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2452. Relief By Full Restoration Of Citizenship Rights Revoked As The Result Of A Disqualifying Conviction

Both LMRDA section 504 and ERISA section 411 provide for complete relief from their respective employment disabilities if, prior to the end of the disability period, the disqualified person's "citizenship rights, having been revoked as a result of such conviction, have been fully restored." 29 U.S.C. §§ 504(a)(A) and 1111(a)(A).

Full Restoration of Rights Lost by Conviction of Federal Crimes

Although a Federal conviction does not result in any broad revocation of rights derived from Federal citizenship, certain statutes revoke particular Federal rights and privileges upon conviction for specified offenses. See, for example, the right to serve on a Federal jury (28 U.S.C. §  1865) and right to hold Federal office or employment (18 U.S.C. §§  201, 593, 1901, 2071, 2381, 2383, 2385, 2387). The fact that a convicted Federal offender may have his revoked citizenship rights in a particular state restored to him does not "fully" restore his citizenship rights lost as a result of Federal conviction. See Viverito v. Levi, 395 F. Supp. 47, 48 (N.D. Ill. 1975), denying employee benefit plan employment under 29 U.S.C. §  1111 to an individual who had been convicted in Federal court of conspiracy and bank embezzlement despite the restoration of rights lost in Illinois. The court noted that the disqualified individual was free to pursue alternative relief under 29 U.S.C. § 1111 in the form of an exemption from the disability for service in a particular prohibited capacity. Id. at 49. For an analogous statutory scheme and result, see Beecham v. United States, 511 U.S. 368, 114 S.Ct. 1669, 1671, 128 L.Ed.2d 383 (1994), where the Court held that because the exemption of convicted persons from the firearms disability, in the Firearms Owners Protection Act (18 U.S.C. § 921(a)(20)), by restoration of "civil rights" is governed by the law of the convicting jurisdiction, convicted Federal offenders were not entitled to relief by having obtained state restoration of revoked civil rights outside the convicting jurisdiction.

Full Restoration of Rights Lost by Conviction of State Crimes

When it enacted 29 U.S.C. §§ 504 and 1111, Congress did not specifically define the revoked "citizenship rights" which need to be fully restored in order to relieve a disqualified person of the statutory employment disabilities. However, Congress did reject a statutory scheme which would have based disqualification simply on the eligibility to vote in a particular state. 105 Cong.Rec. 1596-97 (1959) (remarks of Congressman Loser) cited in Harmon v. Teamsters Local 371, 832 F.2d 976, 978 (7th Cir. 1987).

Moreover, the term "citizenship rights" may be interpreted as referring to more than traditional "civil rights" such as the right to vote, hold public office, and serve as a juror. Compare, for example, United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990), interpreting the exemption from the Federal firearms disability as requiring a restoration of "civil rights" consisting of "the right to vote, the right to seek and hold public office and the right to serve on a jury" as contrasted with a "full" restoration of "all rights and privileges" in the jurisdiction of conviction. Id. at 549.

Although not a judicially settled question, it may be argued that Congress intended that a full restoration of citizenship rights would depend upon the convicting state's restoration of all those revoked rights which the state itself had conferred on its citizens. At a minimum, such rights would include traditional political civil rights of state citizens within their respective states governing voting, officeholding, etc. Other rights may include rights of the kind protected by Article IV, Section 2, of the Constitution, as "Privileges and Immunities of the Citizens in the several states," such as rights pertaining to professional licensing, commercial occupations and property ownership, for example. See Supreme Court of Virginia v. Friedman, 487 U.S. 59, 64-66, 108 S.Ct.2260, 2264-65 (1988) and cases cited in that decision.

However, because Congress recognized that some states do not revoke or restore citizenship rights of disqualified criminal offenders, the absence of a revocation or restoration procedure has no effect on the operation of the disability on the convicted person. Harmon v. Teamsters Local 371, supra at 979 (holding that the Iowa procedure for first offenders, which did not treat a defendant's notation of guilt as a conviction in Iowa, was a conviction for purposes of 29 U.S.C. §§ 504 despite the absence of any resulting revocation or restoration of citizenship rights under Iowa law).


Prior Rehabilitation

Congress also intended that a restoration of citizenship rights include an implicit requirement of rehabilitation and trustworthiness to hold a position otherwise prohibited by the disability statutes. Nass v. Local 348, 503 F. Supp. 217 (E.D.N.Y. 1980), aff'd without opinion, 657 F.2d 264 (2d Cir. 1981) (holding that a state court's issuance of a certificate of relief from civil disabilities on the day of sentence was only an aid to rehabilitation, as contrasted with evidence of prior rehabilitation, and did not indicate the trustworthiness sufficient to lift the section 504 disability).

[cited in JM 9-138.100; JM 9-138.180]

Updated January 17, 2020