen, and Stoll, Circuit Judges.
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.
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.
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.
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]
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.
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.
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 brat-wurst 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 ...