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 immediately 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 failed 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 allegations 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 permitted 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.
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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” 
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 initial 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 request 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.