Petition for Writ of Certiorari — DeLong v. Department of Health & Human Services

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Supreme Court, US.

FILED

O1)4 Lu mar 21 2002

No. OPRFICE OF [HE CURRIN

In the

Supreme Court of the United States

LOIS DELONG,

Petitioner,

Vv.

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Respondent.

PETITION FOR A Writ oF CERTIORARI TO

THE UNiTeD STaTEs Court OF APPEALS

FOR THE FEDERAL CIRCUIT

PETITION FOR WRIT OF CERTIORARI

John Fredericks, III

Counsel of Record

FREDERICKS, PELCYGER &

HESTER, LLC

1075 South Boulder Road

Suite 305

Louisville, CO 80027

(303) 673-9600

Attorneys for Petitioner

ere

Curry & TaAYLor @ (202) 393-4141 @ HTTP?//USsciINro.com

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oo SR

VORA Ret wre

QUESTIONS PRESENTED

1. Does Section 408 of the Indian Child Protection

and Family Violence Prevention Act (25 U.S.C. §3207(a)-(b)),

on its face or as applied, deprive covered federal employees

of liberty and/or property without due process of law because

it employs an irrebuttable presumption that a federal

employee convicted of a past crime is unfit to work around

children, and must therefore be removed from federal

service?

2. Is Section 3207 (a)-(b), on its face or as applied, an

unconstitutional Bill of Attainder or Ex Post Facto law

because it mandates the termination of a tenured federal

employee s employment based solely on one past criminal

conviction, which occurred some sixteen years before

§3207(a)-(b) was enacted?

3. May Section 3207(a)-(b) be applied retroactively to

Petitioner's conduct, which occurred some sixteen years

before the Act was passed, when the result is the termination

of government employment based solely on that past

conduct?

4. If a statute is susceptible to an interpretation that will

avoid a serious constitutional question, should a federal

Agency and courts be required to interpret the statute in that

manner?

TABLE OF CONTENTS

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TABLE, OF BAPRIO IID aisiissiscsccccccssasaenaptsdnemetnaeanaiincecerle toe iv

OPINIONS AND ORDERS BELOW ...........c.cccccssssessscecssescasscesceseeeesseses l

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.......... l

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APPENDIX

CIRCUIT COURT ORDER (09/05/2001) .......cccseccscecececcececeeseeees la

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TARA scsnesisanitiiessheanieiacnsinsgaieenenn 30a

TABLE OF AUTHORITIES

Federal Cases

BELL V. BURSON, 402 U.S. 535 (1971).........ccccccceceseseseee 8, 9, 10, 16

CALIFANO V. BOLES, 443 U.S. 282, 283-85 (1979).........ccccccscsesee. 12

CALIFORNIA DEPT. OF CORRECTIONS V. MORALES, 514 U.S. 499,

ERATE eh Ne RRO RN 18

CLEVELAND BOARD OF EDUCATION V. LAFLEUR, 414 U.S. 632

SERPS ai a I ae Tone an 8, 10

COMMUNIST PARTY OF U.S. V. SUBVERSIVE ACTIVITIES CONTROL

Beg Me WR, B, GB, BF CBA Y an ccccenccacesecsesesossvesecnsensasiesennenennis 21

CUMMINGS V. MISSOURI, 71 U.S. (4 WALL) 277, 320-22 (1866)..19

DELONG V. DEPT. OF HEALTH & HUMAN SERVICES, 264 F.3D 1334

|. aaa PASSIM

DEVEAU V. BRAISTED, 363 U.S. 144, 160 (1960) ooccccccccccssssssseeee. 18

DOE I Vv. OTTE, 259 F.3D 979, 982 (9TH CIR. 2001), CERT.

GRANTED, __ U.S. ___, 70 U.S.L.W. 3374, 3514.........-00.-.-. 16

EASTERN ENTERPRISES V. APFEL, 524 U.S. 498, 547-49 (1998) 17,

18, 24, 25

EDWARD J. DEBANTOLO CoRP. V. FLA. GULF COAST BLDG &

CONSTRUCTION TRADES COUNCIL, 485 U.S. 568, 575 (U.S.

SUIT Attbssilinsiliephabsscsvashtinsastibibcansssienschetbdiisesitieastaneadsenssmnossenctiisninies 26

EX PARTE GARLAND, 71 U.S. (4 WALL) 333 (1866) ..........0.0.000..- 19

FEWQUAY V. PAGE, 682 F.SUPP. 1195 (S.D.FLA. 1987), AFF'D,

896 F.2D 568 (LITH CIR. 1990)...........ccscsccssssecessssssssesecees 7, 8, 16

GURMANKIN V. COSTANZO, 556 F.2D 184, 187 (3D Cir. 1984)....14

HUGHES AIRCRAFT CO. V. U.S. EX REL. SCHUMACHER, 520 U.S.

sR ie a aA Rens Nee oe 24

KAISER ALUMINUM & CHEM. CORP. V. BONJORNO, 494 U.S. 827,

SEINE Saindiactsdnliilendticicddiah dotasetsiptinnshcntinsencindbeieaiiaamdbiccnsasses 24

LANDRAF V. U.S.I. FILM PRODUCTS, 511 U.S. 244, 266 (1990)..17,

18, 24, 25

MALMED V. THORNBURGH, 621 F.2D 565, 575, 578 (3b Cir. 1980)

sishasiineeeuirunsenneendunsecessssasenuyunednesitebeuncuesescnseshanessneniesneteienanéensntenns 14

MICHAEL H. V. GERALD D., 491 U.S. 110 (1989)....0.............. 14, 15

MOORE V. EAST CLEVELAND, 431 U.S. 494, 542 (1977)......0..0.... 15

MORRISEY V. BREWER, 408 U.S. 471, 482-484 (1972)... 16

NIXON V. ADMIN. OF GENERAL SERVICES, 433 U.S. 425, 473, 474

TIT at slicisitichin tins bsensesptsinhnseishiatetinattiaatacuiatiiainanamdenecenlionieasan 19

SELECTIVE SERVICE SYS. V. MINNESOTA PIRG, 468 U.S. 841, 852

EIT siteapathcneisinll intieebemuctiadtis tests lost tnt scieaciaaie 19, 20

STANLEY V. ILLINOIS, 405 U.S. 645 (1972) .......cccccccssesseeeeee 7, 8, 10

TOLL V. MORENO, 441 U.S. 458, 459 (1979) .o......ccsccccceceseceseceeee 13

TURNER V. DEPT. OF EMPLOYMENT SECURITY, 423 U.S. 44 (1975)

iesacsiainieiernieinieadantdainntiiaientaianaanatedabsclintithdemniiiibiinanlisdeinsnsicbiiniasuneasediiniasnants 8

TURNIPSEED, 219 U.S. 35, 43 (1910) ..........ccccesesescesesceceees 15, 22

U.S. V. BROWN, 381 U.S. 437 (1965)...........cccccceccsesesseee, 19, 20, 21

U.S. V. LOVETT, 328 U.S. 303 (1946) oo.......ccecescsecesessseees 19, 20

U.S. WEST, INC. V. F.C.C., 182 F.3D 1224, 1231 (10TH CIR. 1999)

tases seeaaeighleeiten deeibatdaaeaaalebiindatadinbiaainatba sienna ia Sceadeguoanicaceee a 26

UNITED STATES V. HENDERSON, 482 F.SUPP. 234, 243-44 (D.N.J.

Pai ccntcniscsanaceiiebinaaietinteddateehisa ie Geeta SE a 16

VLANDIS V. KLINE, 412 U.S. 441 (1978) .o..ccccccccsccsesccesescsceees 8, 10

WEINBERGER V. SALFI, 422 U.S. 749 (1975)......c.sccssesssesseee PASSIM

State Cases

BRILEY V. LOUISIANA STATE RACING COMMISSION, 410 SO.2D 802,

805-06 (LA. CT. APP. 1982) 00... ecccccccccsscescsecessesssereecsseeeceeees 14

COMMONWEALTH V. CLAYTON, 684 A.2D 1060 (PA. 1993) fiuiocisinas

setae iia ebaidhindldaiadadatiieihabadiecadtibesi seta 8, 9, 14, 16

FOGT V. OHIO STATE RACING COMMISSION, 210 N.E.2D 730, 733

i Me Pn ae EE eT SOR 14

IN RE ADOPTION OF JONEE, 695 N.Y.S.2D 920 (N.Y. FAM. CT.

“cg, RIT STI LEON ee AY RN 8

IN REJ.A. V. ROSADO, 736 N.E.2D 678 (ILL. APP. CT. 2000)..... 26

JOHNSON, ET AL. V. DEPT. OF HEALTH & HUMAN SERVICES, 86

ESP .B. G01 (AUG. ZB, DOOD) nnnscncenceccnccccsscsnssensseceresesneescens 1

MAHONEY V. BYERS, 48 A.2D 600, 603 (MD. 1946) ..........0....0000. 14

MATTER OF COREY, 184 MISC.2D 437, 466 (N.Y. FAM. CT. 1999)

cinch ncinanitnese eeephbdicetisinasdiabndapiadiaaglaaiiacanienanditasnaepmbidaaadietactiadekie edie 14

MATTER OF JONEE, 181 MISC.2D 822, 828-29 (N.Y. FAM. CT

EE ysiapetuseiidntidebeitipncahcedisiebanedegict Acct. REPEC ENDIL. aa tari iee 6 14

OWENS V. LOUISIANA STATE RACING COMMISSION, 466 SO.2D

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OPINIONS AND ORDERS BELOW

This matter began as an administrative appeal before

the Merit Systems Protection Board (“Board”), filed by the

Petitioner, Lois Delong, after her employment was terminated

by the Indian Health Service, a Division of the Department of

Health and Human Services (“Agency”). The Board's Initial

Decision is contained in Delong v. Dept. of Health & Human

Services, No. DE-0752-99-0299-I-1 (Merit Sys.Prot.Bd. Dec. 13,

1999). The Board’s subsequent final decision is reported in

Johnson, et al. v. Dept. of Health & Human Services, 86

M.S.P.R. 501 (Aug. 23, 2000). The court of appeals decision is

reported in Delong v. Dept. of Health & Human Services, 264

F.3d 1334 (Fed.Cir. 2001). All three decisions are in the

Appendix.

JURISDICTION

The court of appeals’ judgment affirming the Board's

adverse decision was entered on September 5, 2001. The

court of appeals denied Delong’s Petition for Rehearing on

December 21, 2001. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fifth Amendment to the Constitution provides in

relevant part that “No person shall be . . . deprived of life,

liberty, or property, without due process of law.”

2. Article I, Seetion 9, Clause 3 of the Constitution

provides that “No Bill of Attainder or Ex Post Facto law shall

be passed [by Congress].”

3. Section 408 (a)-(b) of the Indian Child Protection and

Family Violence Prevention Act (25 U.S.C. §3207(a)-(b)),

prior to its amendment in 2000, provided as follows:

Se ee,

Character investigations

(a) By Secretary of the Interior and the

Secretary of Health and Human Services

The Secretary and the Secretary of Health and Human

Services shall —

(1) compile a list of all] authorized positions within

their respective departments the duties and responsibilities of

which involve regular contact with, or contro] Over, Indian

children,

(2) conduct an investigation of the character of

each individual who is employed, or is being considered for

(b) Criminal records

eee

based solely on a twenty-five year old conviction for assault.

Delong’s assault conviction stemmed from a fight in which

Delong was involved among Indian and non-Indian students

at the University of South Dakota in 1974, while Delong was a

student there. Delong pled guilty and served her sentence

and has had no legal problems since her college years.

Delong also disclosed the conviction at the time she applied

for employment with the Agency, and was told that it was not

a problem. Thus, as the court of appeals noted, Delong’s

removal was “not based on any alleged misconduct or poor

performance” as a federal employee, Delong, 265 F.3d at 1337.

Instead, the Agency felt compelled to terminate Delong’s

employment because it believed the provisions of 25 U.S.C.

§3207(a)-(b) required it.

The Agency first proposed terminating Delong’s

employment in a letter dated April 19, 1999, contending that

the 1974 assault conviction required her removal under

§3207. Delong responded in writing to the proposed

termination on April 26, 1999. In her response, Delong

submitted extensive evidence from the Native American

community whom the Agency serves which overwhelmingly

supported her continued employment, and which praised her

efforts in helping Native children and the community.

Testimonials from Delong’s former colleagues and

supervisors described at length her vigorous commitment to

and advocacy on behalf of the community in which she

worked. The Agency did not dispute that, as a substance

abuse counselor, Delong had garnered the trust, respect and

admiration of high-risk Indian youth. She had created and

implemented special substance abuse prevention activities

for various Indian communities in New Mexico, devoting

countless hours of her personal time after work and on

weekends to serving those in need. Several letters submitted

on her behalf noted that the termination of Delong’s

employment would constitute a significant loss to both the

Native community and the Agency itself. There was no

evidence that Delong actually posed any threat to the Native

American children she worked with. In fact, the evidence

showed that Delong actually benefited and helped the

children who came under her charge.

The Agency refused to even consider the evidence Delong

submitted to refute the charge that she posed a threat to

Native American children because of the old assault

conviction. Instead, the Agericy terminated Delong’s

employment on June 4, 1999, contending that §3207

mandated per se her removal because of the past conviction,

regardless of any other evidence or mitigating circumstances.

Delong filed a timely appeal with the Board on December 13,

1999. An Administrative Law Judge (“AJ”) reversed the

Agency’s action. Delong v. Dept. of Health & Human

Services, No. DE-0752-99-0299-I-1 (Merit Sys.Prot.Bd. Dec. 13,

1999)(“Initial Decision”)(Appendix, p. 30a). The AJ noted

that Delong did not dispute that her position was covered by

the Act or that her assault conviction violated the minimum

standards of character set forth in the Act. Id., slip op. at 4.

However, the AJ found that there was no language in

§3207(a) or (b) which expressly mandated the removal ofa

covered federal employee, or which prohibited the Agency

from “considering extenuating and mitigating circumstances

in weighing the appropriateness of a disciplinary penalty.”

Id. at 4. The AJ ruled that while Congress intended to bar

new appointments of individuals convicted of the covered

offenses, the statute could still be construed “as suitability

legislation which is solely prospective in nature” and that

“there is an easily drawn distinction to be made between

mere applicants for positions and current employees who

possess tenure and status.” Slip op. at 5, n.2. The AJ

reasoned, “if Congress had intended that all current Federal

employees possessing convictions for such offenses were to

be removed, it would have undoubtedly enacted legislation

Stating just that.” Jd. at 5. As concerned Delong’s case in

particular, the AJ found that “the Agency erred in applying its

per se removal rule to [Delong], a current employee with a

Single assault conviction in the distant past. Furthermore,

relying as the Agency did on its per se rule, it has presented

no evidence whatsoever concerning the appellant’s actual

suitability or eligibility to work with Indian children. Id. The

AJ found that the Agency's failure to present such evidence

was “most likely attributable to the fact that there is none.”

Id. Therefore, the AJ concluded because the Agency had not

considered Ms. Delong’s actual suitability for work with

Indian children, her removal could not be sustained. Id. at 5.

The AJ then determined that HHS had failed to

demonstrate that Delong’s removal “promoted the efficiency

of the service,” as required by 5 U.S.C. §7513(a)(1994).

Specifically, the AJ determined that the nature of Ms.

Delong’s crime, the fact that it occurred twenty-five years ago

and stemmed from a campus fight between Indians and non-

Indians, the evidence of Ms. Delong’s rehabilitation, and her

ten years of service without incident demonstrated that she

did not pose a threat to Indian children. Id. at 6-7. The AJ

therefore concluded that Ms. Delong’s removal would net

further the Act’s purpose of protecting Indian children from

abuse, and reversed HHS’s removal of Delong. Id. at 7.

The Agency petitioned the full Board for review of the

Initial Decision. The Board disagreed with the AJ’s

interpretation of the Act and reversed the Initial Decision.

Delong, 86 M.S.P.B. 501 (Aug. 23, 2000). The Board rejected

the distinction drawn in the Initial Decision between current

and prospective employees, and interpreted the statute as

mandating, without exception, the removal of current

employees who are employed in a position covered by

§3207(a) and were convicted of enumerated crimes, even

those, like Delong, whose crime had occurred in the distant

past. The Board believed that its construction of the statute

was consistent with the Congressional findings set forth in 25

U.S.C. §3201, including the findings that “multiple incidents of

sexual abuse of Indian children had been perpetrated by

Federal employees” and that “Federal background

investigations of Federal employees who care for Indian

children had been deficient.” Jd. at 508 (citing 25 U.S.C.

§3201(a)(1)(C), (D)). Because there was no question that

Delong was employed in a position covered by §3207(a) or

that she had been convicted of a crime enumerated in

§3207(b), the Board concluded that HHS was required by

§3207 to remove her from her position. The Board also

determined that Delong’s removal promoted the efficiency of

the service, as required by 5 U.S.C. §7513(a). Id. at 509. The

Board reasoned that §3207 itself creates a presumption of

nexus between an employee’s past conviction and the

employee’s continued service in a position covered by the

Act.

Delong appealed the Board’s decision to the United

States Court of Appeals for the Federal Circuit, which had

jurisdiction under 28 U.S.C. §1295(a)(9). The court of

punish conduct which occurred prior to the Statute’s

enactment.

Federal Employee, Based Only On a Twenty-Five Year

Old Misdemeanor Assault Conviction.

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rehabilitation following the crime and other mitigating

circumstances. The court of appeals accepted the Board's

interpretation of §3207, and held that the irrebuttable

presumption that Delong was unfit for continued

employment did not deprive Delong of liberty or property

without due process of law. Delong, 264 F.3d at 1341-1343.

The court of appeals’ decision directly conflicts with the

decisions of two other federal Courts in the Ninth and

Eleventh Circuits.

First, in Peterson v. Dept. of Health & Human

Services, No. A98-0264-CV (D. Alaska Sept. 27, 2000), the

United States District Court held that $3207(b) created an

impermissible permanently irrebuttable presumption because

it “assumes that any person convicted of any crime against a

person, regardless of rehabilitation, the remoteness of the

act, or other mitigating factors, is unfit to work in a position

where thai individual would have contact with or control

over Indian children” when such a presumption is not

necessarily or universally true. Peterson, slip op. at 18-19.

Peterson held that §3207(b) thus deprived the federal

employee of due process under a line of this Court’s cases,

beginning with Stanley v. Illinois, 405 U.S. 645 (1972). Id. at

17-18. .

Second, in Fewquay v. Page, 682 F.Supp. 1195

(S.D.Fla. 1987), aff'd, 896 F.2d 558 (11" Cir. 1990)(Table), the

Court held that a Florida statute nearly identical to §3207

deprived an employee of the State Health and Rehabilitative

Service (“HRS”) of procedural due process because the

statute created an irrebuttable presumption that a person

employed as a group treatment leader was unfit to work with

children, simply because he had been convicted of robbery

twice when he was nineteen years old. 682 F.Supp. at 1198-

99. Fewquay noted that the Plaintiff received no hearing

before or after his termination. “The only process he was

given was a hearing which was limited to determining

whether or not the Plaintiff had, in fact, been convicted of the

two robberies. ...” Fewquay, 682 F.Supp. at 1197. The

Court also found it troubling that the statute “provides no

exceptions for those [state empioyees} who have good

records . . . [and]J[iJt is a blanket exclusion for a group of

people forever from positions of special trust or

responsibility within HRS.” Jd. Fewquay ruled that the

Florida statute created a disfavored irrebuttable presumption

and rejected fundamental concepts germane to the justice

Court’s decisions Striking down Statutory irrebuttable

presumptions on due process grounds. See eg., Bell vy.

Burson, 402 U.S. 535 (1971)(Invalidating a Georgia statute

Providing that if an uninsured motorist was involved in an

damages Claimed, his driver’s license must be suspended

without any hearing on the question of fault or

responsibility); Turner v. Dept. of Employment Security, 423

U.S. 44 (1975)(striking down statute that makes pregnant

women ineligible for unemployment benefits from 12 weeks

before until six weeks after the date of childbirth); Cleveland

Board of Education v. LaFleur, 414 U.S. 632 (1974)(Striking

down mandatory maternity leave rule which presumed that

mothers were unfit to resume work); Vlandis y. Kline, 412

US. 441 (1973)(Striking down Statutory presumption

regarding student’s residency on due process grounds); and

Stanley v. Illinois, 405 U.S. 645 (1972)(Striking down a

Statutory presumption that all unmarried fathers are

unqualified to raise their children).

The court of appeals’ decision also directly conflicts

with the Supreme Court of Pennsylvania’s decision in

without the licensee having the opportunity to present

medical evidence in an effort to establish actual fitness,

violates due process. Citing to Bell, 402 U.S. at 542, Clayton

noted that “[djue process requires not just any ‘hearing’ but

an ‘appropriate’ hearing.” Although the regulation provided

for a de novo hearing at which the driver “could present

evidence to rebut the fact that he had a seizure,” the court

ruled that:

it cannot be gainsaid that any “meaningful”

opportunity to be heard would here require

that the licensee be permitted to present

objections, not to the conclusion that he had

suffered an epileptic seizure, but rather to the

presumption of competency to drive. While

[the driver] indeed had a forum in which to

assert his claim that he was competent to

drive, that forum was rendered meaningless as

a result of the irrebuttable presumption of [the

regulation] since under that regulation, the

recall of Appellee’s license was a foregone

conclusion. Such a meaningless hearing

certainly does not comport with even the

minimal standards afforded under due

process.

Clayton, 630 A.2d at 1065.

The court added that since competency to drive was “the

paramount factor behind the . . . regulations, any hearing

which eliminates consideration of that very factor is violative

of due process.” Id.

This Court’s cases, relied on in Fewquay, Peterson

and Clayton, embody the general rule that, in cases where

individual liberty or property interests are implicated, state

concerns for administrative convenience and efficiency are

not sufficient to deny an individualized hearing. In Bell, the

Court stated that “since the statutory scheme makes liability

an important factor in the State’s determination to deprive an

individual of his license, the State may not, consistently with

due process, eliminate consideration of that factor in _

hearing.” Bell, 402 U.S. at 541. Significantly, the Court noted

that “continued possession [of a license] may be essential in

the pursuit of a livelihood” and “thus involves state action

that adjudicates important interests of the licensees.” Id. at

539. Accordingly, the Court ruled that the “additional

expense occasioned by [an] expanded hearing [is] not

sufficient to withstand” the constitutional requirement of due

process. Jd. at 540. In Stanley, the Court stated that even

given proper state ends, “the Constitution recognizes higher

values than speed and efficiency.” See Stanley, 405 U.S. at

656. The Court relied on this proposition in LaFleur, 414 U.S.

at 646-647 and Viandis, 412 U.S. at 451. In Vlandis, the Court

expressly ruled that:

The State’s interest in administrative ease and

certainty cannot, in and of itself, save the

conclusive presumption from invalidity under

_ the Due Process Clause where there are other

reasonable and _ practicable means of

establishing the pertinent facts on which the

State’s objective is premised.

Vlandis, 412 U.S. at 451.

Fewquay, Peterson, and Clayton all correctly

interpreted the Court’s cases striking down similar Statutory

irrebuttable presumptions. The court of appeals’ contrary

decision requires this Court to intervene and resolve the

conflict.

The court of appeals’ decision also conflicts with this

Court’s own decisions Striking down irrebuttable

presumptions. The court of appeals determined that Delong’s

due process rights were controlled by this Court's analysis in

Weinberger v. Salfi, 422 U.S. 749 (1975). In essence, the

court of appeals held that under Salfi, a statute which creates

an irrebuttable presumption does not deprive a person of

liberty or property without due process of law as long as it

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“does not abridge a fundamental right or discriminate against

a suspect class” and as long as the statute “bears a rational

relation to a legitimate legislative goal and is free from

invidious discrimination.” 264 F.3d at 1341. Implicit in the

court of appeals’ interpretation of Salfi is the remarkable

proposition that as long as it satisfies the foregoing standard,

Congress may define and limit the process to which a person

is due (i.e., limit the evidence which a person may present in

defense of her liberty or property).

In other words, according to the court of appeals,

even where a person has a recognized liberty or property

interest, Congress can, with impunity, create an imprecise

bright line rule and in essence terminate a contractual

property right or liberty interest, as long as “Congress, its

concern having been reasonably aroused by the possibility of

an abuse which it legitimately desired to avoid, could

rationally have concluded both that a particular limitation

would protect against its occurrence, and that the expense

and other difficulties of individual determination justified the

inherent imprecision of a prophylactic rule.” Id. at 1343,

quoting Salfi, 422 U.S. at 777. The court of appeals’ extension

of Salfi brings it into direct conflict with this Courts’ other

decisions in Bell, Stanley, Vlandis, and their progeny, supra.

The Petition should be granted to determine where the line

between Salfi and this Court’s other decisions invalidating

irrebuttable presumptions should be drawn.

The court of appeals correctly concluded that

Congress’ creation of minimum standards of character for

those who have regular contact with Indian children “is

rationally related to the government's interest in protecting

those children from abuse.” Jd. The court ran astray,

however, when it determined that Congress could also

legislatively determine that persons who have been convicted

of certain enumerated crimes do not meet the minimum

standards of character, and foreclose that person from

presenting evidence to rebut the presumption that he in fact

poses no threat to Indian children. That such a scheme

violates due process is precisely the point of Vlandis, Stanley

and their progeny.

Congress’ “prophylactic rule” under Delong’s

circumstances cannot be justified because, unlike Salfi,

Congress is not attempting to create eligibility classifications

for social security benefits which, by definition, involves

millions of claimants applying for limited welfare benefits. In

such cases Congress can, undoubtedly, make a substantive

policy decision that “limited resources would not be well

spent in making individual [eligibility] determinations.” Salfi,

422 US. at 784. “The Constitution does not preclude such

policy choices as a price for conducting programs for the

distribution of social insurance benefits.” Id., accord,

Califano v. Boles, 443 US. 282, 283-85 (1979). This is

because “a non-contractual claim to receive funds from the

public treasury enjoys no constitutionally protected status.”

Id. at 772. But the rationale underlying Salfi cannot support

the court of appeals’ decision in Delong’s case. Congress’

with the Statutory irrebuttable presumption in Vilandis.

“Unlike the Statutory scheme in Vlandis, the Social Security

Act does not purport to speak in terms of the bona fides of

the parties to a Marriage, but then make plainly relevant

evidence of such bona fides inadmissible.” Salfi, 422 U.S. at

Se Oe ee ae eo ee ol

772. Thus, Salfi limited Viandis “to those situations in which

a state purports to be concerned with domicile, but at the

same time denies to one seeking to meet its test of domicile

the opportunity to show factors clearly bearing on that issue.”

Toll v. Moreno, 441 U.S. 458, 459 (1979).

The court of appeals’ interpretation of §3207 clearly

conflicts with the foregoing analysis of Viandis and cases like

it. In enacting the Indian Child Protection and Family

Violence Prevention Act, Congress was concerned with

protecting Indian children from abuse by federal employees.

The minimum standards of character under §3207 are aimed

at reducing the incidence of sexual abuse of children by

federal employees in Indian Country, 25 USC.

§3201(a)(1)(C)-(D), and ensuring, to the greatest extent

possible, that persons who pose a threat to Indian children

would not be employed in a position where they would have

“regular contact with, or control over, Indian children.” 25

U.S.C. §3207(a)(1). Thus, the Act clearly speaks in terms of

protecting Indian children from employees who might

sexually abuse them or who pose a threat to their safety. But

the irrebuttable presumption created by §3207(b), that

persons convicted of certain enumerated crimes are

automatically labeled sexual predators or threats to Indian

children without giving them the right to present evidence

that they are not, runs afoul of Viandis because it makes

“plainly relevant evidence” that the person does not pose a

threat to Indian children (despite the conviction)

inadmissible. Salfi, 422 U.S. at 772. In such cases, the statute

cannot be disposed of as a matter of substantive due process.

To do so all but emasculates the holdings in Viandis, Stanley

and cases like them striking down irrebuttable presumptions

on procedural due process grounds. The Court should grant

the Petition to clarify the conflict created by the lower

Court’s decision and determine what, if anything, remains of

Viandis and its progeny.

The Court should also grant the Petition to resolve the

important question of whether statutes, which create

irrebuttable presumptions, should be adjudged under

issue, and lower courts have reached inconsistent

decision in Michael H. vy, Gerald D., 491 U.S. 110 (1989)

reflects a split in the Court, but nevertheless indicates that

process principles. Justice Scalia’s plurality opinion indicates

that irrebuttable presumptions in statutes should be adjudged

under substantive due process principles, and that cases like

Stanley and Vilandis “do not... rest upon procedural due

process,” 491 U.S. at 120 (emphasis original). Thus, Justice

Scalia is of the opinion that:

Our irrebuttable presuinption cases must

ultimately be analyzed as calling into question

— —--

' See e.g., Gurmankin v. Costanzo, 556 F.2d 184, 187 (3d Cir. 1984 (school

district policy denying blind persons opportunity to take ifyi

teachers exam and demonstrate competency constituted unconstitutional

irrebuttable presumption); Matter of Jonee, 181 Misc.2d 822, 828-29 (N.Y.

Fam. Ct. 1999)(inability to prove fitness under statute automatically

disqualifying convicts from adopting children rendered statute

to governmental interest); Briley v. Louisiana State Racing Commission,

410 So.2d 802, 805-06 (La. Ct. App. 1982)(same).

Be Ron ede @ ue

OF Wd Mean Spade BR Ber pe &

not the adequacy of procedures but — like our

cases involving classifications framed in other

terms — the adequacy of the fit between the

classification and the policy that the

classification serves.

491 US. at 121 (citations and quotations omitted).

On the other hand, the dissent in Michael H. pointed

out that “[flive Justices agree that the flaw inhering in a

conclusive presumption that terminates a constitutionally

protected interest without any hearing whatsoever is a

procedural one.” 491 US. at 136 (Brennan, J.

dissenting)(emphasis original) citing 491 U.S. at 153 (White, J.

dissenting), and 491 U.S. at 132 (Stevens, J. concurring)."

Justice White’s dissent was even more direct, stating

emphatically that a statutory conclusive presumption

deprives a potential parent of liberty without procedural due

process when it refuses him the opportunity to rebut a

presumption that he is not a child’s natural parent because he

was not living with or married to the child’s mother at the

time of conception. 491 U.S. at 160. In such cases, “[h]e has,

most definitely . . . been denied any real opportunity to be

heard .. . based on the conclusive presumption ....” Jd. at

161. In Justice White’s view, “[t]he emphasis of the Due

Process Clause is on ‘process’.” Id. at 163 quoting Moore v.

East Cleveland, 431 U.S. 494, 542 (1977)( White, J. dissenting);

accord, Mobile, J & K.C.R.. v. Turnipseed, 219 U.S. 35, 43

(1910)(quoted infra, p. 22). The Court should grant the

Petition to resolve this important question.’

* The confusion engendered by the Courts’ divergence of view on this issue

may have contributed to the court of appeals’ mischaracterization of the

Petitioner's due process arguments as being violative of substantive due

process only. Delong clearly argued, in her briefs at oral argument, and on

her Petition for Rehearing, that the irrebuttable presumption in §3207(b)

violated her procedural due process rights. One could not garner this

conclusion from the court of appeals opinion, see 264 F.3d at 1341, but the

argument was clearly made.

* Petitioner suggests that the key to harmonizing Sa/fi, which analyzes

statutes creating classifications (or conclusive presumptions concerning

eligibility) through the substantive due process lens, and Stanley and its

Without question, Delong had a property interest, not

to mention a ten-year investment, in her government

employment. Delong, 264 F.3d at 1341. She also had an

important liberty interest at stake, the right to be free of the

stigma of the 1974 assault conviction, a concept embodied in

this nation’s traditional regard for rehabilitation, penitence

and the right to work in a chosen profession after a debt to

society has been paid. Fewquay, supra, 682 F.Supp. at 1198-

99; see Morrisey v. Brewer, 408 U.S. 471, 482-484

(1972)(discussing both parolee’s interest in continued liberty

and in becoming a responsible member of society, and

society's interest in restoring parolees to a normal and useful

life and treating parolees fairly in order to enhance the

chance of rehabilitation); United States v. Henderson, 482

F.Supp. 234, 243-44 (D.N.J. 1979) (noting the inequity of

allowing one’s past criminal record to create obstacles to

gainful employment despite ex-convicts showing of complete

rehabilitation); Doe I v. Otte, 259 F.3d 979, 982 (9" Cir.

2001)(indicating that an ex-convict’s interest in rehabilitation

and overcoming the stigma of a past conviction is part of a

fundamental liberty interest), cert. granted, __ US. —

U.S.L.W. 3374, 3514 (2002). Congress may not deprive Delong

progeny which focuses on whether an irrebuttable presumption deprives a

person of procedural due process, is in the personal interest which the

Statute affects. In cases that involve social welfare legislation that seeks to

distribute limited benefits to millions of people, i.e., a “noncontractual

claim to receive funds from the public treasury,” Salfi 422 U.S. at 771-72, .

the conclusive presumption as to a person's eligibility for the benefits is

properly « \judged under substantive due process principles. On the other ;

hand, where a statute, either on its face or as applied, employs an

rebuttable presumption to deprive a person of a contractual property ;

right or an important liberty interest, then the focus Should be on

procedural due process, that is, whether the hearing is meaningful and

whether the person should be accorded a fair opportunity to rebut the

presumption which, if not rebutted with admissible evidence, would result F

in the extinguishments of his liberty or property. Bell v. Burson, 402 U.S.

535, 542 (1971); Commonwealth of Pennsylvania, supra, 684 A.2d at 1065.

The court of appeals’ reliance on Salfi to uphold the irrebuttable

presumption that Delong poses a threat to Indian children based only on a

twenty-five year old assault conviction, and which forecloses her right to

present evidence that she in fact does not pose a threat, extends Salfi into

a realm where it does not belong, and brings Salfi into direct conflict with

this Court's other decisions striking down irrebuttable presumptions.

—

ey ee eee

of these important interests through an irrebuttable

presumption that brands her forever as a danger to children,

without affording her a meaningful opportunity to rebut the

presumed fact.

Finally, because the court of appeals upheld the

constitutionality of §3207 regardless of how far into the

distant past it reaches, the Petitioner submits that the severe

retrospective effect of §3207 violates substantive due

process. See Eastern Enterprises v. Apfel, 524 U.S. 498, 547-

49 (1998)(Kennedy, J. concurring in the judgment and

dissenting in part). The Court should grant the Petition to

consider this important question. ,

Il. The Court of Appeals’ Interpretation of Section

3207(a)-(b) to Require the Termination of Government

Employment, Based on an Assault Conviction which

Occurred Some Sixteen Years Prior to the Statute’s

Passage, is Unconstitutional Under the Ex Post Facto

and/or Bill of Attainder Clause.

The court of appeals held that §3207(b) applied

retroactively to covered crimes that occurred prior to the

passage of the Act, and required that Delong’s employment be

terminated based on her past act. 264 F.3d at 1339-41. This

Court should grant the Petition to resolve the important

question whether §3207(a)-(b), on its face or as interpreted, is

an unconstitutional Ex Post Facto law or Bill of Attainder,

prohibited under Article I, Section 9, clause 3 of the

Constitution.

The Constitution expresses concern with retroactive

laws through several of its provisions, including the Ex Post

Facto clause, Eastern Enterprises, supra, 524 U.S. at 533,

and the Bill of Attainder clause, Landraf v. U.S.I. Film

Products, 511 U.S. 244, 266 (1990). Every statute which

“takes away or impairs the vested rights acquired under

existing laws, or creates a new obligation, imposes a new

duty, or attaches a new disability in respect to transactions or

considerations already past, must be deemed retrospective,”

Landraf, 511 U.S. at 269 (citations and quotations omitted).

Such laws are immediately suspect as being constitutionally

infirm. Id.

“The mark of an Ex Post Facto law is the imposition

of what can fairly be designated punishment for past acts.”

Id. at 281 quoting DeVeau v. Braisted, 363 U.S. 144, 160

(1960). In Eastern Enterprises, supra, the Court held that

the provisions of 26 U.S.C. §9706(a)(3), part of the Coal

Industry Retiree Health Benefit Act of 1992, violated the

Constitution because of its severe imposition of retroactive

liability on Eastern Enterprises. Although the plurality

opined that the statute violated the Takings clause, in a

concurring opinion, Justice Thomas expressed the view that

a civil statute which imposed retroactive liability might more

appropriately be judged under the Ex Post Facto clause,

which “even more clearly reflects the principle that

retrospective laws are, indeed, generally unjust.” 524 U.S. at

538. Thus, in an appropriate case, a civil law that imposes

retrospective liability and that passes muster under the

Takings clause (and presumably the Due Process clause)

might nevertheless be unconstitutional under the Ex Post

Facto clause.” Id. at 538-39. Delong respectfully submits that

this is such a case. Section 3207 , though a civil law, is clearly

_ punitive in that it results in the termination of Delong’s ten-

year term of employment with the Agency, and its effect is

clearly retrospective because the termination is based on

conduct that occurred some sixteen years prior to the

passage of §3207. The effect of §3207(b) is to inflict an

additional punishment on Delong (termination of her

government employment) for her past crime, a punitive

measure that the law did not impose at the time of her

conviction. The law “forbids the application of any new

punitive measure to a crime already consummated.”

California Dept. of Corrections v, Morales, 514 U.S. 499, 505

(1995). Therefore, the Court Should grant the Petition to

determine whether, because of its punitive effect on tenured

government employees and because of its severely

retrospective reach to past crimes, §3207 violates the Ex Post

Facto clause.

Rola es pTLA SASS CI A ET Oe

The Court should also grant the Petition to determine

whether §3207, as interpreted by the court of appeals, is an

unconstitutional Bill of Attainder. This Court has

consistently held that statutes which impose permanent bars

to employment constitute punishment for purposes of the Bill

of Attainder clause. Cummings v. Missouri, 71 U.S. (4 Wall)

277, 320-22 (1866); Ex Parte Garland, 71 U.S. (4 Wall) 333

(1866); U.S. v. Lovett, 328 U.S. 303 (1946); U.S. v. Brown, 381

U.S. 437 (1965); see Nixon v. Admin. of General Services, 433

U.S. 425, 473, 474 (1977)(legislative enactments barring

designated individuals or groups from participation in

specified employments or vocations are impermissible under

the Bill of Attainder clause); see also Selective Service Sys. v.

Minnesota PIRG, 468 U.S. 841, 852 (1984)(“In our own

country, the list of punishments forbidden by the Bill of

Attainder clause has expanded to include legislative bars to

participation by individuals or groups in_ specific

employments and professions”).

In U.S. v. Brown, supra, the Court held that a statute

that made it a crime for a member of the Communist Party to

serve as an officer or employee of a labor union (with limited

exceptions), was an unconstitutional Bill of Attainder. 31

U.S. at 439-40: The Court explained that “the Bill of Attainder

clause was intended not as a narrow, technical .. .

prohibition, but rather as an implementation of the

separation of powers, a general safeguard against legislative

exercise of the judicial function, or more simply, trial by

legislature.” Id. at 442. The Bill of Attainder clause “also

reflected the Framers’ belief that the Legislative Branch is not

so well-suited as politically independent judges and juries to

the task of ruling upon the blame-worthiness of, and levying

appropriate punishment upon, specific persons.” Id. at 445:

Legislative Acts, no matter what their form,

that apply either to named individuals or to

easily ascertainable members of a group in

such a way as to inflict punishment on them

without a judicial trial are bills of attainder

prohibited by the Constitution .... This

permanent proscription from any opportunity

to serve the government is punishment, and of

a most severe type.

at 448-49.

In U.S. v. Lovett, supra, the Court struck down as a

Bill or Attainder a statute labeling three named individuals as

subversive, and effectively barring them from government

employment forever, because Congress deemed them guilty

of subversive activities and therefore unfit to hold a federal

job. 339 U.S. at 313-14; see Brown, 381 U.S. at 460-61

(discussing Lovett). Similar statutes were struck down in

Cummings (post-civil war law that barred persons from

various professions unless they swore an oath that they had

never served the Confederacy), and Garland (striking down

similar oath requirement for practice of law).

In both Cummings and Garland, supra, the persons

in the group disqualified were defined entirely by past acts

which they could not reverse. Like the laws at issue in the

foregoing cases, §3207(b), as interpreted by the court-of

appeals, singles out a group of people (those convicted of

enumerated past crimes) and condemns them forever as

being unfit for federal employment. The result in Delong’s

case is particularly harsh because Congress condemned her

and brought about the termination of her employment after

she had faithfully served Indian children as a substance abuse

counselor for over ten years, a condemnation that was based

only, on a twenty-five year old misdemeanor assault

conviction, an act only remotely related, if at all, to her actual

fitness to work as a substance abuse counselor around

children. Such an act constitutes a Bill of Attainder whether

the condemned person “is called by name or described in

terms of conduct which, because it is past conduct, operates

only as a designation of particular persons. When past

activity serves as a point of reference for the ascertainment

of particular persons ineluctably designated by the legislature

for punishment, the Act may be an attainder.” Selective

Service System, 468 U.S. at 847 (1984) quoting Communist

Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1,

86, 87 (1961), citing Cummings, (4 Wall) at 324.

Section 3207(b) is no different in its application than

the statutes held invalid in Lovett and Brown, supra. What

the Court said in Brown is particularly applicable here:

We do not hold today that Congress cannot

weed dangerous persons out of the labor

movement, any more than this court held in

Lovett, that subversives must be permitted to

hold sensitive government positions. Rather,

we make again the point made in Lovett: that

Congress must accomplish such results by

rules of general applicability. It cannot specify

the people upon whom the sanction it

prescribes is to be levied. Under our

Constitution, Congress possesses full

legislative authority, but the task of

adjudication must be left to other tribunals.

381 U.S. at 461.

The Court’s ruling in this regard is related to the

principles underlying procedural due process and a historic

disdain for congressionally created _ irrebuttable

presumptions, which operate to deprive one of government

employment or a protected property or liberty interest

without a fair trial:

We deal here with the reputation of men and

their right to work—things more precious than

property itself. We have here a system where

a government with all its power and authority

condemns a man to a suspect class and the

outer darkness without the rudiments of a fair

trial... It deprives men of “liberty” within the

meaning of the Fifth Amendment, for one of

man’s most precious liberties is his right to

work. When a man is deprived of that “liberty”

without a fair trial, he is denied due process.

If he were condemned by Congress and made

ineligible for government employment, he

would suffer a bill of attainder, outlawed by

the Constitution.

Peters v. Hobby, 349 US. 331, 351-52 (1955)(Douglass, J.

concurring).

The _ principles underlying the constitutional

prohibition of Bills of Attainder as regards irrebuttable

Statutory presumptions are intimately related to principles of

due process of law and the Separation of powers. Legislative

presumptions go too far when they intrude upon the

evidentiary process, and thereby deprive individuals of their

right not only to a fair adjudication, but the right also to

disprove the stigma that the legislature has, for whatever

reason, placed on them. In this regard, the Bill of Attainder

Clause and the due process clause are aimed at the same evil:

[A] legislative presumption of one fact from

evidence of another may not constitute a

denial of due process of law ora denial of the

equal protection of the law, it is only essential

that there be some sort of rational connection

between the fact proved and the ultimate fact

presumed, and that the inference of one fact

from proof of another shall not be so

unreasonable as to be a purely arbitrary

mandate. O, it ise of

regulating the presentation of vidence

operate to preclude the party from the ri t to

present his defense to the main fact thus

resumed

Mobile J & KCR y. Turnipseed, 219 USS. 35, 43

(1910)(emphasis added).

The Court should grant the Petition to resolve the

important constitutional question, whether §3207(a)-(b), as

a a i ee a

interpreted by the court of appeals and as applied to

Petitioner Delong, is an unconstitutional Bill of Attainder.

Ill. The Court of Appeals’ Holding that Section

3207(b) Applies Retrospectively to Convictions Which

Occurred Prior to the Enactment of the Statute

Conflicts with the Decisions of this Court Governing

the Retroactivity of Statutes and Requiring that

Statutes be Interpreted to Avoid Constitutional

Problems.

The court of appeals held that the “plain language” of

§3207 reaches an employee’s conduct prior to the statute’s

enactment, and mandates the removal of a covered federal

employee who has been convicted of an enumerated crime,

regardless of how distant in the past the conviction occurred.

264 F.3d at 1339. The court of appeals believed that its

interpretation was mandated by the plain language of

§3207(a)-(b) despite the fact that there is no language

mandating the removal of tenured federal employees whose

conviction occurred long before the Act’s passage.

The language of §3207 is not plain and unambiguous

as the court of appeals believed, and this is best illustrated by

the fact that Administrative Law Judges in four separate

employee appeals to the Board (including Delong),

interpreted §3207 contrary to the court of appeals, finding

“that the plain language of the Act did not mandate the

removals.” Johnson, et al. v. Dept. of Health and Human

Services, 86 M.S.P.B. 501, 504-05 (Aug. 23, 2000) (emphasis

added). The AJ’s decision in Delong reflected his reluctance

to apply §3207 retroactively absent a more specific directive

from Congress, as well as his belief that §3207 should be

construed harmoniously with 5 U.S.C. §7513(a) which

requires that the Agency’s termination of Delong’s

employment be “foz such cause as will promote the efficiency

of the service.” (Text supra, pp. 45). Certiorari should be

granted because the court of appeals’ contrary interpretation

conflicts with the decisions of this Court governing the

. 24

retroactivity of statutes and requiring that statutes be

interpreted to avoid serious constitutional problems.

The cases discussed in Section II, supra, illustrate a

centuries old “singular distrust of retroactive statutes.”

Eastern Enterprises, supra, 524 U.S. at 547 (Kennedy, J.

concurring in the judgment and dissenting in part). The

presumption that laws may not apply retroactively is

grounded in principles of fairness, and finds expression in

several provisions of the Constitution. “[T]he principle that

the legal effect of conduct should ordinarily be assessed

under the law that existed when the conduct took place has

timeless and universal appeal.” Landgraf, supra, 511 U.S. at

265, quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno,

494 U.S. 827, 855 (1990) (Scalia, J. concurring).

Thus, as a general rule, a congressional statute applies

only to conduct occurring after the passage of the statute.

See, e.g., Hughes Aircraft Co. v. U.S. ex rel. Schumacher, 520

U.S. 939, 946 (1997)(time honored presumption against

retroactive application exists unless Congress has manifested

intent to contrary); Landgraf, 511 U.S. at 265 (1994)(there is a

presumption against retroactive legislation deeply rooted in

jurisprudence). This is because the retroactive application of

a Statute is at odds with inherent notions of fairness and

justice and disturbs reasonable expectations. The “distance

into the past” that a statute reaches to impose liability and the

magnitude of that liability “raise substantial questions of

fairness.” Eastern Enterprises, 524 U.S. at 534 (O’Connor, J.

plurality opinion). At some point, the degree of retroactive

effect of a statute renders it unconstitutional. Jd. at 548-49

(Kennedy, J. concurring iri the judgment and dissenting in

part).

This Court has noted that the largest category of cases

in which it has applied the presumption against retroactivity

involve “new provisions affecting contractual or property

rights, matters in which predictability and stability are of

prime importance.” Landgraf, 511 U.S. at 271. The test,

which the Court applies in such cases, is twofold. First, the

Court, determines if “Congress has expressly prescribed the

statute’s reach.” Jd. at 280. When there is no such express

command in the statute, then:

[T]he court must determine whether the new

statute would have retroactive effect, i-e.,

whether it would impair rights a party

possessed when he acted, increase a party’s

liability for past conduct, or impose new

duties with respect to transactions already

completed. If the statute would operate

retroactively, our traditional presumption

teaches that it does not govern absent clear

congressional intent favoring such a result.

Id. at 280.

The court of appeals failed to give §3207 the critical

analysis that this Court demands when a statute’s arguable

effect is to reach conduct in the distant past. This Court

should grant the Petition to determine whether §3207 must be

applied retroactively to effectuate Congress’ intent, or

whether it is susceptible to a reasonable interpretation that

would avoid such a severe retroactive effect, and thereby

avoid the constitutional infirmity inherent in statutes of this

type. See Eastern Enterprises, supra.

There is no clear congressional intent, either in §3207

or any other provision of the Indian Child Protection and

Family Violence Prevention Act, that requires, per se, the

removal of federal employees based on covered crimes that

were committed prior to the Act’s passage. The AJ believed

this to be the case and found no express language mandating

the removal of Delong based on the 1974 conviction.

Petitioner Delong submits that §3407 is susceptible to a

reasonable interpretation alternative to the one given by the

court of appeals, and that is the interpretation given by the AJ

in this case (text supra, pp. 4-5). Section 3207 can reasonably

be interpreted to employ a rebuttable presumption that

tenured employees convicted of past crimes are unfit to work

oe Le eS Pea ee a ae

around Indian children. See In Re J.A. v. Rosado, 736 N.E.2d

678 (Ill. App. Ct. 2000). Such an interpretation would be

consistent with Congress’ intent to protect children from

abuse because it would require covered employees convicted

of past crimes to come forward with evidence to rebut the

presumption that they pose a threat to Indian children

because of their past crime. At the same time, it would

remove the constitutional and retroactivity concerns inherent

in the court of appeals’ analysis, because it would afford

affected employees the right to rebut the legislative change

that they pose a threat to the safety and well being of Indian

children. “When faced with a Statutory interpretation that

would raise serious constitutional problems, the courts will

construe the statute to avoid such problems unless such

construction is plainly contrary to the intent of Congress.”

U.S. West, Inc. v. F.C.C., 182 F.3d 1224, 1231 (10" Cir. 1999)

quoting Edward J. DeBantolo Corp. v. Fla. Gulf Coast Bldg

& Construction Trades Council, 485 U.S. 568, 575 (U.S.

1988). This Court should grant certiorari to determine

whether §3407 is susceptible to a reasonable interpretation

which would avoid the constitutional problems inherent in

retroactive legislation, like this, which reaches far into a

person’s past to impose new liability for conduct which

cannot be undone, and to avoid, if possible, “the unfortunate

result” acknowledged by the court of appeals. Delong, 264

F.3d at 1343.

CONCLUSION

WHEREFORE, Petitioner, Lois Delong, respectfully

requests that this Court GRANT her Petition for a Writ of

Certiorari to the United States Court of Appeals for the

Federal Circuit.

Respectfully submitted this 21" Day of March 2002.

John Fredericks III

Fredericks, Pelcyger & Hester, LLC

1075 South Boulder Road, Suite 305

Louisville, CO 80027

TEL: (303) 673-9600

FAX: (303) 673-9155

Counsel for Petitioner

er EEE eeeeeree_—v_v ————Oeeeeer rh see

00-3449

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

LOIS DELONG,

Petitioner,

Vv.

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Respondent.

September 5, 2001, Decided

COUNSEL:

John Fredericks Ill, Fredericks, Pelcyger & Hester, LLC, of

Louisville, Colorado, argued for petitioner.

Eric J. Nestor, Attorney, Commercial Litigation Branch, Civil

Division, Department of Justice, of Washington, DC, argued

for respondent. With him on the brief were Stuart E. Schiffer,

Acting Assistant Attorney General; David M. Cohen, Director;

and Harold D. Lester, Jr., Assistant Director.

JUDGES:

Before MAYER, Chief Judge, RADER, and SCHALL, Circuit

Judges.

OPINION BY:

SCHALL

OPINION:

SCHALL, Circuit Judge.

Lois Delong petitions for review of the final decision of

the Merit Systems Protection Board ("Board") that sustained

her removal from her position with the Department of Health

and Human Services ("HHS" or "agency") pursuant to 25

U.S.C. § 3207 (1994). Delong v. Dep't of Health & Human

Servs., No. DE-0752-99-0299-I-1 (Merit Sys. Prot. Bd. Aug. 23,

2000) ("Delong"). We affirm.

BACKGROUND

Ms. Delong was employed as a Substance Abuse

Specialist at the Acoma-Canoncito Laguna Service Unit of the

Indian Health Service of HHS in San Fidel, New Mexico. The

Indian Health Service provides health care services, including

rehabilitative services, to American Indians and Alaska

Native Indians. The Acoma-Canoncito Laguna Service Unit

serves Indians in the Albuquerque, New Mexico area. Ms.

Delong's position involved working with adolescents who

were receiving treatrnent for chemical dependency, and she

had regular and unsupervised contact with children.

On April 19, 1999, HHS issued a notice of proposed action

to remove Ms. Delong from her position. The proposed

removal was not based on any alleged misconduct or poor

performance, but was initiated pursuant to the Indian Child

Protection and Family Violence Prevention Act of 1990,

codified at 25 U.S.C. § § 3201-11 (1994) (the "Act").' Section

3207 of the Act sets minimum standards of character for

federal employees whose positions involve regular contact

with Indian children. HHS interpreted § 3207 as requiring it

to remove Ms. Delong from her position because she had

been arrested in 1974, when she was in college, on assault

and battery charges and had pled guilty and been sentenced

on those charges. In response to the proposed removal, Ms.

Delong submitted a letter from her legal representative and

several letters of character reference. Despite the evidence

that Ms. Delong's job performance had been acceptable, HHS

determined that she was not eligible for continued

employment by operation of § 3207.’ HHS therefore removed

her from her position effective June 4, 1999.

II.

Ms. Delong appealed her removal to the Board. In an

initial decision, the Administrative Judge ("AJ") to whom the

case was assigned reversed HHS's action. Delong v. Dep't of

Health & Human Servs., No. DE-0752-99-0299-I-1 (Merit Sys.

Prot. Bd. Dec. 13, 1999) ("Initial Decision"). The AJ noted that

Ms. Delong did not dispute that her position was covered by

the Act or that her assault and battery conviction violated the

minimum standards of character set forth in the Act. Id., slip

op. at 4. However, the AJ declined to interpret the Act as

requiring HHS to remove current employees who have been

convicted of enumerated crimes. Instead, the AJ read the

statute as permitting HHS to "consider[] extenuating and

mitigating circumstances in weighing the appropriateness of

a disciplinary penalty" against a current employee, even

though the statute "clearly bars new appointments .. . of

individuals who have a criminal record that includes an

enumerated offense." Id. Because HHS had not considered

Ms. Delong's actual suitability for work with Indian children,

the AJ determined that her removal should not be sustained.

Id. at 5.

The AJ also determined that HHS had failed to

demonstrate that Ms. Delong's removal "promoted the

efficiency of the service," as required by 5 U.S.C. § 7513(a)

(1994). Specifically, the AJ determined that the nature of Ms.

Delong's crime, the fact that it occurred twenty-five years ago

and stemmed from a campus fight between Indians and non-

Indians, the evidence of Ms. Delong's rehabilitation, and her

ten years of service without incident demonstrated that she

did not pose a threat to Indian children. Id. at 6-7. The AJ

therefore concluded that Ms. Delong's removal would not

further the Act's purpose of protecting Indian children from

abuse. Id. at 7. Accordingly, the AJ reversed HHS's removal

of Ms. Delong.

HHS petitioned the full Board for review of the Initial

Decision. The Board disagreed with the AJ's interpretation of

the Act and reversed the Initial Decision. Delong, slip op. at 2.

The Board rejected the distinction drawn in the Initial

Decision between current and prospective employees, and

interpreted the statute as applying with equal force to

individuals who are employed in a position covered by §

3207(a) and individuals who are being considered for

employment in such a position. Id. at 7. The Board also

determined that the statute does not permit HHS to retain a

current employee who has been found to violate the

minimum standards of character set forth in § 3207(b). Id. at

8. The Board stated that its construction of the statute was

consisient with the Congressional findings set forth in 25

U.S.C. § 3201, including the findings that “multiple incidents

of sexual abuse of Indian children had been perpetrated by

Federal employees" and that "Federal background

investigations of Federal employees who care for Indian

children had been deficient." Id. at 9 (citing 25 USC §

8201(a)(1)(C), (D)). Because there was no question that Ms.

Delong was employed in a position covered by § 3207(a) or

that she had been convicted of a crime enumerated in §

3207(b), the Board concluded that HHS was required by §

3207 to remove her from her position.

The Board also determined that Ms. Delong's removai

Promoted the efficiency of the service, as required by 5

U.S.C. § 7513(a). Id. at 10. The Board reasoned that § 3207

creates a presumption of nexus between an employee's

violation of the Act's minimum standards of character and the

employee's continued service in a position covered by the

Act. Id. Thus, the Board determined that the statute itself

creates "the necessary connection between the employee's

off-duty misconduct and the employee's job-related

responsibilities." Id. (quoting White v. U.S. Postal Serv., 768

F.2d 334, 335-36 (Fed. Cir. 1985)).

The Board also rejected Ms. Delong's arguments that the

penalty of removal was unreasonable and should be

mitigated. Id. at 11. The Board reiterated its determination

that § 3207 "prohibits individuals from holding an

appointment to a covered position if they have been found

guilty of . . . a covered crime." Id. The Board also noted that

HHS had shown that there were no other positions to which

Ms. Delong couid have been reassigned. Id. The Board

therefore determined that HHS was justified in removing Ms.

Delong. Id. Accordingly, it sustained the removal action. Id.

Ms. Delong petitions for review of the Board decision. We

have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (1994).

DISCUSSION

Our scope of review in an appeal from a decision of the

Board is limited. We must affirm the decision unless we find

it to be arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; obtained without

procedures required by law, rule, or regulation having been

followed; or unsupported by substantial evidence. 5 U.S.C. §

7703(c) (1994). Ms. Delong challenges the Board's

interpretation of § 3207. Her challenge raises a question of

law, which we review de novo. See Nebblett v. Office of Pers.

Momt., 237 F.3d 1353, 1356 (Fed. Cir. 2001).

Ms. Delong argues that the Board's interpretation of §

3207 is unconstitutional because it denies her the due process

protections guaranteed by the Fifth Amendment to the United

States Constitution. Specifically, she contends that the

Board's interpretation violates her substantive due process

rights by creating an impermissible irrebuttable presumption

that she is unfit for continued employment because of her

past conviction. Ms. Delong argues that the Board erred in

interpreting § 3207 as applying to current employees whose

criminal conduct occurred prior to the effective date of the

Act because the statute does not contain clear language

demonstrating that Congress intended the Act to have

retroactive effect. She also argues that the statute should be

interpreted as requiring HHS to conduct an individualized

hearing to consider mitigating circumstances when a current

employee is found to violate the minimum standards of

character in the Act.

In response, HHS argues that the Board's interpretation of

§ 3207 accords with the plain language of the Act. HHS

asserts that the statute itself requires it to investigate the

character of current employees and to ensure that all

employees in covered positions meet the minimum standards

of character. With respect to Ms. Delong's substantive due

process argument, HHS argues that the Act's minimum

standards of character bear a rational relationship to a

legitimate government purpose—protecting Indian children

from abuse by federal employees. Therefore, HHS contends,

the Act does not violate Ms. Delong's substantive due process

rights.

For the reasons set forth below, we agree with HHS that

the plain language of § 3207 requires that the agency apply

the Act's minimum standards of character to current

employees and that the agency remove from positions

covered by the Act any employees who fail to meet those

standards. We also agree with HHS that this interpretation of

§ 3207 does not render the Act unconstitutional under the

Due Process Clause of the Fifth Amendment.

Il.

When determining the meaning of a statute, we look first

to the language of the statute itself. Van Wersch v. Dept. of

Health & Human Servs., 197 F.3d 1144, 1148 (Fed. Cir.

1999). "If the language is clear, the plain meaning of the

Statute will be regarded as conclusive." Id.

Section 3207, as in effect at the time of Ms. Delong's

removal, provided in relevant part as follows:

§ 3207. Character Investigations

(a) By Secretary of the Interior and the

Secretary of Health and Human Services

The Secretary [of the Interior} and the

Secretary of Health and Human Services shall-

(1) compile a list of all authorized

positions within their respective departments

the duties and responsibilities of which

involve regular contact with, or control over,

Indian children,

(2) conduct an investigation of the

character of each individual who is employed,

or is being considered for employment, by the

respective Secretary in a position listed

pursuant to paragraph (1), and

(3) prescribe by regulations minimum

standards of character that each of such

individuals must meet to be appointed to such

positions.

(b) Criminal records

The minimum standards of character that

are to be prescribed under this section shall

ensure that none of the individuals appointed

to positions described in subsection (a) of this

section have been found guilty of, or entered a

plea of nolo contendere or guilty to, any

offense under Federal, State, or tribal law

involving crimes of violence; sexual assault,

molestation, exploitation, contact or

prostitution; or crimes against persons.

25 U.S.C. § 3207 (emphases added). The plain language of

the statute demonstrates that it applies to current employees.

Section 3207(a)(2) requires HHS to "conduct an investigation

of each individual who is employed . . . in a [covered]

position." Id. Section 3207(a)(3) requires HHS to "prescribe

by regulations minimum standards of character that each of

such individuals must meet to be appointed to such

positions," and § 3207(b) requires the minimum standards to

"ensure that none of the individuals appointed to [covered]

positions . . . have been found guilty of, or entered a plea of

nolo contendere or guilty to, any [enumerated crime]." Id.

Ms. Delong argues that the "to be appointed to" language

of § 3207(a)(3) and § 3207(b) indicates that the minimum

standards of character apply to prospective employees only.

However, current employees also may be considered to "be

appointed" to their positions. Moreover, the term "such

individuals" in § 3207(a)(3) refers back to the phrase “each

individual who is employed, or is being considered for

employment" in preceding subsection § 3207(a)(2).

The plain language of § 3207 also makes it clear that

enumerated crimes committed prior to its enactment violate

the minimum standards of character. Section 3207(a) requires

the agency to investigate the character of current employees.

Such investigation would not be necessary if an employee's

past conduct were irrelevant to whether that employee meets

the minimum standards of character required by the Act.

Moreover, § 3207(b) requires the agency to "ensure that none

of the individuals appointed to [covered] positions . . . have

been found guilty of . . . [an enumerated crime]." (emphasis

added). This language clearly requires HHS to consider

crimes committed prior to enactment of the Act when

determining whether an employee satisfies the minimum

standards of character.

Our interpretation of § 3207 is reinforced by the findings

and purposes behind the Act, which are set forth in § 3201.

As noted by the Board, one of the findings behind the Act

recognized that "multiple incidents of sexual abuse of

children on Indian reservations have been... perpetrated by

persons employed . . . by the Federal government." 25 U.S. C.

§ 38201(a)(1)(C) (1990). That finding reflects Congress's

concern that current federal employees may pose a threat to

Indian children. Another finding recognized that

"investigations of the background of Federal employees who

care for . . . Indian children are often deficient." Id. §

3201(a)(1)(D). That finding suggests that Congress also was

concerned that some current federal employees might not be

fit for employment in positions covered by the Act due to

their past criminal conduct. Interpreting § 3207 as applying

to current employees and as requiring the consideration of

past criminal conduct also furthers one of the "major goals"

of the Act, "reduc[ing the] incidents . . . of abuse of children. .

. in Indian country," Id. § 3201(a)(2).

Ms. Delong argues that § 3207 does not require HHS to

remove current employees who fail to meet the minimum

standards of character, but instead permits HHS to consider

mitigating circumstances that might establish the employee's

fitness for continued employment in a covered position,

notwithstanding the employee's criminal record. We are

unable to discern any language in § 3207 that supports Ms.

Delong's construction of the statute. Section 3207 (b) requires

HHS to “ensure that none of the individuals appointed to

ee ———eeoOor -

[covered] positions . . . have been found guilty of .. . [an

enumerated crime]." The only way HHS can “ensure" that

current employees meet the minimum standards of character

is to remove employees who fail to meet the standards.

Il.

Interpreting § 3207 as requiring HHS to remove current

employees who violate the Act's minimum standards of

character does not render the statute unconstitutional under

the Due Process Clause of the Fifth Amendment. A federal

employee, as defined in 5 U.S.C. § 7501 (1994), "has a

property right in [her] continued employment." King v.

Alston, 75 F.3d 657, 661 (Fed. Cir. 1996). That property

right entitles the employee to procedural due process

protections under the Fifth Amendment. King v. Erickson,

89 F.3d 1575, 1581 (Fed. Cir. 1996), rev'd on other grounds

sub nom. Lachance v. Erickson, 522 U.S. 262, 139 L. Ed. 2d

695, 118 S. Ct. 753 (1988). "When an agency brings charges

against an employee, compliance with [the procedures of 5

U.S.C. § 7513(b)] satisfies the minimum due process

requirements to which the employee is entitled." Id. Ms.

Delong does not argue that her procedural due process rights

were violated, nor could she. HHS provided her with "at least

30 days' advance written notice . . . stating the reasons for the

proposed action," afforded her "a reasonable time to answer

orally and in writing and to furnish affidavits . . . in support of

the answer," permitted her to be represented by an attorney,

and provided her with "a written decision and the specific

reasons therefore." 5 U.S.C. § 7513(b). Instead, as noted, Ms.

Delong argues that the statute violates her substantive due

process rights by creating an irrebuttable presumption ‘that,

because of her criminal record, she is unfit for service in a

covered position.

In order to evaluate the merits of this argument, we must

determine what level of protection the Constitution provides

to Ms. Delong's property interest in her federal employment.

Ms. Delong asserts that her federal employment is a

fundamental right and that, therefore, § 3207 is subject to

strict scrutiny review. In response, HHS cites Weinberger v.

Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S-Ct. 2457 (1975),

10a

for the proposition that the statute need only be reviewed for

a rational basis. Ms. Delong correctly points out that because

Salfi is a "social welfare classification" case it is not directly

on point with her appeal. However, that does not mean that

we can ignore the Supreme Court's decision in Salfi

altogether, particularly where that decision "explains .. . at

Some length" the Court's prior decisions on the

constitutionality of irrebuttable presumptions. Salfi, 422

U.S. at 768. Salfi indicates that Statutes creating conclusive

presumptions are judged under the Same due process

Standards as other statutes. Id. at 770-72. Where the statute

at issue does not abridge a fundamental right or discriminate

against a suspect class, it is upheld if it "bears .. . [a] rational

relation to a legitimate legislative goal" and is free from

invidious discrimination. Id. at 772.

Ms. Delong has not cited, and we could not uncover, any

case where the Supreme Court has Suggested that federal

employment is a fundamental right, the abridgment of which

must withstand strict Scrutiny under the Due Process Clause.

The closest case cited by Ms. Delong is Cleveland Board of

Education v. LaFleur, 414 U.S. 632, 39 L. Ed. 2d 52, 94 S.

Ct. 791 (1974), where the Court struck down a state law that

required pregnant public school teachers to take unpaid leave

beginning five months before their due dates. The Court

reviewed the statute under a more critical lens than the

rational basis test, requiring the state to ‘Justify the particular

procedures [it had] adopted" and to convince the Court that

the chosen procedures "do not needlessly, arbitrarily, or

Capriciously impinge" on the teachers’ rights. Id. at 640. The

Court did not apply this heightened level of scrutiny because

the teachers had a "fundamental" interest in their

employment, however, but because "the decision whether to

bear... a child" was viewed as a "basic constitutional liberty"

upon which the statute infringed. Id. at 640, 647; Salfi, 422

U.S. at 771 (noting that LaFleur concerned the important

‘freedom of personal choice in matters of marriage and

family life"). Because Ms. Delong has not demonstrated that

her federal employment is a fundamental right, and has not

argued that the statute discriminates against her as a member

lla

of a suspect class, we review § 3207 under the rational basis

test.

Ms. Delong argues that the statute fails under the rational

basis test because it is overly broad. She contends that

removing employees who have been rehabilitated since

committing their crimes, as she alleges she has been, does

not further the legitimate purpose behind the Act of

protecting Indian children from abuse. Ms. Delong asserts

that, in order to pass muster under the Constitution, the

statute must require HHS to conduct a meaningful hearing,

based on individual circumstances, on the issue of whether

an employee is fit for continued employment in a covered

position. We have carefully considered Ms. Delong's

arguments, but we cannot agree that the Constitution

requires such a hearing in her case.

"The hearing required by the Due Process Clause must be

meaningful and appropriate to the nature of the case." Beil v.

Burson, 402 U.S. 535, 541-42, 29 L. Ed. 2d 90, 91 S. Ct.

1586 (1971) (internal quotations and citations omitted). A

procedural rule required to satisfy due process in one context

may not be required in every case. Id. at 540. For example,

in Bell, the Supreme Court held that before Georgia could

deprive an uninsured motorist involved in an accident of his

driver's license and vehicle registration for failing to post

security to cover the amount of damages claimed against him,

it had to conduct a hearing to determine "whether there is a

reasonable possibility" that he might be found at fault or

otherwise liable for the damages. Id. at 540. The Court did

not reach this conclusion because an_ irrebuttable

presumption that uninsured drivers are at fault would be

unconstitutional per se, but because other aspects of the

statute at issue demonstrated that actual liability "played a

crucial role in the . . . [law]." Id. at 541. For example, Georgia

would not suspend the uninsured driver's license if the

injured party released him from liability or if there was an

adjudication of nonliability. Id. Relevant to Ms. Delong's

appeal is the Court's statement that if "fault and liability

[were] irrelevant to the statutory scheme," a hearing limited

to the issues of whether the uninsured driver was involved in

the accident, whether he had complied with the statute, and

12a

whether he fell under any of the exceptions to the statute

“would [have been] appropriate to the nature of the case." Id.

(internal quotation omitted). Under those circumstances, a

hearing on liability would not be required. Id. Section 3207 is

similar to the "no-fault" scheme distinguished in Bell in that it

prohibits the employment of any person who fails to satisfy

certain minimum standards of character, regardless of

whether the person actually poses a threat to Indian children.

Bell therefore indicates that the Constitution does not require

that Ms. Delong be afforded a hearing on the issue of her

fitness for service in a covered position.

In creating the minimum standards of character set forth

in § 3207, Congress created a bright line rule that anyone

who has been convicted of an enumerated crime may not

serve in a covered position. Like all bright line rules, § 3207

is both over-inclusive and under-inclusive, but the

imprecision of the statute does not make it unconstitutional.

The Supreme Court's analysis of the Social Security statute at

issue in Salfi is instructive on this point. The statute denied

Survival benefits to "widows and stepchildren who had their

respective relationships to a deceased wage earner for less

than nine months prior to his death." Salfi, 422 U.S. at 754.

The statute "was intended to prevent the use of sham

marriages to secure Social Security payments." Jd. at 767.

The Court noted that, when a Statute does not infringe upon a

constitutionally protected status or a fundamental right, the

Constitution does not "ban all prophylactic [over-inclusive

and under-inclusive] provisions," and does not even require

that "the provision filters out a substantial part of the class

which caused congressional concern, or [that] it filters out

more members of the class than nonmembers." Id. at 777.

Instead, the Court Stated, "the question is whether Congress,

its concern having been reasonably aroused by the Possibility

of an abuse which it legitimately desired to avoid, could

rationally have concluded both that a particular limitation . ..

would protect against its occurrence, and that the expense

and other difficulties of individual determination justified the

inherent imprecision of a prophylactic rule." Id.

Ms. Delong admits that the creation of minimum

standards of character for those who have regular contact

13a

with Indian children is rationally related to the government's

interest in protecting those children from abuse. Congress

could rationally have concluded that the minimum standards

of character in § 3207 would reduce the incidence of abuse

of Indian children at the hands of federal employees.

Moreover, given the difficulty of identifying employees who

pose a threat to Indian children, the choice of a blanket rule

is justified in this case. Cf. Vlandis v. Kline, 412 U.S. 441,

452, 37 L. Ed. 2d 63, 93 S. Ct. 2230 (1973) (striking a

statute that denied students the resident rate for state

university tuition and fees by operation of an irrebuttable

presumption where the state had "reasonable alternative

means of making the crucial [resident or nonresident]

determination"); LaFleur, 414 U.S. at 800 n.14 (noting that,

instead of imposing an irrebuttable presumption that women

are physically unfit to work as teachers after their fifth month

of pregnancy, the school boards "could require the pregnant

teacher to submit to a medical examination by a school board

physician, or simply require each teacher to submit a current

certification from hér obstetrician as to her ability to

continue work"); but see Stanley v. Illinois, 405 U.S. 645,

652, 31 L. Ed. 2a 551, 92 S. Ct. 1208 (1972) (stating that a

father's “interest in retaining custody of his children is

cognizable and substantial" and requiring a hearing on the

issue of a father's parental fitness before his children can be

removed from his custody).

CONCLUSION

Although § 3207 appears to work an unfortunate result in

Ms. Delong's case, requiring her removal on the sole basis of

an assault and battery conviction that is over twenty-five

years old, we cannot say that HHS's application of the statute

to Ms. Delong violated her due process rights. Therefore, the

final decision of the Board sustaining HHS's removal of Ms.

Delong from her position as a Substance Abuse Specialist is

AFFIRMED.

No costs.

. 14a

Footnotes

15a

DOCKET NUMBERS DE-0752-99-0219-I-1, DA-0752-99-0315-I-

1, DA-0752-99-031 1-I-1, DE-0752-99-0299-I-1

MERIT SYSTEMS PROTECTION BOARD

ROGER V. JOHNSON, QUINTON E. CASE, PHILLIP G.

DAUGHERTY, AND LOIS DELONG,

Appellants,

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Agency.

August 23, 2000

Daniel Minahan, Esquire, Minahan & Shapiro, P.C.,

Lakewood, Colorado, for appellant Johnson; Nathan H.

Young, III, Esquire, Tahlequah, Oklahoma, for appellant Case;

Peachie Barton-Daugherty, Cookson, Oklahoma, for appellant

Daugherty; John Fredericks III, Esquire, Louisville, Colorado,

for appellant Delong.

James M. Cribari, Esquire, Denver, Colorado; Shara

Michalka, Esquire, Dallas, Texas; Sandra Trent, Esquire,

Dallas, Texas, for the agency.

OPINION BY: TAYLOR

OPINION:

BEFORE

Beth S. Slavet, Acting Chairman

Susanne T. Marshall, Member

l6a

OPINION AND ORDER

, We GRANT the agency's petitions, AFFIRM

gS in connection with the

)

ons with respect to the

administrative judges'

removal actions.

BACKGROUND

The agency removed the appellants from their positions

of employment based on viola

of character under the

Violence Prevention Act, Pub. L. No. 101-630, 1990

U.S.C.C.A.N. (104 Stat.) 4544, codified at 25 U.S.C. § 3207

(the "Act" or "statute"). As fully set forth in the analysis

section of this decision, the Act requires the agency to

“compile a list of all authorized positions . . . the duties and

responsibilities of which involve regular contact with, or

control over, Indian children .." (“covered Position") and to

“conduct an investigation of the character of each individual

who is employed or is being considered for employment" in a

covered position. 25 US.C. $ 3207(a). The statute States that

‘the minimum standards of character . . . shall ensure that

none of the individuals appointed to [covered] positions .. .

have been found guilty of, or entered a plea of nolo

contendere, or guilty to, any offense under federal, State, or

tribal law involving crimes of violence; sexual assault,

molestation, exploitation, contact or prostitution, or crimes

against persons" ("covered crimes"). 25 U.S.C. § 3207(b).

The issue presented is whe

17a

the Board. We have set forth below the individual facts of

each case.

Johnson was employed as a Clinical Nurse, GS-9, at the

agency's Indian Health Center in Pine Ridge South Dakota.

Johnson Initial Appeal File 1 DE-0752-99-0219-I-1 (LAF 1), Tab

1 and Tab 12, Subtab 4K at 20. Case was employed as a

Medical Technician, GS-0645-04, and Daugherty was

employed as a Clinical Nurse, GS-0610-09, both by the

Oklahoma City Area Indian Health in the W.W. Hastings

Indian Hospital in Tahlequah, Oklahoma. Case Initial Appeal

File 2 DA-0752-99-315-I-1 (LAF2), Tab 1 and Daugherty Initial

Appeal File 3 DA-0752-99-0311-I-1 (LAF3), Tab 1. Delong was

employed as a Substance Abuse Specialist at the Aconma-

Caoncito-Lauguna Service Unit, San Fidel, New Mexico.

Delong Initial Appeal File 4 DE-0752-99-299-I-1 (LAF4). The

agency classified the appellants' positions as covered

positions under the Act.

As the result of background investigations required by the

Act, the agency discovered that each appellant had been

convicted of, or pled guilty or no contest to a crime against

persons. In 1999, Johnson pled no contest to the charge of

attempted terroristic threats.’ IAF1, Tab 12, Subtab 4F. In

1992 and 1996, Case pled guilty to two charges of assault and

battery. LAF2, Tab 6, Subtab 4e. While Daugherty was serving

in the Marine Corps in 1983, he was convicted by a special

military court martial of indecent assault with intent to gratify

his lust and/or sexual desires. LAF3, Tab 7, Subtab 4d. In 1974,

Delong was convicted of assault and battery. IAF4, Tab 6,

Subtab 4i.

Prior to proposing their removals and as required by the

Act, 25 U.S.C. § 3207(b), the agency searched for available

vacant positions to which the appellants could have been

reassigned; however, no such positions were available that

did not have contact with Indian children. Consequently, the

agency removed Johnson for failure to meet the suitability

requirements of a clinical nurse who has regular contact with

Indian children. LAF1, Tab 12, Subtab 4C. In separate actions,

the agency removed Case and Daugherty for: (1) loss of

qualifications and ineligibility to perform the duties of the

18a

position; and (2) falsification of the application for Federal

employment.” IAF2, Tab 6, Subtab 4e; [AF3, Tab 7, Subtab 4d.

Delong was removed for her loss of eligibility to perform the

duties of the position for which she was hired. The appellants

filed separate appeals.

Although the administrative judges issued separate initial

decisions, they used the same rationale to reverse the

agency's removal actions. Basically, they found that the plain

language of the Act did not mandate the removals. Johnson

Initial Decision 1 (ID1), IAF1, Tab 24; Case Initial Decision

(ID2), IAF2, Tab 20; Daugherty Initial Decision (ID3), IAF3,

Tab 17; and Delong Initial Decision (ID4), IAF4, Tab 23.’ In

finding that the removals were not sustainable, the

administrative judges relied on regulations issued in

accordance with the Act by the Bureau of Indian Affairs

(BIA), the agency's sister agency. The BIA regulations

authorized the agency to consider mitigating circumstances

in determining whether an employee should be terminated

based on a violation of the minimum standards of character.

Id.

The agency filed timely petitions for review arguing that

the administrative judges erroneously interpreted section

3207 of the Act. Johnson Petition for Review File | DE-0752-

99-02 19-I-1 (PFRF1), Tab 2; Case Petition for Review File 2

DA-0752-99-0315-I-1 (PFRF2); Daugherty Petition for Review

File 3 DA-0752-99-0311-L-1 (PFRF3); and Delong Petition for

Review File 4 DE-0752-99-0299-I-1 (PFRF4). Additionally, the

agency requested that the Board take judicial notice of the

BIA's regulatory amendment, which revised the regulations to

State that "an employer must deny employment or dismiss

any employee when he has been found guilty of or entered a

plea of guilty or nolo contendere" to a covered crime. 64 Fed.

Reg. 66,770, 66,771 (1999) (to be codified at 25 C.F.R. §

63.19.‘ In their Separately filed responses, the appellants

argue that the administrative judges correctly interpreted the

Statute based on the version of the regulation in effect at the

time of the removals and that the amendment does not

mandate the reversal of the initial decisions because it cannot

be applied retroactively in these cases."

19a

ANALYSIS

The agency argues that the administrative judges'

interpretation of 25 U.S.C. § 3207 is erroneous as a matter

of law because it is contrary to the plain meaning of the

language in the statute. For the reasons discussed below, we

find that the administrative judges erred by relying on the BIA

regulations and finding that the adjudicating agency official

has discretion to consider mitigating factors when

determining whether an employee should be removed based

on a violation of the minimum standard of character under

the Act.

The starting point_of every case involving statutory

construction must be the language of the statute itself. Todd

v. Department of Defense, 63 M.S.P.R. 4, 7 (1994), aff'd, 55

F.3d 1574 (Fed. Cir. 1995). In Chevron, U.S.A. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842 (1984),

the Supreme Court provided the framework under which a

court is to review an agency's construction of a statute that it

administers. Consistent with Chevron, the Board must follow

a two-step process in its review. The first step is to determine

whether Congress has spoken directly to the issue through

the language of the statute. Jd. "If the intent of Congress is

clear, that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously expressed

intent of Congress." Id. The Board reaches the second step

only if it finds that Congress did not directly address the issue

in question and the statute is silent or ambiguous with

respect to the specific issue. The second step is to determine

whether the agency's interpretation is based on a permissible

construction of the statute. Id. at 843. If the construction is

permissible, the reviewing authority should defer to the

agency's interpretation. We conclude that the initial decisions

improperly reversed the mandated order of Chevron analysis.

In applying Chevron, we must first look at the applicable

language of the statute. The pertinent portion of the statutory

language is as follows:

TO Le Le ee

20a

§ 3207. Character investigations

(a) By Secretary of the Interior and the

Secretary of Health and Human Services

The Secretary and the Secretary of Health

and Human Services shall -

(1) compile a list of all

authorized positions within

their respective departments

the duties and responsibilities

of which involve regular

contact with, or control over,

Indian children.

(2) conduct an investigation of

the character of each individual

who is employed, or is being

considered for employment, by

the respective Secretary in a

position listed pursuant to

paragraph (1), and

(3) prescribe by regulations

minimum Standards of.

character that each of such

individuals must meet to be

appointed to such positions.

(b) Criminal records

The minimum standards of character that are

to be prescribed under this section Shall

ensure that none of the individuals appointed

to positions described in subsection (a) of this

section have been found guilty of, or entered a

plea of nolo contendere or guilty to, any

offense under Federal, State, or tribal law

involving crimes of violence; sexual assault,

2la

molestation, exploitation, contact oF

prostitution; or crimes against persons.

25 U.S.C. § 3207. We begin by addressing whether section

3207 applies to both current and prospective employees. We

reject the administrative judge's finding in the Delong case,

IAF4, 1D4 at 4-5, and Johnson's argument on petition for

review, PFRF1, Tab 4 at 3-4, that the statute only covers new

appointments. Because subsection (b) states that the

minimum standards apply to "individuals appointed to

positions described in subsection (a)" and because

subsection (a) refers to "each individual who is employed, or

is being considered for employment" in a covered position,

we find that the minimum standards apply to both current

and prospective employees.

Additionally, Johnson argued that the term ‘crimes

against persons" means multiple crimes or acts. See PFRF1 at

5. We reject this interpretation because it distorts the plain

language of the Act. The statute requires that the minimum

standards of character ensure that none of the individuals

appointed to covered positions have been found guilty of, or

entered a plea of no contest or guilty to, "any offense under

Federal, State, or tribal law involving crimes of violence;

sexual assault, molestation, exploitation, contact or

prostitution; or crimes against persons.".25 U.S.C. § 3207(b)

(emphasis added). The key word in this provision is "offense,"

which is in the singular form. We note that the plural terms,

“crimes of violence" and "crimes against persons," refer to a

category of crimes that Congress intended to be within the

purview of the statute. We find that the term "crimes against

persons" describes one type of offense that is actionable

under the statute.

We now turn to the main issue of whether the language

of section 3207 mandated the removal actions. In subsection

(a)(3), Congress authorized the agency to "prescribe by

regulations minimum standards of character." By using the

word "shall" in subsection (b), it mandated that those

standards must "ensure that none of the individuals

appointed to [covered] positions . . . have been found guilty

of, or entered a plea of nolo contendere or guilty to,..." a

22a

covered crime. 25 U.S.C. § 3207(b). The only way to

“ensure" that none of the individuals appointed to a covered

position have been "found guilty of, or entered a plea of nolo

contendere or guilty to," a covered crime is to make that

prohibition the base eligibility requirement for obtaining

and/or retaining employment in a covered position.

Therefore, under its plain meaning, we find that section

3207(b) requires, as the minimum eligibility standard for

holding a covered position ("the minimum Standard"), that

the individual who is employed, or is being considered for

employment, must not have been found guilty of, or entered a

plea of nolo contendere or guilty to, a covered crime.

Even though the appellants' argument that the plain

language of the statute does not include the words "remove"

or "dismiss" is technically correct, we find that two necessary

conclusions naturally follow from the plain meaning of

Subsection 3207(b): (1) if an individual who is being

considered for employment does not meet the minimum

standard, he cannot be appointed to a covered position; and

(2) if an individual who is employed in a covered position

fails to meet the minimum standard, he cannot continue to be

appointed to that position. If a character investigation

discloses that an individual has violated the minimum

Standard, removal from the covered position is required

under the language of the statute because that is the only way

to “ensure" that "none of the individuals appointed to

[covered] positions . . . have been found guilty of, or entered a

plea of nolo contendere or guilty to," a covered crime. Neither

the appellants nor the administrative judges indicated how

the statutory mandate could otherwise be satisfied.

Our interpretation of section 3207 is supported by

section 3201 of the Act. Section 3201(a) provides, in pertinent

part, that, after holding hearings on the problem of child

abuse on Indian reservations, Congress found that multiple

incidents of sexual abuse of Indian children had been

perpetrated by Federal employees and _ that Federal

background investigations of Federal employees who care for

Indian children had been deficient. 25 USC. §

-3201(a)(1)(C) and (D). The language and history of the Act

show that Congress intended to afford the maximum

23a

protection for Indian children and that there were concerns

about incidents where Federal employees had abused them.

We find that the statute's purpose is clearly protective,

rather than punitive. In section 3201(a)(2)(A), Congress

declared that one of its major goals is to identify the scope of

incidents of abuse of Indian children and "to reduce such

incidents." 25 U.S.C. § 3201(a)(2)(A) (emphasis added). The

Act identifies a narrow category of individuals, those who

have been convicted of or pled no contest or guilty to, a

covered crime, and ensures that those individuals do not hold

positions within the agency where their duties will involve

contact with or control over Indian children. This serves the

overall goals of the Act, to prevent child abuse, and protect

Indian children. Additionally, we note that one of the stated

purposes of the Act is to "authorize such other actions as are

necessary to ensure effective child protection in Indian

country" and on Indian reservations. 25 U.S.C. § 3201(b)(3)

and (9) (emphasis added). Given this Congressional

statement, we find no valid basis in the appellants' argument

for prohibiting new appointments while not terminating the

appointments of those holding covered positions who have

been found guilty of, or entered a plea of no contest or guilty

to, a covered crime. In order to enforce the minimum

standard under section 3207(b), we find that, if a character

investigation reveals that an individual who holds a covered

position has violated the minimum standard, removal from

that position is a necessary action to ensure effective Indian

child protection and to reduce incidents of Indian child abuse

perpetrated by Federal employees.

Here, it is undisputed that the appellants held covered

positions and that they each violated the minimum standard

of character by either being convicted of, or pleading guilty

or no contest to a crime that is classified as a crime against

persons. We find that the agency properly removed the

appellants from their positions as required by the plain

language of the statute.

There is a nexus between the conduct and promotion of the

efficiency of service.

REE ATI NATE MCT OVNI

24a

The nexus limitation imposed by 5 U.S.C. § 7513(a),

requires an agency to show by preponderant evidence "the

necessary connection between the employee's off duty

misconduct and the employee's job-related responsibilities."

White v. U.S. Postal Service, 768 F.2d 334, 335-36 (Fed. Cir.

1985). Nexus may be shown in one of three ways: (1) a

rebuttable presumption of nexus that may arise in certain

egregious circumstances based on the nature and gravity of

the conduct; (2) a showing by preponderant evidence that the

conduct affects the employee's or his coworkers' job

performance, or management's trust and confidence in the

employee's job performance; or (3) a showing by

preponderant evidence that the conduct interfered with or

adversely affected the agency's mission. Kruger v.

Department of Justice, 32 MS.P.R. 71, 74 (1987).

Here, by enacting the mandatory language of section

3207, we find that Congress created a presumption of nexus

between an employee's violation of the minimum standard of

character and appointment to or continued service in a

covered position. Section 3207 reflects the view of Congress

that prohibiting individuals who have been found guilty of, or

entered a plea of no contest or guilty to, a covered crime from

holding a covered position promotes the efficiency of the

agency's service.

Appellants Daugherty and Delong argued that a nexus

could not be presumed because the ‘violations. of the

minimum standard of character occurred more than ten years

ago. Further, all of the appellants asserted that it is

undisputed that the violations never affected their job

performance, or management's trust and confidence in them.

Although we acknowledge that the removals were unrelated

to the appellants' job performance, nevertheless, because the

language of the statute does not limit its coverage to a

specific time period, we disagree with their assertion that

nexus cannot be presumed. We find that the appellants'

Claims are insufficient to rebut the presumptivun of nexus and

that the history and purpose of the statute establish the vital

connection between the appellants’ off duty conduct and the

efficiency of the service.

25a

We also reject the appellants' claims that the penalty of

remoOval is unreasonable and that it should be mitigated. The

Board has held that it has authority to reduce the penalty

imposed by an agency if certain mitigating circumstances

exist. Douglas v. Department of Veterans Affairs, 5 M.S.P.R.

280 (1981). However, in the circumstances of these cases,

the plain meaning of section 3207 prohibits individuals from

holding an appointment to a covered position if they have

been found guilty of, or entered a plea of no contest or guilty

to, a covered crime. Further, the agency showed that there

were no other positions to which the appellants could have

been reassigned, given the number of its positions that

involve contact with Indian children. See IAF1, Tab 12,

Subtabs 4A, 4C; IAF2, Tab 6, Subtab E and Tab 13, Subtabs

1A, 4F, 4G; IAF3, Tab 7, Subtabs 1A, 4E; LAF4, Tab 6, Subtabs

4B, 4H. Accordingly, we find that the agency was justified in

removing them, and we sustain the removal actions.

ORDER

This is the final decision of the Merit Systems Protection

Board in these appeals. Title 5 of the Code of Federal

Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).

NOTICE TO APPELLANTS JOHNSON AND DAUGHERTY

REGARDING YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final

decision.

Discrimination Claims: Administrative Review

You may request the Equal Employment Opportunity

Commission (EEOC) to review this final decision on your

discrimination claims. See Title 5 of the United States Code,

section 7702(b)(1) (5 U.S.C. § 7702 (b)(1)). You must send

your request to EEOC at the following address:

Equal Employment Opportunity Commission Office of

Federal Operations

P.O. Box 19848

Washington, DC 20036

26a &

You should send your request to EEOC no later than 30

calendar days after your receipt of this order. If you have a

representative in this case, and your representative receives

this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your

representative. If you choose to file, be very careful to file on

time. -

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision

on your discrimination claims, you may file a civil action

against the agency on both your discrimination claims and

your other claims in an appropriate United States district

court. See 5 U.S.C. § 7703(b)(2). You must file your civil

action with the district court no later than 30 calendar days

after your receipt of this order. If you have a representative in

this case, and your representative receives this order before

you do, then you must file with the district court no later than

30 calendar days after receipt by your representative. If you

choose to file, be very careful to file on time. If the action

involves a claim of discrimination based on race, color,

religion, sex, national origin, or a disabling condition, you

may be entitled to representation by a court-appointed lawyer

and to waiver of any requirement of prepayment of fees,

costs, or other security. See 42 US.C. § 2000e5(f); 29 U.S.C.

§ 794a.

Other Claims: Judicial Review

If you do not want to request review of this final decision

concerning your discrimination claims, but you do want to

request review of the Board's decision without regard to your

discrimination claims, you may request the United States

Court of Appeals for the Federal Circuit to review this final

decision on the other issues in your appeal. 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

27a

The court must receive your request for review no later than

60 calendar days after your receipt of this order. If you have a

representative in this case, and your representative receives

this order before you do, then you must file with the court no

later than 60 calendar days after receipt by your

representative. 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 statutory 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 5 U.S.C. § 7703. You may

read this law as well as review other related material at our

web site, http://www.mspb.gov.

NOTICE TO APPELLANTS CASE AND DELONG

REGARDING YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States Court of

Appeals for the Federal Circuit to review this final decision.

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

The court must receive your request for review no later than

60 calendar days after your receipt of this order. If you have a

representative in this case, and your representative receives

this order before you do, then you must file with the court no

later than 60 calendar days after receipt by your

representative. 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 statutory 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).

28a

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). You may read this law

as well as review other related material at our web site,

http://www.mspb.gov.

FOR THE BOARD:

Robert E. Taylor

Clerk of the Board

Washington, D.C.

Footnotes

' This is a class I misdemeanor, and it is classified as a

crime against persons by the State of Nebraska. Neb. Rev. St.

§ 28-311.01. IAF1, Tab 12, Subtab 4H.

* Both Case and Daugherty failed to disclose these

convictions on their employment applications. The

administrative judge did not sustain these charges. Because

the agency has not raised the issue and based on our findings

in this Opinion and Order, it is not necessary for us to analyze

whether the falsification charges were sustainable.

* While the administrative judge in the Delong case did

not cite to the regulations, he applied similar factors in

determining that the charge was not sustainable. ID4 at 6.

* Although the agency in these appeals had issued

proposed regulations in accordance with the Act, they were

not final at the time of the appellants' removals. Therefore,

after finding that the statute was silent as to whether the

agency had discretion to consider mitigating circumstances in

connection with covered crimes, the administrative judges

looked to the regulations issued by the BIA for guidance. The

BIA regulations, found at 25 C.F.R. § 63.19, were

promulgated under 25 U.S.C. § 3207(a)(3). The regulations

provided that the employer "may deny employment or

29a

dismiss an employee when an individual has been found

guilty of or entered a plea of guilty or nolo contendere to any

Federal, state, or tribal offense involving crimes against

persons." 25 C.F.R. § 63.19(a) (emphasis added). On

November 30, 1999, the BIA regulations were amended to

change "may" to "must." 64 Fed. Reg. 66,771 (1999). Again,

because of our analysis, it is not necessary to address either

agencies’ regulations or the BLA amendments.

* We note that Daugherty labeled his filing as a "cross

petition for review"; however, because it asks us to sustain

the initial decision and raises no additional issues, it

constitutes his response to the agency's petition for review.

etn stecinatin’ kates pecomree ye mom none enced

Stee

30a

Docket Number DE-0752-99-0299-I-]

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENVER FIELD OFFICE

LOIS DELONG,

Appellant,

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Agency.

DATE: December 13, 1999

John Fredericks, Esquire, Fredericks, Pelcyger & Hester,

L.L.C., Louisville, Colorado, for the appellant.

Leslie Stafford, Esquire, and T. Sue Duran, Dallas, Texas, for

the agency.

BEFORE

Jack E. Salyer

Administrative Judge

INITIAL DECISION ;

The appellant timely appealed to the Merit Systems

Protection Board (the Board) from the action of the agency,

the Indian Health Service (IHS), removing her from the

position of Substance Abuse Specialist, Acoma-Canoncito- -

Laguna (ACL) Service Unit, IHS, San Fidel, New Mexico,

effective June 4, 1999. The appellant has appeal rights to the

Board from the agency's action under 5 USC. $§

7511(a)(1)(A), 7512(1), 7513(d), and 770i(a).

For the reasons outlined below, I REVERSE the appellant's

removal.

3la

ANALYSIS AND FINDINGS

Background

The following salient facts are undisputed unless otherwise

stated. At all pertinent times, the appellant was employed as

a Substance Abuse Specialist, Acoma-Canoncito-Laguna

(ACL) Service Unit, [HS, San Fidel, New Mexico. The

appellant has approximately 10 years of Federal service.

In 1974, the appellant, an Indian, and a college student at the

University of South Dakota, was convicted in the South

Dakota state courts of assault and battery. The appellant's

conviction stemmed from criminal charges arising out of a

campus fight between Indian and non-Indian students. The

appellant was sentenced to jail for 25 days and paid a fine of

$200. The appellant has had no further involvement with the

criminal justice process. On March 23, 1999, the results of a

background investigation by the Office of Federal

Investigations of the Office of Personnel Management (OPM)

were received by the agency. The investigat:ve report

included the appellant's nearly 25-year-old conviction.

On April 19, 1999, Patricia L. Tomhave, Director, Division of

Personne! Management, Albuquerque Area Indian Health

Service, proposed the appellant's removal based on her

alleged loss of her eligibility to perform the duties of her

position based on the Indian Child Protection and Family

Violence Prevention Act, Public Law (P.L.) 101-630. The

appellant responded to the proposed removal in writing. On

May 27, 1999, Captain (CPT) Richie Grinnell, Acting

Executive Officer, Albuquerque Area Indian Health Service,

issued a decision effecting the appellant's removal on June 4,

1999. The appellant subsequently filed the present appeal.

Because the appellant freely and unequivocally withdrew her

hearing request, this decision is based on the parties’ written

submissions. See generally Appeal File.

ania cantina i ote ie aah 2A.

32a

Burdens of proof

As to the merits of the appeal, the agency must prove the

facts of the misconduct charge by a preponderance of the

evidence. 5 USC. § 7701(c)(1)(B); 5 CFR. §

1201.56(a)(1)(ii). Preponderance of the evidence is defined

by Board regulation as that degree of relevant evidence

‘which a reasonabie person, considering the record as a

whole, would accept as sufficient to find that a contested fact

is more likely to be true than not true. 5 CFR. §

1201.56(c)(2). If the agency proves the misconduct charge, it

must additionally demonstrate that disciplinary action is

warranted for the sustained charge and that the penalty

selected is within tolerable limits of reasonableness. See

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06

(1981).

The agency has failed to prove by a preponderance of the

evidence that the appellant has lost her eligibility to perform

the duties of her position.

The agency proposed and effected the appellant's removal

because of her alleged loss of eligibility to perform the duties

of her position under the Indian Child Protection and Family

Violer.ce Prevention Act. Appeal File, Tabs 6(4g) and (4b).

The agency's position, simply put, is that the foregoing Act

somehow mandates the removal of any employee, such as the

appellant, who has beén convicted of assault. However, for

the following reasons, I find that the applicable statutory

provisions do not per se require removal of current

employees convicted of assault or any other offenses for that

matter.

The pertinent provisions of the Indian Child Protection and

Family Violence Prevention Act are as follows: The Secretary

of the Interior and the Secretary of Health and Human

Services are required to:

33a ”

(1) compile a list of all authorized positions

within their respective departments the duties

and responsibilities of which involve regular

contact with, or control over, Indian children,

(2) conduct an investigation of the character

of each individual who is employed or is being

considered for employment, by the respective

Secretary in a position listed pursuant to

paragraph (1), and

(3) prescribe by regulations minimum

standards of character that each of such

individuals must meet to be appointed to such

positions.

25 U.S.C. § 3207(a). The Act also provides:

The minimum standards of character that are

to be prescribed under this section shall

ensure that none of the individuals appointed

to positions described in subsection (a) of this

section have been found guilty of, or entered a

plea of nolo contendre or guilty to, any offense

under Federal, State, or tribal law involving

crimes of violence; sexual assault,

molestation, exploitation, contact, or

prostitution; or crimes against persons.

25 U.S.C. § 3207(b).

First, I find that it is undisputed that the appellant's

Substance Abuse Specialist position is a "covered position"

under the Act. It is also undisputed that the appellant was

convicted of a criminal offense covered by the Act.

However, I have carefully read and reread the foregoing

statutory provisions and find no language contained therein

which expressly requires the agency to remove current

Federal employees who, like the appellant, have been

SN te ee ee

34a

convicted of assault or any other offenses. Furthermore,

there is no language in the Act which prohibits agency

deciding officials from considering extenuating and

mitigating circumstances in weighing the appropriateness of

a disciplinary penalty.' 25 U.S.C. §§ 3207(a) and (b).

Conversely, I find that, in the Act, there is express statutory

language which clearly bars new appointments to covered

positions of individuals who have a criminal record

consisting of certain specified offenses. 25 U.S.C. §§ 3207(a)

and (b). Under the circumstances, I find that Congress

intended to bar new appointments of individuals convicted of

certain offenses against persons.’ I also find that, if Congress

had intended that all current Federal employees possessing

convictions for such offenses were to be removed, it would

unévubtedly have enacted legislation stating just that. That

Congress did not pass such sweeping legislation is, I find,

compelling evidence that it did not intend that all current

Federal employees who have ever been convicted of any of

the specified offenses must be removed. See Hargrove v.

Department of Defense, 77 M.S.P.R. 266, 270 (1998).

I therefore find that the agency has erred in promulgating

regulations and policies which, in the absence of clear

Congressional intent, provide for a per se policy of removal

of current Federal employees who have been convicted of

covered offenses and do not allow deciding officials to

independently weigh the appropriateness of the penalties to

be assessed. See Chevron, U.S.A., Inc., v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 843 (1983); see Diehl v.

Office of Personnel Management, 50 M.S.P.R. 519, 522 (1991).

I further find that the agency erred in applying its per se

removal rule to the appellant, a current employee with a

single assault conviction in the distant past. Furthermore,

relying as the agency did on its per se rule, it has presented

no evidence whatsoever concerning the appellant's actual

Suitability or eligibility to work with Indian children. I find

that the agency's failure to present such evidence is most

likely attributable to the fact that there is none. Therefore, I

find that the agency's charge or reason for removing the

35a

appellant, i.e., that, pursuant to the Act, she is ineligible for

continued employment with the agency, cannot be sustained.

Even if the agency's charge had been sustained, no

disciplinary action would be for such cause as would

promote the efficiency of the service.

The agency's adverse action must be "for such cause as will

promote the efficiency of the service." 5 U.S.C. § 7513(a).

For the following reasons, I find that taking any disciplinary

action against the appellant based on the sustained charge

does not promote the efficiency of the service. 5 U.S.C. §

7513(a).

The agency nowhere specifically argues that the Board lacks

the authority to review the propriety of the penalty accorded

the appellant. See generally Appeal File. Furthermore, as

noted above, there is no language in the Act which bars such

review. Therefore, I find that the Board has the authority in

the instant appeal, as it does in any adverse action appeal, to

review the propriety of the penalty in the light of all the facts

and circumstances. See LaChance v. Devall, 178 F.3d 1246,

1251 (Fed. Cir. 1999).”

Nearly 25 years ago, when the appellant was quite young and

likely immature, she became involved in a campus fight

between Indians and non-Indians. The appellant's conviction

resulted from an assault charge which arose from this fight

not from overt criminal activity. Thus, I find that the nature

of the appellant's criminal conduct, out of which the criminal

charges arose and for which she was sentenced, to be a

significant mitigating factor. Furthermore, the appellant

served her minimal criminal sentence and, since then, has

had no involvement with the criminal justice process.

Therefore, I find that the record demonstrates that the

appellant is fully rehabilitated.

Furthermore, although neither party has presented any

penalty evidence, I find that it can be presumed that the

appellant's performance and conduct in her position of

Substance Abuse Specialist were at least acceptable or better.

36a

I also find that the agency has produced no evidence

whatsoever that, because of a criminal conviction for assault

which occurred almost 25 years ago, the appellant is

presently ineligible to encumber a position in which she

regularly deals with Indian children. Moreover, that the

appellant has been doing so for approximately 10 years

without incident demonstrates that she is hardly a threat or a

danger to Indian children. Furthermore, I find no nexus or

connection between a single assault conviction now nearly 25

years old that stemmed froni a campus fight and the Act's

certainly laudable purpose of protecting Indian children from

physical and sexual abuse.

Accordingly, I find that, even assuming arguendo that the Act

is somehow applicable to the appellant's factual situation, no

disciplinary penalty at all would be appropriate for her now

nearly 25-year-old single criminal conviction for assault.

Under the circumstances, I find that the imposition of any

discipline at all on the appellant would be an egregious abuse

of the agency's authority to discipline its employees. See

LaChance, 178 F.3d at 1251."

DECISION

The agency's action is REVERSED.

ORDER

The agency is ORDERED to cancel the removal and to

retroactively restore the appellant effective June 4, 1999.

This action must be accomplished no later than 20 calendar

days after the date this initial decision becomes final.

The agency is also ORDERED to issue a check to the

appellant for the appropriate amount of back pay, with

interest-and benefits, in accordance with the Office of

Personnel Management's regulations, no later than 60

calendar days after the date this initial decision becomes

final. The appellant is ORDERED to cooperate in good faith

with the agency's efforts to compute the amount of back pay

37a

and benefits due and to provide all necessary information

-requested by the agency to help it comply.

If there is a dispute about the amount of back pay due, the

agency is ORDERED to issue a check to the appellant for the

undisputed amount no later than 60 calendar days after the

date this initial decision becomes final. The appellant may

then file a petition for enforcement with this office to resolve

the disputed amount.

The agency is further ORDERED to inform the appellant in

writing of all actions taken to comply with the Board's Order

and the date on which it believes it has fully complied. If not

notified, the appellant should ask the agency about its efforts

to comply.

INTERIM RELIEF

If a petition for review is filed, 1 ORDER the agency to

provide interim relief to the appellant in-accordance with 5

U.S.C. § 7701(b)(2)(A). The relief shall be effective upon the

issuance of this decision and will remain in effect until the

decision of the Board becomes final. If an agency files a

petition or cross petition for review and fails to submit

evidence that it has complied with the provisions of 5 C.F.R. §

1201.115(b)(1) or (2), the Board may dismiss the agency's

petitivui for review. If the agency does not return the

appellant to his former position, duties, and tour of duty at

his former duty station, it must justify its failure to do so by

making an “undue disruption determination" in accordance

with 5 U.S.C. § 7701(b)(2)(A). Such a determination must be

communicated to the appellant in writing no later than the

deadline for filing a petition for review. The agency must

include with its petition for review evidence that such a

determination has been duly made and communicated to the

appellant or its petition may be dismissed.

FOR THE BOARD:

Jack E. Salyer,

Administrative Judge

38a

NOTICE TO APPELLANT

This initial decision will become final on January 17, 2000,

unless a petition for review is filed by that date or the Board

reopens the case on its own motion. This is an important

date because it is the last day on which you can file a petition

for review with the Board. The date on which the initial

decision becomes final also controls when you can file a

petition for review with the Court of Appeals for the Federal

Circuit. The paragraphs that follow tell you how and when to

file with the Board or the federal court. These instructions

are important because if you wish to file a petition, you must

file it within the proper time period.

BOARD REVIEW

You may request Board review of this initial decision by filing

a petition for review. Your petition for review must state

your objections to the initial decision, supported by

references to applicable laws, regulations, and the record.

You must file your petition with:

The Clerk of the Board

Merit Systems Protection Board

1120 Vermont Avenue, NW., Room 806

Washington, DC 20419

If you file a petition for review, the Board will obtain the

record in your case from the Administrative Judge and you

should not submit anything to the Board that is already part

of the record. Your petition must be postmarked or hand-

delivered no later than the date this initial decision becomes

final. If you fai! to provide a statement with your petition that

you have either mailed or hand-delivered a copy of your

petition to the agency, your petition will be rejected and

returned to you.

39a

JUDICIAL REVIEW

If you are dissatisfied with the Board's final decision, you

may file a petition with:

The United States Court of Appeals

for the Federal Circuit

717 Madison Place, NW.

Washington, DC 20439

You may not file your petition with the court before this

decision becomes final. To be timely, your petition must be

received by the court no later than 30 calendar days after the

date this initial decision becomes final.

ATTORNEY FEES

If no petition for review is filed, you may ask for the payment

of attorney fees and costs by filing a motion with this office

as soon as possible, but no later than 60 calendar days after

the date this initial decision becomes final. Any such motion

must be prepared in accordance with the provisions of 5

C.F.R. Part 1201, Subpart H, and applicable case law.

ENFORCEMENT

If, after the agency has informed you that it has fully

complied with this decision, you believe that there has' not

been full compliance, you may ask the Board to enforce its

decision by filing a motion with this office no later than 30

calendar days after the date of the agency's notification of

compliance.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of this

initial decision in accordance with the Board's regulations.

40a

Footnotes

' I also find that there is no language in the Act which

prohibits the Board from addressing the propriety of the

penalty accorded the appellant. See analysis, infra.

' Thus, I find that the Act certainly can be construed as

Suitability legislation which is solely prospective in nature. I

also find that there is an easily-drawn distinction to be made

between mere applicants for positions and current employees

who possess tenure and status.

* This is in stark contrast to the clarity of 31 U.S.C. § 1349(b)

which requires a minimum penalty of a 30-day suspension for

willful misuse of a government vehicle and which the Board

has long recognized as binding upon its penalty analysis.

* In view of the foregoing findings, I need not address the

appellant's claim that it was improper for the agency to apply

the Act to her retroactively.

4la

00-3449

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

LOIS DELONG,

Petitioner,

LP ¥ a

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Respondent.

December 21, 2001, Decided

December 21, 2001, Filed

OPINION:

ORDER

A ccmbined petition for panel rehearing and for rehearing

en banc having been filed by the PETITIONER, and a

response thereto having been invited by the court and filed by

the RESPONDENT, and the petition for rehearing having

been referred to the panel that heard the appeal, and

thereafter the petition for rehearing en banc and response

having been referred to the circuit judges who are in regular

active Service,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for panel rehearing be, and

the same hereby is, DENIED and is further

ORDERED that the petition for rehearing en banc be, and

the same hereby is, DENIED.

The mandate of the court will issue on December 28,

2001.

Dated: December 21, 2001

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.