                         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
                                                                                       2

     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.
                                                                                       3

¶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.
                                                                                               5

      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.
                                                                                       6

      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 .
                                                                                          7

      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
                                                                                         8

      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.
                                                                                           9

      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”
                                                                                      10

      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
                                                                                 11

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
                                                                                 12

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.
