SUBJECT: Harry Peterson

DECISION

Harry Peterson (Appellant) appealed the October 1, 2001 decision of the Indian Health Service (IHS) sustaining the termination of his employment as a housekeeper at an IHS Indian health facility. IHS determined that Appellant was ineligible for employment under a federal law barring individuals with specified criminal convictions from working in positions involving contact with Indian children.

IHS's decision followed a court order that reversed the termination and remanded the matter to IHS to provide Appellant the opportunity for a hearing to challenge the termination. Pursuant to that order, IHS convened an informal but on-the-record conference with Appellant and his counsel, and then issued the written decision now on appeal. IHS delegated authority to the Board to take the appeal under the Board's procedures at 45 C.F.R. Part 16.

The record consists of IHS's final decision and the record of the informal conference, the parties' briefs before the Board, as well as an informal telephone conference with the Presiding Board Member. Based on that record, we sustain IHS's decision. We find that under applicable federal law, Appellant's criminal conviction rendered him ineligible for employment in his position, and that IHS, in applying the law, had no discretion to consider mitigating factors surrounding his conviction, such as its remoteness in time (1981), or Appellant's character and his subsequent rehabilitation.

Applicable Law and Regulations

Appellant was removed from his job pursuant to the Indian Child Protection and Family Violence Prevention Act, at 25 U.S.C. � 3207. Pub. L. No. 101-630, tit. IV, � 408, 104 Stat. 4551 (1990). Section 3207, titled "Character investigations," requires the Secretaries of the Interior and Health and Human Services to:

(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).

As in effect at the time of Appellant's removal from his job, section 3207(b) provided that:

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) 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(b).⁽¹⁾

The Bureau of Indian Affairs of the Department of the Interior published final regulations establishing minimum standards of character on June 21, 1996. 61 Fed. Reg. 32,271 (1996). IHS published proposed regulations establishing minimum standards of character similar to the Bureau of Indian Affairs standards on March 25, 1999. 64 Fed. Reg. 14,560 (1999). Final regulations had not been issued at the time of the informal conference or this appeal.

Background

Appellant was employed as a housekeeper with an IHS contractor that provided housekeeping services at the Alaska Native Medical Center (ANMC), which was an IHS facility. In 1998, the contractor, as part of IHS's implementation of the Indian Child Protection and Family Violence Prevention Act, asked Appellant to complete a form that sought information about his background. Appellant reported a 1981 conviction for assault of an adult male, for which he had served a three-month sentence and completed an alcohol rehabilitation program. Based on that conviction, the contractor, at IHS's direction pursuant to 25 U.S.C. � 3207, removed Appellant from his housekeeping job in July 1998.

Appellant challenged his removal in federal district court. In an order dated September 28, 2000 (and in an order dated November 2, 2000 on IHS's motions for reconsideration and clarification), the court found that IHS violated Appellant's right to procedural and substantive due process and remanded the matter to IHS for reconsideration. Peterson v. DHHS, No. A98-0264-CV (D. Alaska).

The court found that IHS violated Appellant's procedural due process rights by failing to provide Appellant with the opportunity for a pre- or post-termination hearing to challenge IHS's decision requiring his removal from his job. The court found that IHS violated Appellant's right to substantive due process by applying to him the "irrebuttable presumption" that his conviction rendered him unfit for employment in covered positions (ones that involve "regular contact with, or control over, Indian children" 25 U.S.C. � 3207(a)(1)), without consideration of mitigating factors such as his rehabilitation and the remoteness of the act. In making this finding, the court nevertheless determined that section 3207(b) was not unconstitutional for employing an irrebuttable presumption, and that IHS's interpretation of the statute as precluding consideration of mitigating factors was not arbitrary and capricious.

In response to IHS's argument that offering Appellant some form of hearing would not have altered the outcome because his termination was compelled by section 3207(b), the court reasoned that although IHS had no discretion to consider mitigating factors as to Appellant's assault conviction, it did have discretion to decide whether Appellant's housekeeping job with ANMC was a covered position under the statute. While finding that IHS's determination that Appellant's job was a covered position was not arbitrary and capricious, and that there were clearly reasoned bases for that determination, the court also held that this finding did not mean that Appellant, if provided a hearing, would not be able to demonstrate that his position did not involve regular contact with Indian children. Order of September 28, 2000, at 14, 20-21.

Pursuant to the court's remand, IHS held an on-the-record "informal conference," on August 1, 2001, before two IHS officials, the Area Director and the Director of Awards and Administrative Services of the IHS Alaska Area Native Health Service. During the informal conference IHS and Appellant, represented by counsel, presented witnesses and submitted documentary evidence. IHS presented evidence about how it determined that Appellant's job at ANMC was a covered position under section 3207. After hearing this evidence, Appellant, through counsel, agreed that his job was a covered position. Transcript of Informal Conference, IHS Ex. B, at 36-37. Appellant presented evidence of his character and his rehabilitation since his 1981 criminal conviction, which IHS did not dispute.

IHS issued its final written decision on October 1, 2001, upholding the termination (IHS Decision). IHS found that Appellant's housekeeping job at ANMC was a covered position, and that Appellant's criminal conviction, which he did not contest, was for an offense specified in section 3207(b).⁽²⁾ IHS found that section 3207 rendered Appellant ineligible for his housekeeping job, and that IHS had no discretion to consider mitigating factors, such as Appellant's rehabilitation, which was not questioned, or his character, which the evidence indicated was exemplary during his employment at ANMC. IHS Decision at 13. In reaching its determination, IHS noted that the district court had found that section 3207 afforded IHS no discretion to consider mitigating factors relating to Appellant's conviction. IHS Decision at 13, citing Order of September 28, 2000, at 20-21. IHS also noted that the Court of Appeals for the Federal Circuit, in a decision issued September 5, 2001, held that the clear language of section 3207 required removal of employees convicted of specified offenses and barred consideration of mitigating factors. Delong v. DHHS, 264 F.3d 1334 (Fed. Cir. 2001). Appellant timely appealed the IHS decision to the Board.

Appellant's Argument

Appellant does not dispute IHS's findings that his housekeeping job at ANMC was a position covered by the Act, and that his 1981 criminal conviction was for an offense specified in section 3207(b). Appellant also does not dispute that IHS provided him with procedural due process as required by the district court's order.⁽³⁾ Instead, Appellant, through counsel, argues that IHS violated the district court's order and Appellant's substantive due process rights by continuing to apply an irrebuttable presumption that he was barred from employment because of his criminal conviction, and by failing to consider Appellant's character and rehabilitation. Appellant also argues that civil service regulations governing employment at federal agencies required IHS to consider mitigating factors.

We find no error in the IHS Decision. We concur with IHS that the statute afforded IHS no discretion to consider Appellant's character, his undisputed rehabilitation or the remoteness of his criminal conviction, and compelled IHS to direct its contractor to remove him from his covered position as a housekeeper at ANMC.⁽⁴⁾ This conclusion is supported by the plain language of the statute, the findings of the district court, and subsequent court of appeals authority that is directly applicable here. To the extent that the district court's orders may be read as authorizing or requiring IHS to consider Appellant's rehabilitation and the remoteness of his conviction, or to retain Appellant in his housekeeping job despite his criminal conviction because of those mitigating factors, that reading is clearly countermanded by other, more explicit language of the district court, and by the subsequent court of appeals decision.

Section 3207(b) of 25 U.S.C. requires that the "minimum standards of character" for individuals appointed to covered positions "shall ensure" that none have been convicted of "any offense under Federal, State, or tribal law involving crimes of violence . . . or crimes against persons." That language plainly bars individuals with specified criminal convictions from employment in covered positions, and provides no exceptions based on an individual's character and rehabilitation, or on the remoteness in time of the conviction. Although section 3207(a) may grant IHS some discretion in developing the minimum standards of character, Congress itself in section 3207(b) prescribed minimum standards of character that must be applied regardless of the standards that IHS develops under section 3207(a), and which clearly preclude any discretion with regard to individuals who have been convicted of the offenses specified in the statute.

The district court recognized that mitigating factors do not provide a basis for permitting individuals convicted of offenses specified in section 3207(b) to be employed in covered positions. The court held that the plain language of section 3207 supported IHS's interpretation that any offense involving a crime against a person (one of the offenses specified in section 3207(b)) disqualifies an individual from a covered position, regardless of mitigating circumstances. Order of September 28, 2000, at 16, 17. The court noted that the plain language of the statute is "not ambiguous" and "precludes the consideration of mitigating factors." Id. at 16. The court further found that IHS had no express discretion under the statute to consider mitigating factors as to Appellant's assault conviction.⁽⁵⁾ Id. at 20-21.

Moreover, in Delong, the court held that the "minimum standards" of section 3207 require the removal of employees with specified convictions from covered positions, and rejected plaintiff's contention that the statute permits IHS to consider mitigating circumstances. "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." 264 F.3d at 1343. The Delong case is factually similar to this one, as the employee's disqualifying assault and battery conviction occurred some 25 years prior to the termination, and there is no indication that the federal agency questioned the employee's subsequent rehabilitation. The Delong court viewed the employee's termination as "an unfortunate result" that was required by section 3207. Id. Delong supports IHS's conclusion that it had no discretion to consider mitigating factors as a basis to retain an employee in a covered position.

Appellant argues that Delong is not applicable here because it was issued in the Federal Circuit (whose jurisdiction includes appeals from decisions of the Merit Systems Protection Board, which heard the initial appeal, under 28 U.S.C. � 1295(a)(9)). Appellant's Reply Brief (Br.) at 5, n.1. Appellant also argues that Delong is not applicable because Appellant here does not challenge the constitutionality of section 3207, as did the plaintiff in Delong. Id. These distinctions do not diminish the applicability of Delong. They do not provide a basis for us to ignore an unambiguous statement from a federal court of appeals as to the plain meaning of a law that we must apply. While the court in Delong did consider the constitutionality of section 3207, an issue not before the Board in this case, to do so the court had to address the plain meaning of section 3207. The court found that section 3207 afforded IHS no discretion to consider mitigating factors. That finding was not dependent on the context in which the case arose.

Appellant also argues that federal employment standards in the civil service regulations provide the ability to rebut past criminal convictions on a reasonable basis such as the "recency of the conduct," "age at the time of the conduct," and the "presence of rehabilitation." Appellant's Reply Br. at 4. These provisions are found at 5 C.F.R. � 731.202(c).⁽⁶⁾

The civil service regulations authorize federal agencies to dismiss (or to decline to appoint) employees to "protect the integrity or promote the efficiency of the service." 5 C.F.R. � 731.201 (2001).⁽⁷⁾ In making that determination, federal agencies are to consider specified factors that could be viewed as mitigating factors, including those that Appellant cited (the recency of the conduct, the age at the time of the conduct, and the presence of rehabilitation) to the extent they deem them "pertinent to the individual case." 5 C.F.R. � 731.202(c).

The cited provisions are, by their terms, applicable to "employment in positions in the competitive service and for career appointment in the Senior Executive Service . . . pursuant to 5 U.S.C. 3301 . . ." 5 C.F.R. � 731.101(a). Section 3301 of 5 U.S.C. addresses employment in the civil service in the executive branch. Here, Appellant was employed by a private contractor, and it has not been shown that these provisions were applicable to his position.

Even if applicable, however, they would not alter the result, in light of the clear requirements of section 3207. IHS has made no determination under the civil service regulations regarding Appellant's fitness for employment to which it could then apply mitigating factors listed therein. Instead, Congress in section 3207 mandated that persons with specified criminal convictions may not hold positions that place them in regular contact with Indian children, and made no provision for agencies to grant exemptions from the law's operation based on mitigating circumstances. In light of the clear direction from Congress, the factors specified in 5 C.F.R. � 731.202(c) are not pertinent to this case. Such factors are not relevant where Congress has already determined that they not be considered. The Court of Appeals for the Federal Circuit employed similar reasoning in considering the application of a statute that bans from federal employment any employee who participates in a strike against the federal government, and a policy banning striking air traffic controllers from subsequent employment with the Federal Aviation Administration. The court noted that asking that agency to consider the mitigating factors of 5 C.F.R. � 731.202(c) was tantamount to asking that it "depart from legal requirements." Korte v. OPM, 797 F.2d 967, at 971 (Fed. Cir. 1986). Here, application of those mitigating factors would similarly be contrary to Congress's clear direction in section 3207.

Conclusion

Based on the analysis above, we uphold the IHS Decision.

Donald F. Garrett

M. Terry Johnson

Marc R. Hillson
Presiding Board Member

1. On December 27, 2000, section 3207(b) was amended by replacing "any offense" with "any felonious offense, or any of two or more misdemeanor offenses," and adding offenses committed against children. As we note below, those changes do not affect this case.

2. IHS also noted that Appellant's conviction, for third-degree assault, was a felony that would also have precluded him from employment under the December 2000 amendment to section 3207. IHS Decision at 14. Thus, the amendment is not relevant to our decision.

3. Such an argument would be unavailing, as the record of the informal conference demonstrates that IHS ensured Appellant's procedural due process rights in compliance with the court's remand. At that conference, Appellant appeared represented by counsel, and was able to present witnesses and documentary evidence on his behalf, and cross-examine the witnesses presented by IHS. The IHS Decision issued after the conference clearly explained the bases for IHS's conclusions that Appellant's job was a covered position, and that IHS was precluded by the statute from retaining Appellant in his housekeeping position based on his rehabilitation and character, which IHS did not question. Moreover, Appellant has had the opportunity for a de novo review before this Board.

4. The record indicates that Appellant was subsequently rehired at ANMC in a position that does not involve contact with Indian children. Order of September 28, 2000, at 3.

5. There is language in the district court's orders that could be read as holding that IHS had discretion to employ Appellant in a covered position despite his conviction for an offense specified in section 3207(b), based on mitigating circumstances. The district court held "in applying its interpretation of Section 3207(b)," IHS "violated [Appellant's] substantive due process rights." Order of November 2, 2000, at 3-4; see also Order of September 28, 2000, at 19. This characterization of the bar, in section 3207(b), on employing individuals with specified convictions in covered positions as an IHS interpretation could be read as implying that IHS could alter its interpretation and consider mitigating factors surrounding Appellant's conviction. However, any implication of agency discretion to consider mitigating factors is countermanded by other language of the district court, that section 3207 precludes the consideration of mitigating factors, and was expressly rejected by the Court of Appeals for the Federal Circuit in Delong.

6. While Appellant cited 5 C.F.R. � 731.301(c) for the cited language, it appears in 5 C.F.R. � 731.202(c).

7. The civil service regulations at 5 C.F.R. Part 731 were amended in December 2000. 65 Fed. Reg. 82,239 (2000). The specific mitigating factors in section 731.202(c) that Appellant cited in his brief are unchanged.