911 F.3d 1362
Fed. Cir.2018Background
- Jeffrey Hansen, a CBP IT specialist, was ordered to take a random drug test, tested positive for marijuana, and did not contest the test’s accuracy.
- Hansen claimed inadvertent ingestion: he said he ate two unlabeled brownies at a friend’s backyard barbecue and later learned (through third‑hand reports) that someone had brought marijuana‑laced brownies.
- The agency issued a notice of proposed removal; the deciding official found Hansen’s inadvertence explanation unconvincing and removed him for a “positive test for illegal drug use—marijuana.”
- The Merit Systems Protection Board (MSPB) affirmed: it found the government met its burden to prove the charged misconduct, nexus, and reasonableness of penalty, and concluded Hansen failed to rebut the government’s showing with convincing evidence of inadvertent ingestion.
- The Board also found Hansen’s position was a testing‑designated position (access to Customs law‑enforcement automated systems), so the random test was permissible; Hansen raised a new Fourth Amendment/notice argument on appeal that the court declined to consider for the first time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether intent is an element of a "positive test" misconduct charge | Hansen: agency must prove intent or government must disprove inadvertent ingestion | Gov: positive test alone establishes the charged misconduct under agency policy; intent is not required | Intent is not an element; positive test sufficed to prove misconduct |
| Whether burden shifted improperly to Hansen to prove inadvertent ingestion | Hansen: Board improperly required him to prove inadvertent ingestion | Gov: burden of proof remains with government; once gov't makes its case, employee must come forward with rebuttal evidence | Board correctly required Hansen to produce rebuttal evidence; ultimate burden stayed with government |
| Whether substantial evidence supports finding of nexus and reasonableness of penalty | Hansen: inadvertence would negate nexus/reasonableness; his evidence showed inadvertence | Gov: nexus and penalty reasonable given CBP mission and weak rebuttal evidence | Substantial evidence supports Board’s finding that Hansen failed to rebut nexus and penalty was reasonable |
| Whether random testing violated Fourth Amendment / lack of notice made test unreasonable | Hansen (on appeal): no objective basis for him to know he was subject to testing; lack of written notice renders test arbitrary | Gov: Hansen occupied a testing‑designated position (access to enforcement systems) and was subject to random testing | Court declined to consider Hansen’s new notice/constitutionality argument; substantial evidence supported that his position was testing‑designated |
Key Cases Cited
- Campbell v. Merit Sys. Prot. Bd., 27 F.3d 1560 (Fed. Cir. 1994) (standard of review: legal questions de novo; factual findings for substantial evidence)
- Schapansky v. Dep’t of Transp., 735 F.2d 477 (Fed. Cir. 1984) (employee must come forward with rebuttal evidence once government makes prima facie case)
- Pope v. U.S. Postal Serv., 114 F.3d 1144 (Fed. Cir. 1997) (elements government must show before removing an employee)
- Von Raab, 489 U.S. 656 (U.S. 1989) (drug testing as a search subject to Fourth Amendment reasonableness)
- Baird v. Dep’t of the Army, 517 F.3d 1345 (Fed. Cir. 2008) (agency may adopt policies enforcing removal for failure to submit to or failing drug tests)
- Frey v. Dep’t of Labor, 359 F.3d 1355 (Fed. Cir. 2004) (two‑step framework for removal: gov't burden then employee rebuttal)
- Hale v. Dep’t of Transp., 772 F.2d 882 (Fed. Cir. 1985) (nexus and penalty reasonableness considerations)