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Hansen v. Department of Homeland Security

United States Court of Appeals, Federal Circuit

December 28, 2018


          Petition for review of the Merit Systems Protection Board in No. DE-0752-17-0076-I-1.

          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.


         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.


         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 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 ...

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