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2450

Relief by Exemption from Disability in a Particular Prohibited Position

An individual convicted of a disqualifying crime committed on or after November 1, 1987, may file with a United States district court a petition for exemption from prohibited service in a particular capacity. If the petitioner was convicted of a disqualifying Federal offense, the petition is directed to the sentencing judge. If the petitioner was convicted of a disqualifying state or local offense, the petition is directed to the United States district court for the district in which the offense was committed.

In the case of an individual convicted of a disqualifying crime committed before November 1, 1987, the United States Parole Commission will continue to process such exemption applications of convicted individuals. Unlike relief by reduction of the length of disability, there is no three-year waiting period for an exemption from disability in a particular prohibited position.Before an exemption from disqualification in a particular prohibited capacity may be granted, the district court (or Parole Commission) must make a statutory determination, following a hearing upon notice to the Secretary of Labor and the appropriate state or Federal prosecuting official in the jurisdiction(s) where the individual was convicted, that the convicted individual's service in a particular prohibited position is not contrary to the purposes of the Labor-Management Reporting and Disclosure Act (LMRDA), for petitions under 29 U.S.C. § 504, or of Title I of the Employee Retirement Income Security Act (ERISA) with respect to petitions under 29 U.S.C. §  1111.

The Sentencing Commission has adopted the United States Parole Commission's criteria for relief for use by the district courts. Relief from the Disability Pertaining to Convicted Persons Prohibited from Holding Certain Positions, Policy Statement Sec. 5J1.1, United States Sentencing Commission, Guidelines Manual (Effective June 15, 1988). Accordingly, relief shall not be given to aid rehabilitation, but may be granted only following a clear demonstration by the convicted individual that he or she has been rehabilitated since commission of the disqualifying crime and can therefore be trusted not to endanger the organization in the position for which he or she seeks the exemption from disability. Accord Nass v. Local 348., Warehouse Production, Sales and Services Employees, 503 F. Supp 217 (E.D.N.Y. 1980), aff'd without opinion, 657 F.2d 264 (2d Cir. 1981).

[cited in Criminal Resource Manual 2446; USAM 9-138.100; USAM 9-138.180]