DeLong v. Dept of Health & Human Services

• Decision Date: 05 September 2001
• Docket Number: No. 00-3449,00-3449
• Parties: (Fed. Cir. 2001) LOIS DELONG, Petitioner, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

Page 1334

264 F.3d 1334 (Fed. Cir. 2001)

LOIS DELONG, Petitioner, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.

No. 00-3449

United States Court of Appeals for the Federal Circuit

September 5, 2001

Appealed from: Merit Systems Protection Board

[Copyrighted Material Omitted]

John Fredericks III, 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.

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

SCHALL, Circuit Judge.

Lois Delong petitions for review of the final decision of the Merit Systems Protection Board ("Board") that sustained her removal from her position with the Department of Health and Human Services ("HHS" or "agency") pursuant to 25 U.S.C. 3207 (1994). Delong v. Dep't of Health & Human Servs., No. DE-0752-99-0299-I-1 (Merit Sys. Prot. Bd. Aug. 23, 2000) ("Delong"). We affirm.

BACKGROUND

I.

Ms. Delong was employed as a Substance Abuse Specialist at the Acoma-Canoncito Lauguna 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 Lauguna Service Unit serves Indians in the Albuquerque, New Mexico area. Ms. Delong's position involved working with adolescents who were receiving treatment 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").¹ 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 3207.² HHS therefore removed her from her position effective June 4, 1999.

II.

Ms. Delong appealed her removal to the Board. In an initial decision, the Administrative Judge ("AJ") to whom the case was assigned reversed HHS's action. Delong v. Dep't of Health & Human Servs., No. DE-0752-99-0299-I-1 (Merit Sys. Prot. Bd. Dec. 13, 1999) ("Initial Decision"). The AJ noted that Ms. Delong did not dispute that her position was covered by the Act or that her assault and battery conviction violated the minimum standards of character set forth in the Act. Id., slip op. at 4. However, the AJ declined to interpret the Act as requiring HHS to remove current employees who have been convicted of enumerated crimes. Instead, the AJ read the statute as permitting HHS to "consider[] extenuating and mitigating circumstances in weighing the appropriateness of a disciplinary penalty" against a current employee, even though the statute "clearly bars new appointments . . . of individuals who have a criminal record that includes an enumerated offense." Id. Because HHS had not considered Ms. Delong's actual suitability for work with Indian children, the AJ determined that her removal should not be sustained. Id. at 5.

The AJ also determined that HHS had failed to demonstrate that Ms. Delong's removal "promoted the efficiency of the service," as required by 5 U.S.C. 7513(a) (1994). Specifically, the AJ determined that the nature of Ms. Delong's crime, the fact that it occurred twenty-five years ago and stemmed from a campus fight between Indians and non-Indians, the evidence of Ms. Delong's rehabilitation, and her ten years of service without incident demonstrated that she did not pose a threat to Indian children. Id. at 6-7. The AJ therefore concluded that Ms. Delong's removal would not further the Act's purpose of protecting Indian children from abuse. Id. at 7. Accordingly, the AJ reversed HHS's removal of Ms. Delong.

HHS petitioned the full Board for review of the Initial Decision. The Board disagreed with the AJ's interpretation of the Act and reversed the Initial Decision. Delong, slip op. at 2. The Board rejected the distinction drawn in the Initial Decision between current and prospective employees, and interpreted the statute as applying with equal force to individuals who are employed in a position covered by 3207(a) and individuals who are being considered for employment in such a position. Id. at 7. The Board also determined that the statute does not permit HHS to retain a current employee who has been found to violate the minimum standards of character set forth in 3207(b). Id. at 8. The Board stated that its construction of the statute was 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." Id. at 9 (citing 25 U.S.C. 3201(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 removal 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 could have been reassigned. Id. The Board therefore determined that HHS was justified in removing Ms. Delong. Id. Accordingly, it sustained the removal action. Id.

Ms. Delong petitions for review of the Board decision. We have jurisdiction pursuant to 28 U.S.C. 1295(a)(9) (1994).

DISCUSSION

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

Ms. Delong argues that the Board's interpretation of 3207 is unconstitutional because it denies her the due process protections guaranteed by the Fifth Amendment to the United States Constitution. Specifically, she contends that the Board's interpretation violates her substantive due process rights by creating an impermissible irrebuttable presumption that she is unfit for continued employment because of her past conviction. Ms. Delong argues that the Board erred in interpreting 3207 as applying to current employees whose criminal conduct occurred prior to the effective date of the Act because the statute does not contain clear language demonstrating that Congress intended the Act to have retroactive effect. She also argues that the statute should be interpreted as requiring HHS to conduct an individualized hearing to consider mitigating circumstances when a current employee is found to violate the minimum standards of character in the Act.

In response, HHS argues that the Board's interpretation of 3207 accords with the plain language of the Act. HHS asserts that the statute itself requires it to investigate the character of current employees and to ensure that all employees in covered positions meet the minimum standards of character. With respect to Ms. Delong's substantive due process argument, HHS argues that the Act's minimum standards of character bear a rational relationship to a legitimate government purpose-protecting Indian children from abuse by federal employees. Therefore, HHS contends, the Act does not violate Ms. Delong's substantive due process rights.

For the reasons set forth below, we agree with HHS that the plain language of 3207 requires that the agency apply the Act's minimum standards of character to current employees and that the agency remove from positions covered by the Act any employees who fail to meet those standards. We also agree with HHS that this interpretation of 3207 does not render the Act unconstitutional under the Due Process Clause of the Fifth Amendment.

II.

When determining the meaning of a statute, we look...