Federal Law Enforcement Position + Felony Conviction = Mandatory Removal

The U.S. Border Patrol removed one of its agents as the result of a criminal plea deal made in Arizona state court. (Canava v. Department of Homeland Security (CAFC No. 2015-3083, 4/5/16)). He unsuccessfully challenged his removal before an arbitrator and the appeals court. Here is how the court reported the pertinent facts.

Faced with an indictment on two felony counts three years ago, Canava copped a plea to “Amended Count One: Unlawful Imprisonment by Strangulation, Domestic Violence, a class six undesignated offense.” (Opinion p. 2) The Arizona court accepted the deal and entered judgment against Canava.

Ten days after the court entered this judgment, the Department of Homeland Security proposed Canava’s removal in accordance with 5 U.S.C. 7371, a federal law requiring removal of a federal law enforcement officer convicted of a felony. Not so fast, Canava argued, insisting that this law did not apply because his conviction was for an “undesignated offense,” not a felony. (p. 2)

DHS did not see it that way and removed him. An arbitrator agreed, finding Canava had been convicted of a felony, and sustaining his removal. (p. 3)

Canava took his argument to the appeals court, which has now sided with the agency and Arbitrator Samuel Vitaro, and upheld the decision to remove him.

The court explains that federal law does not give agencies a choice in that it “requires the mandatory and immediate removal of a law enforcement officer who is convicted of a felony.” (pp. 3-4) In fact, removal must be effective “on the last day of the first applicable pay period following the conviction notice date…” or the date when the agency is informed of the conviction. Underscoring the seriousness of the situation, the law further requires that removal is required, even if an appeal of the conviction is pending. (p. 4)

The court did not buy Canava’s argument that an “undesignated offense” is not a felony within the meaning of the Federal mandatory removal law. The court agreed with the arbitrator that the conviction in this case was for a class six felony under application of Arizona law.

As the court explains in its opinion, it used to be that it was within the agency’s discretion to remove a law enforcement officer who was convicted of a felony. Apparently unhappy with how agencies were exercising this discretion, Congress took it away when it amended this law in 2000. Now agencies have no discretion. Removal is required and must be immediate. (p. 3)

Canava v. DHS (2015-3083)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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