# Petition for Writ of Certiorari — DeLong v. Department of Health & Human Services > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1618%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 536 U.S. 958 ## Text Supreme Court, US. FILED O1)4 Lu mar 21 2002 No. OPRFICE OF [HE CURRIN nn 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 nuk oo SR VORA Ret wre i 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? ll TABLE OF CONTENTS CEST ING PTT isis ecstinsncsanatsesnccesarevictnsnaniesenamtuapaienestiee es i REE CF CI vvcsnisctcscnanrakae as ii TABLE, OF BAPRIO IID aisiissiscsccccccssasaenaptsdnemetnaeanaiincecerle toe iv OPINIONS AND ORDERS BELOW ...........c.cccccssssessscecssescasscesceseeeesseses l COIN ssiciisvisivcisarcsnnndnastseses cian aecn ta nage ee eee ] CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.......... l SEATS CP TO COI acoseinccaisices ncesntagsanied cian 2 SII sissies aan are 6 ARI sisisiniishiasicsninndelpacieet a ee ee 27 APPENDIX CIRCUIT COURT ORDER (09/05/2001) .......cccseccscecececcececeeseeees la BESS CPI is acesnssssececsidbinapsmenauaioemdictn as wee 15a 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 iv 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 ek EF | IR ee RN: 14 Feder. ute Oy Ray MI pete ee 6, 23, 24 nih, PE bitsarcstnccneieee age ua ee cl one 5 RE PANTO UNMET RMN LO UTR WII S 2 5 ee a 4 Reale alin A nen ir lid iba Si SE UGE OU i ico aan 5 Oe EN a sasnsnisersinansithiinnshinrsnnaniallehililantiia 13 eT ke eee 1, 3, 4,5 ET REN ET 18 nS OTA TORN Es Fe 1 ST RA ER ae 6 l 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 3 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 4 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 6 §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. So Petileeniia che CA Reeth and iret Hd HG yale A ARM OA alone Ee shrine in RASA ieee olla oma! RNG Skin Bah Se eee = ¥ aes : fe OP A ON ee tsa 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 8 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 ee 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 10 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 — wees Se ae ee fel ow we pee yng nila ehtpettANh sg 11 “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 12 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 13 772. 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 ty 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 & 15 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 16 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 17 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,” 18 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 19 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 20 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 21 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” 22 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 23 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 25 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 26 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. 27 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 la 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 2a Servs., No. DE-0752-99-0299-I-1 (Merit Sys. Prot. Bd. Aug. 23, 2000) ("Delong"). We affirm. BACKGROUND I. 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. 3a 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 4a 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). 5a DISCUSSION I. 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, 6a 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 7a (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 8a 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 - 9a [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 y 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 eA 30a Docket Number DE-0752-99-0299-I-] UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DENVER FIELD OFFICE LOIS DELONG, Appellant, V. 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 a 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 i [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1618%3A1. Public record. Not legal advice.