Catherine A. Avila v. Department of Agriculture

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CATHERINE A. AVILA,
Petitioner
v.
DEPARTMENT OF AGRICULTURE,
Respondent
______________________
2024-2073
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-17-488-I-1.
______________________
Decided: April 11, 2025
______________________
CATHERINE A. AVILA, Alameda, CA, pro se.
BRYAN MICHAEL BYRD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, ELIZABETH MARIE H OSFORD, P ATRICIA M.
MCCARTHY .
______________________
Before REYNA, BRYSON, and STOLL , Circuit Judges.
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AVILA v. DEPARTMENT OF AGRICULTURE 2
P ER CURIAM .
Petitioner Catherine A. Avila seeks review of a decision
by the Department of Agriculture for conduct unbecoming
a federal employee. We affirm.
I
Ms. Avila was employed by the Forest Service, an
agency within the Department of Agriculture, as a Forest
Technician at the Mendocino National Forest (“MNF”) in
California. Her position required her to perform a wide
range of duties, including enforcing laws and regulations
applicable to the national forests, interacting with mem-
bers of the public in various ways, and coordinating volun-
teer programs. See Supp. App. 48–53.1
In May 2016, a District Ranger with the Forest Service
received an anonymous note stating that the writer had
smelled marijuana on Ms. Avila’s person. The Forest
Ranger passed the note to a Forest Service Special Agent,
who investigated the matter together with a representative
of the Department of Agriculture’s Office of Inspector Gen-
eral. In the course of their investigation, they found that a
number of marijuana plants were being cultivated in the
backyard of the residence that Ms. Avila owned and shared
with her husband.
In November 2016, the Forest Service interviewed Ms.
Avila. During the interview, she admitted that marijuana
was being grown, processed, packaged, and sold at her
property, although she asserted that her husband was re-
sponsible for the various activities involving the mariju-
ana, and that she took no part in those activities.
1 “Supp. App.” refers to pages of the Supplemental
Appendix filed with the Department of Agriculture’s Infor-
mal Response Brief.
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AVILA v. DEPARTMENT OF AGRICULTURE 3
In January 2017, the agency notified Ms. Avila that it
was proposing to remove her for conduct unbecoming a fed-
eral employee. The specification accompanying the notice
of proposed removal stated the following:
In your statement dated November 3, 2016, you ad-
mit that Marijuana plants have been growing on
your property since May 2016. You also admit that
Marijuana is processed, packaged and sold at your
property. On July 19, 2016, United States Forest
Service Special Agent (SA) Roger Mayo conducted
an overflight of your home and property with
United States Department of Agriculture Office of
Inspector General (OIG) Special Agent (SA) Caleb
Landess. SA Mayo and SA Landess observed and
photographed approximately 10–12 marijuana
plants growing directly behind your house and on
your property.
Supp. App. 23. Ms. Avila was given an opportunity to re-
spond to the notice of removal. After considering Ms.
Avila’s response and the Douglas factors bearing on the ap-
propriate penalty,2 the Deputy Regional Forester removed
Ms. Avila from her position effective May 12, 2017.
Ms. Avila appealed her removal to the Merit Systems
Protection Board. In February 2018, following a hearing,
the administrative judge who was assigned to her case up-
held the removal action. The administrative judge found
that the agency had “met its burden of providing by pre-
ponderant evidence that the specified conduct was im-
proper, unsuitable, or detracted from [Ms. Avila’s]
character or reputation,” and thus qualified as conduct un-
becoming a federal employee. Supp. App. 26.
2 These factors are set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305 (1981).
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AVILA v. DEPARTMENT OF AGRICULTURE 4
In reaching that finding, the administrative judge re-
ferred to the testimony of the MNF Supervisor, Ann Carl-
son, who explained that a lot of marijuana is grown in the
area, including in the forest, and federal employees are for-
bidden from being involved in that activity. See Feb. 6,
2018 M.S.P.B. Hr’g Tr. 17; Supp. App. 25–26. The admin-
istrative judge further noted that Ms. Carlson had testified
that the agency was concerned about Ms. Avila’s conduct
because Ms. Avila’s position required her “to inspect, en-
force, monitor, report, and/or guide individuals present on
the MNF Federal lands consistent with Federal laws.”
Supp. App. 26.
In finding that Ms. Avila was aware of the marijuana-
related activities on her property, the administrative judge
relied on her signed statement in November 2016 to the
Forest Service. Ms. Avila sought to back away at the hear-
ing from some of the admissions she made in that state-
ment, but the administrative judge found that her
testimony in that regard was not credible. Id. at 35; see
also id. at 24.
As for the penalty, the administrative judge found that
the agency had satisfied its burden to show a nexus be-
tween the sustained charge and Ms. Avila’s “ability to ac-
complish [her] duties satisfactorily.” Id. at 34–35. Given
Ms. Avila’s responsibilities for enforcing federal laws, the
administrative judge took note of Ms. Carlson’s expressed
concern about Ms. Avila’s ability to accomplish those duties
satisfactorily. Id. The administrative judge held that the
penalty was “within tolerable limits of reasonableness” in
light of the agency’s consideration of the relevant factors,
including the record of two other recent disciplinary actions
against Ms. Avila. Id. at 35–37.
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AVILA v. DEPARTMENT OF AGRICULTURE 5
Ms. Avila petitioned for review by the full Board, which
sustained the removal action on May 16, 2024.3 The Board
upheld the administrative judge’s rulings with respect to
the charged conduct and the penalty imposed, but cor-
rected the administrative judge’s ruling on one procedural
issue and addressed a second claim that the administrative
judge had not addressed. Supp. App. 1–12; Avila v. Dep’t
of Agric., No. SF-0752-17-0488-I-1, 2024 WL 2239706
(M.S.P.B. May 16, 2024). Neither of the latter issues is
presented as a matter for resolution in the present petition.
II
A
Ms. Avila contends that it was improper for the Forest
Service to remove her for conduct that was not criminal or
unethical, and for which she was not personally responsi-
ble. The marijuana-related activities that formed the basis
for the charge against her, she argues, were all attributable
to her husband. Moreover, she asserts that his conduct was
lawful under California law, as he possessed a medical ma-
rijuana card and thus his possession of marijuana was not
a crime in California. Finally, invoking President Biden’s
recent pardons issued to persons charged federally with
simple possession or use of marijuana, she argues that it
was improper for her to be removed from her position based
on conduct similar to that which President Biden has de-
clared should not be subject to criminal sanctions.
While California law may be permissive with respect to
marijuana, federal law is not. Possession and distribution
of marijuana is still a federal crime. And President Biden’s
3 The long delay between the decision of the admin-
istrative judge in 2018 and the decision of the full Board in
2024 appears to be largely attributable to the lengthy in-
terval during which the Board lacked a quorum and was
unable to process petitions for review to the full Board.
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AVILA v. DEPARTMENT OF AGRICULTURE 6
decision to pardon persons convicted of simple possession
or use of marijuana does not suggest that agencies may not
discipline employees for violating federal criminal laws,
even if some states no longer impose criminal sanctions for
such conduct.
The more substantial argument made by Ms. Avila is
that she was not involved in the marijuana-related activi-
ties at her home, as her husband was solely responsible for
growing, drying, using, transporting, and selling the mari-
juana grown in the backyard of the family house. The
agency, she states, did not offer any evidence that she was
personally involved with any of those activities. She ar-
gues that she cannot, in effect, be held vicariously liable for
his conduct.
While it is true that the agency did not allege that Ms.
Avila was personally engaged in cultivating, distributing,
transporting, and selling the marijuana grown at her
home, the matter is not that simple. In a memorandum
dated April 29, 2015, the Forest Supervisor reminded all
the MNF employees that marijuana, “for any use, or pos-
session, is illegal under federal law[ r]egardless of state law
or medical prescription and regardless of whether you are
on or off duty.” Supp. App. 56. The memorandum added
that any employee found to use or be in possession of ma-
rijuana will be subject to disciplinary sanctions. Id.
In August of the following year, the Forest Supervisor
sent another memorandum on the same subject to all the
MNF employees, this time more specifically defining the
prohibited conduct. The 2016 memorandum repeated the
warning that all marijuana use or possession was unlawful
under federal law “regardless of whether you are on or off
duty.” Id. at 59. It then added: “To be clear you cannot be
a federal employee and grow marijuana at your home even
if you or your spouse has a medical marijuana prescrip-
tion.” Id.
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AVILA v. DEPARTMENT OF AGRICULTURE 7
That memorandum was sent a few days after the For-
est Service investigators discovered that marijuana was
being cultivated at Ms. Avila’s home. In light of that mem-
orandum, Ms. Avila was on clear notice that growing mari-
juana at her home was not permissible.
Although Ms. Avila contends that she was not in pos-
session of the marijuana discovered at her home, she was
a co-owner of the home and surrounding property where
the marijuana was grown, dried, and stored, and from
which it was sold. As the administrative judge noted, Ms.
Avila admitted that marijuana had been “growing on her
co-owned property since May 2016, dried in her garage,
processed in her house, packaged up in her house, pur-
chased from her house for cash with the cash stored at her
house, and transported in her car.”4 Id. at 23. If she found
it unclear whether it was permissible for her husband to
grow marijuana at their home as long as she was not di-
rectly involved in any marijuana-related activities, she
could have sought guidance from the agency on that issue,
but she did not.
The Forest Service was legitimately concerned that her
work responsibilities, which included enforcing laws and
regulations pertaining to the national forest, would be com-
promised by her non-compliance with federal drug laws.
See Feb. 6, 2018 M.S.P.B. Hr’g Tr. 121–22. Moreover, the
Forest Service was reasonably concerned that Ms. Avila’s
association with the marijuana operations at her home re-
flected on the agency’s reputation. As the Forest Supervi-
sor testified, Ms. Avila’s status as a federal employee was
well known in the small community in the vicinity of the
Mendocino National Forest. Supp. App. 25–26. And be-
cause it had been reported that the smell of marijuana
4 Ms. Avila acknowledges that she and her husband
jointly owned the property where the marijuana was
grown. Petitioner’s Br. 3.
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AVILA v. DEPARTMENT OF AGRICULTURE 8
could be detected on her person, the agency could reasona-
bly be concerned that visitors to the national forest and vol-
unteer workers whom she supervised would have an
unfavorable view of the agency.
Under these circumstances, and particularly in light of
the warnings given by the agency to its employees—includ-
ing the August 2016 memorandum directed to growing ma-
rijuana at home—it was reasonable for the agency to treat
Ms. Avila’s behavior as conduct unbecoming a federal em-
ployee.
B
Invoking the “freedom of association” principle drawn
from the First Amendment, Ms. Avila argues that the ac-
tion against her violated her freedom to associate with her
husband. Petitioner’s Br. 8. Both the administrative judge
and the Board held that she had not adequately developed
her “freedom of association” argument. The Board ex-
plained that even though Ms. Avila was represented at all
times during her appeal, she devoted only one sentence of
her prehearing submission to the “freedom of association”
defense; she “offered no evidence in support of her freedom
of association assertions; [she] did not object to the pre-
hearing order’s failure to identify this affirmative defense
as an issue on appeal, despite having an opportunity to do
so; and [she] did not elaborate on this argument on review.”
Id. at 6 n.4. Ms. Avila has not meaningfully challenged
those findings by the Board. In light of those findings, we
agree with the Board that Ms. Avila has not preserved that
claim.
C
Finally, to the extent that Ms. Avila objects that the
penalty of removal was unduly harsh in this case, we note
that “determination of an appropriate penalty is a matter
committed primarily to the sound discretion of the employ-
ing agency.” Beard v. Gen. Servs. Admin., 801 F.2d 1318,
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AVILA v. DEPARTMENT OF AGRICULTURE 9
1322 (Fed. Cir. 1986). When the agency has sustained all
the charges against an employee and has reviewed the ap-
plicable considerations bearing on the selection of a pen-
alty, and when the penalty has been upheld by the Board,
our review is extremely narrow. We defer to an agency’s
choice of penalty “unless the penalty exceeds the range of
permissible punishment specified by statute or regulation,
or unless the penalty is so harsh and unconscionably dis-
proportionate to the offense that it amounts of an abuse of
discretion.” Vestal v. Dep’t of the Treasury, 1 F.4th 1049,
1053 (Fed. Cir. 2021); Archuleta v. Hopper, 786 F.3d 1340,
1352 (Fed. Cir. 2015); Brook v. Corrado, 999 F.2d 523, 528
(Fed. Cir. 1993).
In this case, while the penalty was harsh, it was not
outside the tolerable bounds of discretion, especially in
light of the fact that Ms. Avila had been warned, via the
two agency memorandums, not to engage in precisely the
conduct for which she was later disciplined and the fact
that she had been twice previously disciplined by the
agency for misconduct, specifically for failure to follow di-
rections. In addition, the deciding official noted that alt-
hough Ms. Avila has a long tenure with the Forest Service
(a factor the deciding official treated as a mitigating factor),
her “dependability has been lacking as well due to missing
deadlines and/or turning in work product that is incom-
plete or of poor quality.” Supp. App. 79.
In view of the agency’s careful consideration of all of
the factors bearing on the penalty decision, see Supp. App.
76–81, we conclude that the agency’s choice of penalty was
not an abuse of discretion. We therefore sustain the
Board’s decision upholding Ms. Avila’s removal.
No costs.
AFFIRMED
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