White v. Department of Justice

• Decision Date: 12 May 2003
• Docket Number: No. 02-3329.,02-3329.
• Citation: 328 F.3d 1361
• Parties: James A. WHITE, Jr., Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1361

328 F.3d 1361

James A. WHITE, Jr., Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.

No. 02-3329.

United States Court of Appeals, Federal Circuit.

May 12, 2003.

Thomas H. Roberts, Thomas H. Roberts & Associates, P.C., of Richmond, Virginia, argued for petitioner.

Harold D. Lester, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With him on the brief were David M. Cohen, Director; and Erin E. Powell, Trial Attorney.

Before MAYER, Chief Judge, MICHEL and PROST, Circuit Judges.

Opinion for the Court filed by Circuit Judge MICHEL. Dissenting opinion filed by Chief Judge MAYER.

MICHEL, Circuit Judge.

James A. White, Jr. petitions for review of a final decision by the Merit Systems Protection Board ("Board") sustaining the action by the Department of Justice removing him from his position as a GS-07 Correctional Officer at the Federal Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia. White v. Dep't of Justice, No. DC-0752-01-0556-I-1, 2002 WL 1018567 (M.S.P.B. May 13, 2002). Because we conclude that White must be deemed to have been convicted of "a misdemeanor crime of domestic violence" under 18 U.S.C. § 921(a)(33) and that Warden Joseph M. Brooks ("the Warden"), the deciding official, therefore correctly concluded that White was prevented by 18 U.S.C. § 922(g)(9) from meeting the requirement of his position description that he be legally eligible, annually re-certified and authorized to carry a firearm, the Board's decision is in accordance with law. As the Board's decision also is supported by substantial evidence, we affirm.

Background

On November 16, 2000, White pled guilty to a February 2000, misdemeanor simple assault, Virginia Code Section 18.2-57, of Sonja Miles, with whom he had a close personal relationship. Section 922(g)(9) makes it a criminal offense for those who have been convicted of "a misdemeanor crime of domestic violence" to possess or receive firearms. On February 21, 2001, White was issued a notice of proposed removal. On May 15, 2001, White was removed from his position by the Warden on behalf of the Department of Justice ("the agency") based on a charge of "Loss of Qualifications-Inability to Possess a Firearm." On review of White's "adverse action file" and White's reply to the proposed removal, the Warden concluded that it was illegal for White to carry a firearm and that he therefore could not perform the full range of his duties as a prison guard. See White v. Dep't of Justice, No. DC-0752-01-0556-I-1, slip op. at 2 (M.S.P.B. Sept.27, 2001) ("Initial Decision"). Before the Board, White challenged, inter alia, the conclusion that his conviction was for a "misdemeanor crime of domestic violence" under § 922 since he was convicted only of simple assault after the original charge of domestic assault was reduced prior to his plea of guilty. He also maintained that even if such a conviction generically so qualified, his own factual circumstances did not warrant such a conclusion because his relationship with Ms. Miles would not, under Virginia law, be considered a common-law marriage. Id.

The Board upheld the agency's decision because of clear evidence of White's job requirement to carry a firearm, of his spouse-like relationship with Ms. Miles, and of his misdemeanor assault conviction. According to the Board, the petitioner's position description showed that he would, on occasion, "be authorized to carry firearms and to use physical force, including deadly force, to maintain control of inmates." Id. at 3. In addition, he was required annually to be re-certified for firearms proficiency. From this, the Board concluded that the legal disability to meet this job requirement created a sufficient nexus between the efficiency of the service and the agency's action for the Board to sustain the removal under 5 U.S.C. § 7513. Id. at 12. The Board also concluded that the agency's choice of removal as the penalty was reasonable under § 7513, based on all of the evidence, including a review of the deciding official's decision letter and hearing testimony, both to the effect that White's inability to meet this condition of continued employment left no alternative but removal. Id. at 13. The foundations of the Board's holding were that 18 U.S.C. § 921(a)(33), which defines what constitutes "a misdemeanor crime of domestic violence," encompassed White's conviction and that neither § 921 nor § 922 was unconstitutionally vague. Id. at 7.

Discussion

This appeal requires two different inquiries. First, as a threshold matter, we must analyze and construe the operative term of § 922(g)(9), "of domestic violence," which is defined in § 921(a)(33), to determine whether § 922(g)(9) applied to and, therefore, constrained White. This threshold inquiry actually has two subparts: (A) construing the meaning of the statutory definition; and (B) determining factually its applicability to White. Beyond this threshold matter, the second inquiry, and the real heart of this case, is whether or not the Board's decision affirming the Warden's removal of White was otherwise proper. Although affected by the results of our first inquiry, this second inquiry requires separate analysis under personnel law, as this is an appeal over a personnel action, and not a criminal conviction under § 922.

I.

A.

We first address whether White's conviction for simple assault rather than domestic violence meets the definition in § 921(a)(33) of "a misdemeanor crime of domestic violence" as that term is used in § 922 (emphasis added), given the ample, separate proof that the victim of White's assault was his long-time paramour. If so, then he is constrained by § 922. White, however, argues that he is not so constrained in view of his "acquittal" on the charge of misdemeanor domestic violence (Virginia Code Section 18.2-57.2) and guilty plea only to the reduced charge of misdemeanor simple assault (Virginia Code Section 18.2-57). We conclude that he is mistaken. Reviewing the grammar of § 921(a)(33)(A)(ii) and reading the statute in light of clear and explicit legislative history compel us to conclude, as have other circuits, that the statute includes convictions for crimes that do not incorporate a domestic relationship as an element, so long as the agency's proof establishes a domestic relationship as described in § 921(a)(33)(A)(ii), because in light of the legislative history the only statutorily-required element is violence or the threat thereof.

Section 922(g)(9) prohibits certain convicts from receipt or possession of a firearm, providing:

(g) It shall be unlawful for any person —

....

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(9) (2000) (emphases added). A "misdemeanor crime of domestic violence" is defined in 18 U.S.C. § 921(a)(33) as:

(33) (A) Except as provided in subparagraph (C), the term "misdemeanor crime of domestic violence" means an offense that —

(i) is a misdemeanor under Federal or State law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

18 U.S.C. § 921(a)(33) (2000) (emphases added).

Whether § 921(a)(33)(A)(ii) requires that a domestic relationship be an element of the crime is not a question of first impression nationally, but it is for our court. The government has brought to our attention a significant and consistent body of case law in other circuits addressing that very issue. For example, in United States v. Barnes, 295 F.3d 1354, 1360-61 (D.C.Cir. 2002), the United States Court of Appeals for the District of Columbia Circuit set forth an exhaustive linguistic analysis of the text of the statute to determine whether the plain meaning of the text requires that the offense on which § 922(g)(9) criminal liability is predicated must itself include, as an element, the domestic relationship described in § 921(a)(33)(A)(ii). The use in § 921(a)(33)(A)(ii) of the singular word "element" instead of the plural, and the impossibility of the clause in § 921(a)(33)(A)(ii) beginning with "committed" to be construed as modifying the clause beginning with "the use or attempted use" are among the grammatical indications cited by the court. Id. at 1358, 1360. Specifically the court reasoned that:

[it] must determine if "committed by" can, consistent with its meaning, modify "use of force." The verb "commit" means "to do (something wrong or reprehensible), to perpetrate, be guilty of (a crime or offence, etc.)." Oxford English Dictionary 559 (2d ed.1989)(emphasis added). The use of force is not "committed," "done" or "perpetrated." An "offense" is "committed" or "perpetrated." And here, the offense of a "misdemeanor crime of domestic violence" must be committed by a person in one of the specific relationships. Subpart (ii) of section 921(a)(33)(A) is not a complete sentence — subsection 921(a)(33)(A) is itself one sentence that begins with "except as otherwise provided in subparagraph (C), the term `misdemeanor crime of domestic violence' means an offense that —" and continues through subparts (i) and (ii). In short, a "misdemeanor crime of domestic violence" means an offense that is a misdemeanor, has, as an element, the use of force and was committed by a person with the requisite relationship. An illustration using...