Richard Bruhn v. Department of Agriculture
2016 MSPB 42
| MSPB | 2016Background
- Appellant (Lead Forestry Technician) admitted growing ~20 marijuana plants on his property and held a California medical marijuana card; agency proposed removal in Aug 2014 and issued a removal decision in Nov 2014.
- Appellant signed a Last-Chance Agreement (LCA): accepted a 45-day suspension, agency held removal in abeyance for 2 years contingent on no further misconduct, and appellant waived Board appeal rights if he breached.
- In May 2015 local police discovered marijuana plants in appellant’s garage; agency implemented the earlier removal effective Nov 10, 2015, citing the LCA waiver.
- Appellant timely appealed to MSPB, alleging involuntary signing of the LCA (duress, lack of representation), claiming compliance because plants were for his wife’s medical use under California law, and arguing his removal was impermissible double punishment.
- Administrative judge dismissed the appeal for lack of jurisdiction without a hearing, finding the LCA was voluntary, breached by appellant, and that the reimposition of removal under the LCA did not constitute double punishment; Board affirmed on review.
Issues
| Issue | Bruhn's Argument | USDA's Argument | Held |
|---|---|---|---|
| Whether appellant nonfrivolously alleged compliance with the LCA so as to warrant a jurisdictional hearing | He asserted he did not breach the LCA and that discovered plants were for his wife’s medical use; submitted a declaration and later evidence | Agency submitted police report showing marijuana plants on appellant’s property and argued appellant breached the LCA and waived appeal rights | Held: Appellant failed to make nonfrivolous allegations of compliance; police report establishes breach; no jurisdictional hearing required |
| Whether the LCA was involuntary or otherwise invalid (duress, lack of representation, fraud, mutual mistake) | Claimed signing under time pressure and inability to confer with representative | Agency showed appellant signed within the acceptance period and noted he waived representation; argued LCA was valid | Held: Appellant does not challenge and Board affirms that he voluntarily entered LCA; waiver enforced |
| Whether reimplementing removal after the suspension constituted impermissible double punishment | Argued LCA rescinded removal and substituted a 45-day suspension; reimplementation was a new personnel action and denied due process | Agency contended it held removal in abeyance per LCA and reimplemented that prior removal upon breach; LCA permitted reimposition | Held: Reimposition was permissible under the LCA and not double punishment; agency did not issue a new actionable personnel decision requiring additional appeal rights |
| Whether state-law medical marijuana use negates a federal-law LCA violation | Argued plants were for wife’s authorized medical use under California law | Agency relied on federal law (Controlled Substances Act) and LCA terms prohibiting federal-law violations | Held: State law does not insulate from federal illegality; CSA preempts state law (Gonzalez v. Raich); LCA enforcement justified removal |
Key Cases Cited
- Willis v. Department of Defense, 105 M.S.P.R. 466 (Board 2007) (standards for enforcing LCA waivers and grounds to challenge them)
- Hamiter v. U.S. Postal Service, 96 M.S.P.R. 511 (Board 2004) (nonfrivolous allegation of compliance entitles appellant to jurisdictional hearing)
- Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325 (Board 1994) (administrative judge may not resolve factual conflicts when claimant makes nonfrivolous showing)
- Meza v. U.S. Postal Service, 75 M.S.P.R. 238 (Board 1997) (examples of what satisfies nonfrivolous allegation of LCA compliance)
- Bahrke v. U.S. Postal Service, 98 M.S.P.R. 513 (Board 2005) (treatment of LCAs as settlement agreements and standards for invalidation)
- Cooper v. Department of Veterans Affairs, 117 M.S.P.R. 611 (Board 2012) (permitting LCAs that impose initial discipline and allow reinstatement of prior removal for subsequent misconduct)
- Sullivan v. U.S. Postal Service, 56 M.S.P.R. 196 (Board 1993) (implementation of earlier removal under settlement does not create a new appealable action)
- Ferby v. U.S. Postal Service, 26 M.S.P.R. 451 (Board 1985) (enforcement of LCA waivers where appellants knowingly waived appeal rights)
- Borninkhof v. Department of Justice, 5 M.S.P.R. 77 (Board 1981) (weighing hearsay evidence and reliance on uncontradicted agency testimony)