The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 42
Docket No. SF-0752-16-0156-I-1
Richard Bruhn,
Appellant,
v.
Department of Agriculture,
Agency.
November 22, 2016
Brook L. Beesley, Alameda, California, for the appellant.
Rachel Trafican, Esquire, Albuquerque, New Mexico, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction. For the reasons discussed
below, we DENY the petition for review and AFFIRM the initial decision.
BACKGROUND
¶2 The appellant held the position of Lead Forestry Technician (Fire Engine
Operator) with the agency. Initial Appeal File (IAF), Tab 5 at 16. In
August 2014, the agency proposed his removal for conduct unbecoming a Federal
employee based on his admissions that approximately 20 marijuana plants were
grown on his personal property and that he possessed a State of California
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medical marijuana card. Id. at 29. In November 2014, following the appellant’s
response to the proposal notice, the agency issued a removal decision. Id.
at 25-28. The agency offered the appellant a last-chance agreement (LCA), and
provided him the 7 days to accept or reject. Id. at 24. The appellant signed the
agreement 2 days later. Id. at 20-22.
¶3 Pursuant to the terms of the LCA, the appellant agreed to serve a 45 -day
suspension for the charged misconduct. Id. at 20. The agency agreed to hold the
appellant’s removal in abeyance for 2 years pending his “satisfactory completion”
of the LCA. Id. at 21. During this period, the appellant was to refrain from
engaging in any misconduct and to abide by all agency and Federal Government
rules, regulations, and policies, and Federal and state laws. Id. at 20. The terms
of the LCA also specified that the appellant agreed and understood that the
agency could implement his removal immediatel y upon discovering that he had
engaged in any misconduct during the 2-year period, and that he waived his right
to appeal or contest any such removal. Id. The final paragraph of the LCA stated
that the parties “freely and voluntarily agree[d]” to the LCA conditions, “had
sufficient time to consider” its terms, and had discussed it “with their respective
representatives, if any.” Id. at 22. The appellant signed the LCA and wrote the
following note on the signature line for his representative: “Not able to make
contact within time frame.” Id.
¶4 In May 2015, local law enforcement entered the appellant’s home to
investigate a possible burglary and discovered marijuana plants growing in his
garage. Id. at 18. Local law enforcement reported this information to Federal
law enforcement in October 2015. Id. at 16. Based on this information, the
agency issued a decision letter implementing the appellant’s November 2014
removal, effective November 10, 2015. Id. at 16. In the decision letter, the
agency informed the appellant that he had waived his right to grieve or appeal the
agency’s removal decision under the terms of the LCA. Id.
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¶5 The appellant filed a timely appeal with the Board and requested a hearing.
IAF, Tab 1 at 2-3. The administrative judge issued an acknowledgment order
informing the appellant of his burden of proving jurisdiction over his appeal , and
ordering the appellant to file evidence and argument on the jurisdictional issue.
IAF, Tab 2 at 2-3.
¶6 In response, the appellant argued that he signed the LCA involuntarily,
under “time pressure duress” and “without any allowed input from [his]
designated representative.” IAF, Tab 4 at 3. He also argued, in essence, that his
removal was prohibited double punishment because he had served a 45-day
suspension for the same misconduct pursuant to the terms of the LCA . Id. at 4.
According to the appellant, he did not breach the LCA because any marijuana
found growing on the property that he jointly owned with his wife was for her use
in mitigating the side effects of her cancer treatment, as permitted by California
law. Id. at 4-11. The agency responded by filing a motion to dismiss, arguing
that the Board lacks jurisdiction to review the appellant’s removal because the
LCA was valid and he breached it. IAF, Tab 5 at 8-13.
¶7 Without affording the appellant his requested hearing, the administrative
judge issued an initial decision dismissing the appeal. IAF, Tab 1 at 2, Tab 9,
Initial Decision (ID) at 1, 22. He found that the appellant voluntarily entered into
the LCA 5 days before the deadline set by the agency, after choosing to waive his
right to representation. ID at 17-19. In addition, the administrative judge
determined that the appellant’s removal was not prohibited double punishment for
the same conduct at issue in his prior 45-day suspension. ID at 16-17. The
administrative judge also found that the growth of marijuana on property that the
appellant jointly owned with his wife breached the LCA. ID at 13-15, 17. Based
on the appellant’s breach of an enforceable LCA, the administrative judge found
that the Board lacked jurisdiction over the appellant’s removal because he had
waived his appeal rights in the LCA. ID at 21-22; IAF, Tab 5 at 20.
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¶8 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. 1 The agency has responded to the petition for
review and the appellant has replied. PFR File, Tabs 3-4.
ANALYSIS
The administrative judge properly found that the appellant faile d to meet his
jurisdictional burden.
¶9 The appellant bears the burden of proving that his appeal is within the
Board’s jurisdiction. Willis v. Department of Defense, 105 M.S.P.R. 466, ¶ 17
(2007); 5 C.F.R. § 1201.56(b)(2)(i)(A). The Board lacks jurisdiction over an
action taken pursuant to an LCA in which an appellant waives his right to appeal
to the Board. Willis, 105 M.S.P.R. 466, ¶ 17. To establish that a waiver of
appeal rights in an LCA should not be enforced, an appellant must show that:
(1) he complied with the LCA; (2) the agency materially breached the LCA or
acted in bad faith; (3) he did not voluntarily enter into the LCA; or (4 ) the LCA
resulted from fraud or mutual mistake. Id.
¶10 If an appellant raises a nonfrivolous allegation that he complied with an
LCA, he is entitled to a jurisdictional hearing to determine, whether, in fact, he
complied with the LCA so that any waiver of appeal rights should not be enforced
against him. Hamiter v. U.S. Postal Service, 96 M.S.P.R. 511, ¶ 12 (2004).
Nonfrivolous allegations of Board jurisdiction are allegatio ns of fact that, if
proven, could establish a prima facie case that the Board has jurisdiction over the
matter at issue. Willis, 105 M.S.P.R. 466, ¶ 18. In determining whether the
appellant has made a nonfrivolous allegation of jurisdiction entitling him to a
hearing, an administrative judge may consider the agency’s documentary
submissions; however, to the extent that the agency’s evidence constitutes mere
1
On review, the appellant does not challenge the administrative judge’s findings that he
voluntarily entered into the LCA and waived his appeal rights. We decline to disturb
these findings on review.
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factual contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
conflicting assertions of the parties and the agency’s evidence may not be
dispositive. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994).
¶11 The appellant argues on review that he presented nonfrivolous allegations
of compliance below, including specific evidence of compliance that the agency
did not refute. 2 PFR File, Tab 1 at 6-8. Therefore, he asserts that he met his
burden to nonfrivolously allege compliance. Id.
¶12 In finding that the appellant failed to nonfrivolously allege compliance
with the LCA, the administrative judge considered the appellant’s declaration and
supporting evidence submitted below. ID at 13-15; IAF, Tab 4. However, he
concluded that there was no dispute that, as of May 2015, there were marijuana
plants being grown on the appellant’s joint property. ID at 14. We agree.
¶13 The appellant submitted a sworn declaration in which he stated that he “did
not breach the LCA.” IAF, Tab 4 at 4. However, he did not deny the presence of
marijuana plants on his property. Instead, he simply argued that the agency
presented no evidence of its claims. Id. His conclusory statement that the agency
did not prove his noncompliance with the LCA is insufficient to meet his burden.
See 5 C.F.R. § 1201.4(s)(1) (explaining that a nonfrivolous allegation is more
than conclusory). Rather, he was required to make nonfrivolous allegations of his
own compliance. See Meza v. U.S. Postal Service, 75 M.S.P.R. 238, 241 (1997)
(finding that an appellant’s allegation that his positive drug test resulted from
2
The appellant also asserts that the agency engaged in bad faith . PFR File, Tab 1 at 8.
However, the only evidence he cites in support of this assertion is his own statement
that the agency failed to explain fully his misconduct in the November 2015 decision
letter. IAF, Tab 4 at 6. We find that the decision letter was sufficiently specific in that
it notified the appellant that his prior removal was being implemented because, in
May 2015, local law enforcement discovered marijuana growing on his property. IAF,
Tab 5 at 16.
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passive exposure to marijuana was sufficient to meet his burden to nonfrivolously
allege that he complied with an LCA that he refrain from using illegal drugs). He
did not do so. IAF, Tab 4.
¶14 The agency, in contrast, provided a report from the local police who
discovered the marijuana on the appellant’s property in May 2015. IAF, Tab 5
at 18-19. According to that report, the officers “located numerous small
marijuana plants inside the garage” of the appellant’s residence. Id. at 18. In the
absence of any evidence to the contrary, we find that this report is sufficient to
establish its stated facts. See Borninkhof v. Department of Justice, 5 M.S.P.R. 77,
87 (1981) (discussing the factors to be considered in weighing hearsay evidence,
including whether the declarant was disinterested and the absence of
contradictory evidence).
¶15 To the extent that the appellant argues that he complied with the LCA
because the marijuana was for his wife’s medical treatment as permitted by the
California Compassionate Use Act of 1996, we disagree. PFR File, Tab 1 at 7;
IAF, Tab 4 at 4-6. The appellant agreed in the LCA that any misconduct,
including any violation of Federal law, would result in his removal. IAF, Tab 5
at 20. Marijuana is a Schedule I controlled substance under the Controlled
Substances Act. See 21 U.S.C. §§ 802(16), 812, Schedule I(c)(10). It is illegal to
manufacture or possess a Schedule I controlled substance, even for medical use.
21 U.S.C. §§ 812(b)(1)(B)-(C), 841(a)(1).
¶16 The fact that the appellant’s activities were pe rmitted by California law
cannot insulate him from the consequences of those actions. The Controlled
Substances Act preempts California’s Compassionate Use Act. U.S. Const. art.
VI, cl. 2 (the Supremacy Clause); Gonzalez v. Raich, 545 U.S. 1, 29 (2005).
Further, the Federal Government continues to designate marijuana as a dangerous
drug notwithstanding state laws purporting to legalize its use. IAF, Tab 4
at 13-15. Therefore, the appellant’s conduct remains illegal under Federal law .
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His violation of Federal law justifies the implementation of his prior removal
under the terms of the LCA. IAF, Tab 5 at 20.
The agency did not impermissibly punish the appellant twice or violate his right
to due process.
¶17 The appellant also argues on review that, pursuant to the terms of the LCA,
the agency rescinded his prior removal and imposed a new 45 -day suspension.
PFR File, Tab 1 at 8. He suggests that his November 2015 removal was double
punishment for the same conduct that served as the basis of his suspension . Id.
¶18 The Board has held that when, as here, an LCA was not reached during the
course of a Board appeal, its validity still may be considered to determine its
effect on the personnel action before the Board. Bahrke v. U.S. Postal Service,
98 M.S.P.R. 513, ¶ 11 (2005). An LCA is a settlement agreement, which is a
contract. Id. A party challenging the validity of a settlement agreement bears a
heavy burden of showing a basis for invalidation. Id. Nevertheless, a party may
challenge the validity of a settlement agreement if the party believes that the
agreement is unlawful, involuntary, or the result of fraud or mutual mistake. Id.
¶19 It appears that, in arguing that the LCA permits his double punishment for
the same misconduct, the appellant is asserting that the LCA is unlawful. Outside
the context of a settlement agreement, the Board has long held that an agency
cannot impose a disciplinary or adverse action more than once for the same
misconduct. Cooper v. Department of Veterans Affairs, 117 M.S.P.R. 611, ¶ 5
(2012), aff’d, 515 F. App’x 897 (Fed. Cir. 2013). However, LCAs, like
settlement agreements generally, serve the important public policy of avoiding
unnecessary litigation and encouraging fair and speedy resolution of issues.
Id., ¶¶ 7-8. The incorporation of some discipline into an LCA makes it more
likely that an agency will consider entering into the agreement because the
employee will not escape all punishment for the charged offense . Id., ¶ 8.
Therefore, the Board has declined to invalidate an LCA that imposed a suspension
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for an appellant’s misconduct, and also provided that future misconduct would
lead to the reimposition of the removal that led to the LCA. Id., ¶¶ 2, 5, 8-9.
¶20 Here, the agency did not rescind the appellant’s prior removal , as he
claims, but rather held it in abeyance for 2 years pending his satisfactory
completion of the terms of the LCA. IAF, Tab 1 at 20-21. The appellant agreed
to serve a 45-day suspension for his misconduct and that the agency could
effectuate his removal for the same misconduct at any time during the 2-year
period if he again violated Federal law. Id. Therefore, we agree with the
administrative judge’s finding that the appellant’s removal for the same
misconduct that served as the basis for a 45-day suspension was permissible. ID
at 16-17.
¶21 As a corollary, the appellant asserts that his November 2015 removal was
“a new personnel action” rather that the implementation of his prior removal.
PFR File, Tab 1 at 8. Thus, he argues that the agency deprived him of “minimum
due process to appeal notice and reply rights.” Id.
¶22 In the November 2015 removal decision, the agency explained that, based
on local law enforcement’s discovery of marijuana on the appellant’s personal
property in May 2015, “the Agency is implementing your removal action as noted
in the Letter of Decision dated November 14, 2014.” IAF, Tab 5 at 16. Thus,
although the basis for finding that the appellant breached the LCA was his
subsequent misconduct, the agency did not issue a new personnel action. 3 See
Sullivan v. U.S. Postal Service, 56 M.S.P.R. 196, 200 (finding that, although an
agency referenced an appellant’s subsequent misconduct in reimposing his earlier
3
We modify the administrative judge’s finding that there were distinct bases for the
appellant’s November 2014 and November 2015 removal decisions. ID at 16-17. Both
removals were based on his prior admissions that marijuana was grown on his personal
property and he possessed a California medical marijuana card. IAF, Tab 5 at 16,
20-21, 25, 29.
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removal pursuant to the terms of a settlement agreement , only the merits of the
earlier removal were before the Board), aff’d per curiam, 11 F.3d 1073 (Fed. Cir.
1993) (Table). Because we find that the LCA is valid, and it contained a waiver
of the appellant’s right to appeal to the Board or otherwise contest his removal,
we conclude that the agency did not violate his right to due process when it
implemented his removal without providing a right to respond or notice of Board
appeal rights. IAF, Tab 5 at 20; see Ferby v. U.S. Postal Service, 26 M.S.P.R.
451, 455-56 (1985) (finding that the Board may enforce an LCA pursuant to
which the appellants knowingly and intentionally waived their right to appeal the
reinstatement of their suspended penalties).
The administrative judge properly rejected the appellant’s late -filed submission.
¶23 Two days after the initial decision was issued, the administrative judge
received a motion from the appellant to supplement the record, which the
administrative judge rejected. IAF, Tab 11. The appellant appears to argue that
his motion was timely and that he was not required to show good cause, even if it
was untimely. PFR File, Tab 1 at 2-4. However, the administrative judge did not
have the authority to grant the appellant’s motion after issuance of the initial
decision. See Rittgers v. Department of the Army, 117 M.S.P.R. 182, ¶¶ 7, 13
(2011) (finding that an administrative judge was without authority to grant a
motion for certification of an interlocutory appeal filed after she issued the initial
decision); 5 C.F.R. § 1201.112(a) (providing a limited list of matters over which
an administrative judge retains jurisdiction after issuing the initial decision).
¶24 The appellant also argues on review that some of the documents contained
in this submission were obtained in discovery, and thus not available until
March 14, 2016, after the record on jurisdiction closed on January 4, 2016. PFR
File, Tab 1 at 1, 3; IAF, Tab 2 at 3. He resubmits this evidence on review. PFR
File, Tab 1 at 10-55.
¶25 The appellant stated in his timely December 28, 2015 jurisdictional
response that he was “unable to provide additional jurisdictional information”
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pending the agency’s response to his discovery request. IAF, Tab 4 at 1.
However, he did not supplement his jurisdictional response or file a motion f or an
extension during the intervening period, even though the init ial decision was not
issued until over 2 months later. Therefore, we find that the appellant failed to
exercise due diligence, and we decline to consider the new evidence he submits
on review. See Fisher v. Department of Defense, 59 M.S.P.R. 165, 170-71 (1993)
(finding that an administrative judge did not abuse his discretion in denying a
motion to extend the discovery period and to postpone the prehearing submission
and hearing dates because the appellant failed to exercise due diligence by timely
initiating discovery or requesting an extension of the time limit for doing so) ;
5 C.F.R. § 1201.115(d) (reflecting that the Board may grant a petition for review
upon a showing that new and material evidence is available that, despite the
petitioner’s due diligence, was not available when the record closed) .
¶26 Accordingly, we find that the administrative judge properly dismissed the
appeal for lack of jurisdiction.
ORDER
¶27 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. Court of Appeals for the Federal Circuit. You must submit your req uest to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this st atutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD:
______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.