Federal Circuit: Intent Not An Element Of “Positive Test” Charge

The Federal Circuit Court of Appeals, via a panel decision, held that when a federal employee is removed from service on a charge of “positive test for illegal drug use,” there is no requirement for the government to prove that the employee intended to use an illegal drug.

A Department of Homeland Security Information Technology Specialist was directed to report for a random drug test, which he failed when he tested positive for marijuana. The employee did not contest the accuracy of the result, but claimed that he had never knowingly used marijuana or any other illegal substance. After the failed drug test, the employee submitted a letter to the agency in which he described the circumstances under which he came to ingest marijuana inadvertently. According to the employee, he was at a barbeque a few days before his drug test, where he ate a brownie, not knowing that it was marijuana-laced.

Despite his letter, the agency issued a notice of proposed removal, charging him with testing positive for illegal drug use, and 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.” The employee responded to the notice, attaching an affidavit from another individual (a friend) that vouched for his claim that the brownies were laced with marijuana. However, neither the friend that wrote the affidavit nor the employee identified the individual who hosted the barbeque, nor the person who brought the brownies to the barbeque.

The agency sustained the employee’s removal, and the employee appealed his removal to the Merit Systems Protection Board (“MSPB”). An administrative judge of the Board affirmed the agency’s decision, holding that the agency met its burden of showing that the employee committed the charged misconduct, discipline was warranted, and the penalty was reasonable. The employee appealed the MSPB’s decision to the Federal Circuit Court of Appeals. On December 28, 2018, the appeals court affirmed the MSPB’s decision.

In an opinion by Judge Stoll, the appeals court found that the employee’s “undisputedly positive test result sufficed to prove the charge of ‘positive test for illegal drug use—marijuana.” The appeals court noted that the agency’s policy dictates that a positive drug test is sufficient evidence to find illegal drug use, and that illegal drug use constitutes misconduct. Under this test, the appeals court stated, the government need only show a positive drug test in order to prove a “positive test” charge.

The appeals court also held that intent is not an element of a “positive test” charge, and the agency need not prove intent in order to show that the employee’s misconduct impacted the efficiency of the service or that the penalty of removal was reasonable. Absence of intent, per the appeals court, may be relevant to an employee attempting to rebut the government’s assertion of “nexus or reasonableness in some circumstances.” According to the appeals court, the Board’s analysis of whether the penalty was reasonable must necessarily include any evidence of inadvertence, but there is no burden on the government to prove intent in order to prove that the penalty was reasonable. Likewise, although the appeals court previously held in Torres v. Department of Justice, 343 F. App’x 610 (Fed. Cir. 2009) that it does not promote the efficiency of the service for an agency to remove an employee who did not know the substance used was a controlled substance, the burden to show that the particular circumstances of the case differs from typical “positive test” circumstances rests with the employee.

For the above stated reasons, the Federal Circuit Court of Appeals affirmed the decision of the Merit Systems Protection Board sustaining the employee’s removal from federal service.

Read the full case: Hansen v. DHS.

This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update


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