Petition for Writ of Certiorari — Wagner v. Office of Personnel Management

. F m | ) pms ‘

85 oo | 2m Supreme Court, U.S,

898 is RILED

MAY 192 i986

JOSERH-F. SPANIOL, JR.

CLERK

IN THE SUPREME COURT OF THE U =

OCTOBER TERM, 1985

JOSEPH C. WAGNER, JR. AND JEFFERY L. ATCHLEY,

Petitioners,

V.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

DAN M. NORWOOD

BYRD, COBB, NORWOOD, LAIT, DIX

AND BABAOGLU

99 North Third Street

Memphis, Tennessee 33103

(901) 523-0301

Attorneys for Petitioners

ree net ewe ee oo ee

QUESTIONS PRESENTED

Whether the Office of Personnel Management (OPM)

interpretation and application of the Presidential

Directive of December 9, 1981 barring former air traffic

controllers fired for striking in August, 1981 from

reemployment with the Federal Aviation Administration

so aS to impose the bar for more than three years was

unreasonable or in excess of its authority under 5

U.S.C. $7311.

TABLE OF CONTENTS

Page

EE i tee eee eesecesey 2

ee on ep beac escesseees 2

CA as Wek 65 obs ee we nes c's 2

STATUTES AND REGULATIONS, ................ 3

STATEMENT OF THE CASE,.................. 4

REASONS FOR GRANTING THE WRIT ........... 7

I. OPM's Imposition of an Indefinite

Bar Against Former Employees Fired

for Striking Against the Federal

Government is Contrary to Law.............. 8

Il. OPM's Interpretation of 5 U.S.C.

§7311 as Imposing an Indefinite Bar

Against Former Employees Fired for

Striking Against the Federal

Government Is Not Reasonable Since

Such an Interpretation Is_ In

Contradiction of Previous OPM

Interpretatins that the Statute Only

Imposed a Maximum Three Year Bar... 18

Ee 23

EO ere TTTCere 25

atin

TABLE OF AUTHORITIES

PAGES

CASES

Fleischman Construction Co. v.

United States

ek Se BG PN eee ere Se eee ee 11

Harrison v. Northern Trust Co.

BEe Cee ee COs ih he bb ube ek eee eaeas )

Holy Trinity Church v. United States

Se Se Oe SOON 6g vce ced eee edckxn i ee

Howe v. Smith, 452 U.S. 473 (1981)........ 16,17

Law Ow Bew v. United States,

a Se nines bee weeestaeen ne 1l

McLaren v. Fleischer,

Se Wy EE ch cg ea ence ee 19,21

Oates v. National Bank,

thins Bas Mh cco hn: cutsinn st CTC TER PTE eee 15

Udall v. Tallman, 380 U.S. 1 (1965)... 6... 20

United States v. American Trucking

Association, 310 U.S. 534 (1940)... .... 0... 12

United States v. Brown,

eS eB er ee ar 13

United States v. Dickerson,

Fee ee ee a ea eee eae 9

United States v. Dotterweich,

oe | er ll

United States v. Fisher,

6 U.S. (2 Cranch) 358 (1805)... ...... wd... 10

-iii-

PAGES

CASES

United States v. Kirby,

74 U.S. (7 Wall.) 482 (1869) 10,12

United States v. Public Utilities

Comm., 345 U.S. 295 (1953) .. ee 10

United States v. Turkette,

Youngstown Sheet and Tube Co.

v. Sawyer, 345 U.S. 579 (1952) 22

Zenith Radio Corp. v. United States,

437 U.S. 443 (1978) 21

STATUTES AND REGULATIONS

Se cs hic awe teks cae 3

Scr caernncneg CORE TORT 3,5,6,7,8,13,18, 20,22

ag ogi Magy EOC ES I PE LT Loo 6

29 U.S.C. 188 (Repealed 1955) °° 0 8,14

Federal Personnel Manual, Chapter 731,

ee eg or i ewcewaneaues 18

Federal Personnel Manual, Chapter 731,

eee © TO ea kidcceuackscuewn 18

ee eee 7

Becta Bian ruan scl PRC TORO Te OEE 3,7

EXECUTIVE ORDERS AND STATEMENTS

President Ronald Reagan, Statement on

Federal Employment of Discharged Air

Traffic Controllers, 17 Weekly Comp. of

Pres. Doc. 1364 (Dec. 9, 1981), .6,7,18,19, 21, 22

-iv-

PAGES

LEGISLATIVE HISTORY

Hearings before the Committee on Post

Office and Civil Service, U. S. House of

Representatives, 84th Congress, June 22,

1955 14

"VS 8 Beee@ttrtse sie gsee~1@ect £28 8686 86882 68.8 6 2 6

U. S. Code and Cong. & Admn. News, 84th

Congress, Ist Sess., 1955

-V-

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

JOSEPH C. WAGNER, JR. AND JEFFERY L. ATCHLEY,

Petitioners,

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Joseph C. Wagner, et al, petition for a writ of

Certiorari to review the judgment of the United States

Court of Appeals for the Federal Circuit in this case.

QUESTIONS PRESENTED

Whether the Office of Personnel Management (OPM)

interpretation and application of the Presidential

Directive of December 9, 1981 barring former air traffic

controllers fired for striking in August, 1981 from

reemployment with the Federal Aviation Administration

so as to impose the bar for more than three years was

unreasonable or in excess of its authority under 5

U.S.C. $7311.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Federal Circuit is reprinted as Appendix A to

this petition and is published at 783 F.2d 1042 (1986).

The opinion of the United States Merit Systems

Protection Board is reprinted as Appendix B to this

Petition.

JURISDICTION

The opinion and judgment of the Court of Appeals

was entered on February 18, 1986 (Appendix A). The

jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

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STATUTES AND REGULATIONS

5 U.S.C. §3301. Civil Service; generally

The President may -

(1) prescribe such regulations for the admission

of individuals into the civil service into the

executive branch as will best promote the

efficiency of that service;

(2) ascertain the fitness of applicants as to age,

health, character, knowledge, and ability for the

employment sought; and

(3) appoint and prescribe the duties of individuals

to make inquiries for the purpose of this section.

5 U.S.C. §7311 - Loyalty and striking

An individual may not accept or hold a position

in the Government of the United States... if

he ...- (3) participates in a strike ... against

the Government of the United States...

5 C.F.R. §731.303 - Debarment

When a person is disqualified for any reason

named in § 731.202, OPM, in its discretion, may

deny that person examination for and

appointment to a competitive position for a

period of not more than 3 years from the date

of determination of disqualification. On

expiration of the period of debarment, the person

7

who has been debarred may not be appointed to

any position in the competitive service until his

fitness for appointment has been redetermined

by OPM.

STATEMENT OF THE CASE

The named Petitioners Wagner and Atchley applied

to the Federal Aviation Administration (FAA) for

appointment as air traffie controllers. The FAA

forwarded their applications to the OPM, which denied

them a favorable suitability determination. The effect

of the denial was to bar them from obtaining positions

as air traffic controllers with the FAA.

The OPM denied the petitioners a favorable

suitability determination based on a December 9, 1981

Presidential directive which OPM _ interpreted as

imposing an indefinite bar against former air traffic

controllers fired for striking in August, 1981 from

reemployment with the FAA. Wagner and Atchley

appealed the OPM action to the Merit Systems

Protection Board where the case was certified as a

class action on behalf of more than 400 former air

4

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traffic controllers who, after their discharge for

participation in the 1981 strike, were denied favorable

suitability determinations by OPM.

Before the Board the case was submitted to the

presiding official based upon written submissions by

the parties. The parties stipulated that "OPM found

each of the appellants to be unsuitable based solely on

a determination that they had been removed from their

positions with the FAA for striking in August 1981"

and "based on its interpretation of the President's

directive of December 9, 1981."

The presiding official affirmed the OPM decision

indefinitely debarring appellants as unsuitable for FAA

employment. The presiding official held (1) that the

bar upon employment by persons who struck against

the government that 5 U.S.C. § 7311 (1982) imposes is

not limited to three years, and (2) that OPM correctly

interpreted the President's December 9, 1981 directive

as imposing an indefinite bar upon employment by the

FAA of former air traffic controllers who were fired

for striking.

Since petitioners did not seek review by the Board,

the presiding official's decision became a final decision

-5-

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and petitioners then filed a petition for review of the

Board's decision by the Court of Appeals pursuant to

5 U.S.C. §7703.

Petitioners challenged the Board's decision on the

grounds (which are the issues the parties stipulated

the Board was to decide) (A) that OPM incorrectly

interpreted the presidential directive as imposing an ind

efinite ban upon the employment by the Administration

of the former controllers, and (B) that if the

presidential directive did impose such a ban, it was

illegal because it was inconsistent with 5 U.S.C. §

7311, which the petitioners interpret as barring strikers

from federal employment for only three years.

The Court of Appeals affirmed the Board decision

by ruling there was "no basis for rejecting the OPM's

interpretation of the presidential directive as imposing

an indefinite ban upon employment of the striking

controllers by the Administration". In addition, the

Court ruled that 5 U.S.C. § 7311 does not limit the

prohibition against reemployment of strikers to three

years as petitioners contend.

REASONS FOR GRANTING THE WRIT

The Court of Appeals below decided on important

question of federal law which has not, but should be,

settled by this court. After reviewing 5 U.S.C. § 7311,

its legislative history and 5 C.F.R. Part 731

implementing § 7311, the court found that OPM's

barring former air traffic controllers fired for striking

in August, 1981 from reemployment with the FAA for

more than three years was not contrary to the intent

of Congress found in 5 U.S.C. § 7311. The court

likewise found that OPM's interpretation of the

presidential directive of December 9, 1981 as lifting

the normal three year bar for non-FAA jobs but

imposing an indefinite bar from FAA jobs’ was

reasonable. Petitioners submit that the court erred

by not finding that for the OPM to interpret the

presidential directive so as to impose an "indefinite"

bar was to act contrary to law since congress in

enacting 5 U.S.C. § 7311 intended only a three year

bar. Indeed, even OPM, prior to the December 9, 1981

presidential directive, had interpreted § 7311 as

imposing a maximum three year bar. 5 C.F.R. 731.303.

For these reasons, the court below should have found

-_—

years by the United States or any such agency.

Section 188 was repealed on August 9, 1985 and was

replaced by 5 U.S.C. § 7311. The clear words of 5

U.S.C. § 7311 authorized no indefinite bar and nothing

whatsoever in the legislative history of the repeal of

this section indicates that Congress ever intended to

eliminate the prior three year limitation or to blacklist

any federal employees for life.

The Court and MSPB below, adhering to a literal

and constricted view of the "plain meaning rule"

legislative history that is contrary to OPM's imposition

of an indefinite bar. In the controllers' case, just as

the Supreme Court said in United States v. Dickerson,

310 U.S. 554, 562, (1943), "The very legislative

materials" which Defendants "would exclude [from

consideration) refute [their] assumption" about the

meaning of the words of the statute. This Court went

on in Diekerson to say

It would be anomalous to close our minds to

persuasive evidence of intention on the ground that

reasonable men could not differ as to the meaning

of the words. Legislative materials may be without

probative value, or contradictory or ambiguous, it

is true, and in such cases will not be permitted to

control the customary meaning of words or overcome

rules of syntx or construction found by experience

to be workable; [Emphasis added and citation

omitted.]

-9-

The meaning to be ascribed to an Act of Congress can

only be derived from a considerable weighing of every

relevant aid to construction."

As Chief Justive John Marshall wrote in United

States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805):

"Where the mind labours to discover the design of the

legislature, it seizes everything from which it can be

derived..." The age-old, outworn rule of "strict

constructionism" or the "plain meaning rule", has long

been supplanted byes restrictive rules of federal

statutory construction. Use of legislative history to

determine Congressional intent is appropriate where

"the literal words would bring about an end completely

at variance with the statute." United States v. Public

Utilities Commission, 345 U.S. 295, 315, (1953). "All

laws should receive a sensible construction," avoiding

"injustice, oppression or an absurd consequence. It

will always, therefore, be presumed that the legislature

intended exceptions to its language, which would avoid

results of this character. The reason of the law in

such cases should prevail over its letter." United States

v. Kirby, 74 U.S. (7 Wall.) 482, 486-87 (1869). "Nothing

is better settled than that statutes should receive a

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sensible construction, such as will effectuate the

unjust or absurd conclusion." Law Ow Bew v. United

States, 144 U.S. 47, 12 S.Ct. at 520 (1892). See also

Fleischmann Construction Co. v. United States, 270

U.S. 349, 360, 46 S.Ct. at 289 (1926).

In light of its application to the nation's air traffic

control system, the application in this case of this

legislation "touchles] phases of the lives and health of

people which, in the circumstances of modern

industrialism, are largely beyond self-protection.

Regard for these [implications] should infuse

construction of the legislation if it is to be treated as

a working instrument of government and not merely as

a collection of English words. United States v.

Dotterweich, 320 U.S. 277, 280, 64 S.Ct. 134, 136 (1943).

When plain meaning "has led to absurd or futile

results ... the Supreme Court has looked beyond the

words to the purpose of the act. Frequently, however,

even when the plain meaning did not produce absurd

results but merely an unreasonable one 'plainly at

variance with the policy of the legislation as a whole’,

this Court has followed that purpose, rather than the

-11-

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literal words." When aid to construction of the meaning

of words, as used in the statute, is available, there

certainly can be no ‘rule of law' which forbids its use,

however clear the words may appear on ‘superficial

examination.'" United States v. American Trucking

Associations, 310 U.S. 534, 543-44 (1940).

Often federal courts have declined overzealous

government invitations to follow rigid and overly literal

interpretations of statutes, thus preventing and avoiding

harsh, unfair, unjust and absurd results. See, e.g. Holy

Trinity Church v. United States, 143 U.S. 457 (1892),

reversing a prosecution for an employment contract

with a British cleric alleged to violate a law intended

only to combat alien contract labor. In the same spirit

is the case of United States v. Kirby, 74 U.S. (7 Wall.)

483 (1868), involving a prosecution for interference

with the U. S. Mails of State law enforcement officers

who were doing their duty by arresting a mail carrier

for murder.

Though using only the literal language of laws

considered in Holy Trinity Church and Kirby would

have called for Draconian measures and resulting unjust

and absurd results from the U. S. Government, the

-12-

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United States Supreme Court in its wise and often-

used words, found that "a thing may be within the

letter of the statute and yet not within the statute,

because not within its spirit, nor within the intention

of its makers." Holy Trinity Church, 143 U.S. at 459.

So, too, the OPM's interpretation of § 7311 in this

ease is "not within [§7311's] spirit, nor within the

intention of its makers." Id.

"The liberty of the individual must be scrupulously

protected ... the safeguards of cherished rights are not

to be found in the doctrinaire application of the tenet

of strict constructin." United States v. Brown, 333

U.S. 18, 27 (1947), (holding "no rule of construction

necessitates our acceptance or an_ interpretation

resulting in patently absurd consequences.") As the

Supreme Court said in Harrison v. Northern Trust Co.,

317 U. S. 476, 479 (1943), "words are inexact tools at

best and for that reason there is wisely no rule of law

forbidding resort to explanatory legislative history no

matter how 'clear the words may appear on superficial

examination."

In the hearing before the House of Representatives'

Committee on Post Office and Civil Service on the

-13-

proposal to replace 29 U.S.C. § 188 with 5 U.S.C. §

7311, Congressman Bennett, the sponsor of H.R. 6590

(the bill which ultimately became 5 U.S.C. § 7311) said:

"I urge the committee to report favorably on

H.R. 6590, which puts in permanent form the

policy of Congress which is now found in

temporary legislation passed from time to time

in the last 15 years. H.R. 6590 also corrects

imperfections in previous. legislation and

reasserts the fundamental principle that the

appropriate legislative committee should

supervise the enactment of all legislation under

its jurisdiction. Preserving this principle is in

the public and national interest."

Hearing before the Committee on Post Office and Civil

Service, U. S. House of Representatives, 84th Congress,

June 22, 1955 at 10.

Throughout the committee's consideration of the

measure, there were statements by legislators that

establish that Congress' intent in repealing 29 U.S.C.

§ 188 was only to codify this section permanently and

not to change the three-year limitation. Congressional

intent is also evidenced by the letter from the Chairman

of the U. S. Civil Service Commission to the House

Chairman of the Committee on the Post Office and

Civil Service, in which the following reasoning appears:

Section 305 of the Labor Management Relations

Act forbids striking by Government employees,

requires the discharging of an employee who

-14-

strikes and the forfeiture of his civil service

status, if any, and makes him ineligible for

employment for 3 years.

For some years provisions similar to the proposed

legislation have appeared in appropriation acts

each year. The Commission believes that HR

6590 [now 5 U.S.C. § 7311] represents desirable

legislation, since it would put such legislation

into permanent form, and would also consolidate

and supersede the several statutes which now

partially cover the subject. [emphasis added.]

U. S. Code Cong. & Adm. News, 84th Congress, Ist

Session, 1955, 2874-2876. Very persuasively, even the

Department of Justice, in an opinion sent to the House

Committee Chairman from the then Attorney general

William P. Rogers, found that 29 U.S.C. § 188 would

remain unchanged. U. S. Code Cong. & Adm. News,

48th Congress, Ist Session, 1955, 2876. in summary,

the legislative history plainly proves Congress intended

the bar from employment with the FAA to be limited

to three years.

In light of the manifest intent of Congress, the

court below should have avoided "adhering too rigidly

to the mere letter of the statute or to technical rules

of construction," Oates v. National Bank, 100 U.S. 239,

244 (1879), and, therefore, the court's interpretation

should be reversed. The Controllers respectfully

*

contend the clear, unequivocal purpose of the Congress

in passing the section of law relied upon by OPM was

merely to codify existing law -—- and not to impose a

lifetime "blacklist" on government employment upon a

class of individuals, like the former controllers, who

were led to believe, by government regulations and by

reasonable reliance on representations of government

officials, that any strike-related debarment from

employment as an FAA air traffic controller would be

for a period of "not more than 3 years from the date

of termination or disqualification." 5 C.F.R. 731.303.

The case at hand presents a manifest and strong

showing of "rare and exceptional circumstances"

requiring a different interpretation of the literal words

of a federal statute. Howe v. Smith, 452 U.S. 473,

483 (1981). For in the contollers' case, not only does

the legislative history show a contrary intent and

interpretation on the part of the Congressional drafters

of the enactment, but the enforcers of the statute also

shared that very same contrary interpretation — that

the statute provided for a three year bar. 5 C.F.R. §

731.303. It is precisely in the compelling combination

of the contemporary Congressional interpretation and

a -16-

:

the longstanding agency interpretation of the

Congressional acts, that, working hand-in-hand,

presents exactly the sort of "rare and exceptional"

circumstances that mandate going beyond the "plain

meaning" rule of the enactment. Howe v. Smith, supra.

-17-

Il. OPM's Interpretation Of 5 U.S.C. § 7311 As Imposing

An Indefinite Bar Against Former Employees Fired For

Striking Against The Federal Government Is Not

Reasonable Since Such An Interpretation Is In

Contradiction Of Previous Office Of Personnel

Management Interpretations That The Statute Only

Imposed A Maximum Three Year Bar.

The OPM's significant weight should be given to

OPM's prior interpretation that Section 7311 only

allowed a maximum three year bar. This three year

limitation is reflected in the Office of Personnel

Management's own current regulations. Not only do

OPM's regulations establish that the bar is to be limited

to three years, but the Federal Personnel Manual also

States clearly that the bar from employment is to be

limited to three years. Federal Personnel Manual,

Chapter 731, Subchapter 3, §3-6, and Subchapter 4, §4-

2 (1965). In short, the administrative agency regulations

incorporating a maximum three-year bar clearly

recognized the three year limitation intended by

Congress and acknowledged in the first sentence of

the Presidential directive of December 9, 1981.

-18-

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"Authoritative administrative constructions" — like

those of U.S. Attorney General William P. Rogers, and

of the U.S. Office of Personnel Management's own

Federal Personnel Manual and OPM Regulations, supra,

— "should be given the deference to which they are

entitled..." United States v. Turkette, 452 U.S. 576,

580 (1980). Petitioners relied to their detriment on

the earlier federal administrative determination of the

penalties for violation of 5 U.S.C. § 7311 as being a

maximum three year bar. Only when the Agency

unilaterally interpreted the Presidential directive to

mean a blacklisting for life did the Petitioners learn

there was any contrary interpretation. This is indeed

the sort of unfair, harsh and oppressive results of

federal legislation and its interpretation which the

federal courts and federal agencies have protected

against for nearly 200 years, as was done in the long

line of cases following Holy Trinity Church, supra.

"In the practical administration of the act" McLaren

v. Fleischer, 256 U.S. 477, 480 (1921), the U.S.

Government itself has long interpreted the statute as

containing a three year bar. "It therefore comes within

the rule that the practical construction given to an

act of Congress, fairly susceptible of different

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constructions [,] by those charged with the duty of

executing it [,] is entitled to great respect and if acted

upon for a number of years, will not be disturbed

except for cogent reasons. Id. at 481. [Emphasis

added] As the Supreme Court said in Udall v. Tallman,

380 U.S. 1, 16 (1965).

When faced with a problem of _ statutory

construction, this Court shows great deference to

the interpretation given the statute by the officers

or agency charged with its administration. To

sustain the Commission's application of this

statutory term, we need not find that its

construction is the only reasonable one or even that

it is the result we would have reached had the

question arisen in the first judicial proceedings

— particularly is this respect due when the

administrative practice at stake involves a

contemporaneous construction of a statute by the

men charged with the responsibility of setting its

machinery in motion; of making the parts work

efficiently and smoothly while they are yet untried

and new. [citations omitted and emphasis added].

The Court of Appeals below should have given "great

deference" to the OPM's first interpretation of 5 U.S.C.

§ 7311 as it chose to do to OPM's more recent

interpretation of the section. Petitioners strongly

contend that the agency's newest intrepretation of

Section 7311 as imposing an indefinite bar in

contradiction of its prior longstanding interpretation

that the maximum bar was three years is clearly not

reasonable as the Court below found.

-20-

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In the controllers' case, as the United States

Supreme Court found in Zenith Radio Corp. vs. United St

ates, 437 U.S. 443, 457-58 (1978), "LiJn light of these

substantial reliance interests, the longstanding

administrative construction of the statute should 'not

be disturbed except for cogent reasons". [Emphasis

added]. There are no "cogent reasons" (cf. McLaren,

supra) for disturbing the longstanding agency

construction of Section 7311 to impose a maximum three

year bar against federal employees who strike against

the government since the Presidential directive did not

alter the normal bar other than to reduce from three

years to only a few months the bar period for all non-

FAA jobs in the federal government. By radically

altering OPM's own interpretation and by interpreting

the Presidential directive as imposing an indefinite bar,

OPM acted contrary to law in its imposition of an

indefinite bar against Petitioners. Accordingly, the

Court of Appeals erroneous upholding of OPM's new

interpretation of § 7311 should be reversed.

While Petitioners do not deny the President had

the power to issue his executive order, that power is

also limited by other Acts of Congress, including §

-91-

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PTR Y. a ee oar ee) re aly Th

a= -

me el ep

— “a a a _ en

7311, which limits the ability to bar individuals fired

as strikers to three years. The fundamentally important

separation of powers ordained by the United States

Constitution plainly prohibits lawmaking by the

President. Accordingly, if the Chief Executive had in

his directive acted to invade the province of Congress,

the Courts would have to invalidate the action.

Youngstown Sheet and Tube Co. v. Sawyer, 345 U.S.

579 (1952) (commonly referred to as the "Steel Seizure

Case").

Both the Merit Systems Protection Board and the

Court of Appeals found that OPM's interpretation of

the Presidential directive was to be given great weight.

This "places the cart before the horse", because the

December 9, 1981 Presidential directive — like OPM's

prior interpretation — found there was only a three

year bar provided by § 7311. To find OPM's new

interpr2tation is reasonable is to engage in fancy logic-

chopping and say that "three years" now means

"forever". Such a ruling ignores the intent of Congress

in enacting § 7311, as well as the intent of the

President's directive.

«S2=

CONCLUSION

For the reasons stated above, Petitioners

respectfully request this Court to grant their petition

in this ease for a Writ of Certiorari to the United

States Court of Appeals for the Federal Circuit.

Respectfully submitted,

an Mh. I)

Dan M. Norwood

BYRD, COBB, NORWOOD,

LAIT, DIX & BABAOGLU

99 North Third Street

Memphis, Tennessee 38103

(901) 523-0301

May, 1986

=, =

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Petition

for Writ of Certiorari was sent by regular mail, postage

prepaid, this (7%4 day of Way , 1986 to:

Solicitor General

Department of Justice

Washington, D.C. 20530

Robert A. Reutershan

Civil Division, Commercial Litigation Branch

Department of Justice

Attention: Ciassification Unit

2nd Floor - Todd Building

Washington, D.C. 20530

Dan M. NorWood

APPENDIX

<)

TABLE OF CONTENTS

Page

Decision of the Court of Appeals

for the Federal Circuit, Dated

February 18, 1986................. 2

Decision of The Merit Systems

Protection Board, Dated January

31, 1985, 14

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Joseph C. Wagner, Jr. and

JEFFREY L. ATCHLEY Appeal No. 85-2389

)

)

)

Petitioners, )

)

v. )

) MSPB Nos.

OFFICE OF PERSONNEL )

MANAGEMENT ) ATO731810709

) ATO731810626

Respondent. )

DECIDED: February 18, 1986

Before MARKEY, Chief Judge, FRIEDMAN, Circuit

Judge, and MILLER, Senior Circuit Judge.

FIREDMAN, Circuit Judge.

This petition for review challenges the decision of

the Merit Systems Protection Board (Board) affirming

the ruling of the Office of Personnel Management

(OPM) that former air traffic controllers who had been

discharged * r striking against the United States were

not suitable for employment with the Federal Aviation

Administration (Administration). We affirm.

I

The petitioners are former air traffic controllers

who were discharged for participating in the illegal

air traffic controllers' strike in August of 1981. Shortly

after the strike, OPM determined that the discharged

strikers would be debarred from any federal employment

for three years. On December 9, 1981, the President

issued the following directive to the Director of OPM:

The Office of Personnel

Management has established the

position that the former air

traffic controllers who were

discharged for participating in a

strike against the Government

initiated on August 3, 1982 shall

be debarred from _ federal

employment for a period of three

years. Upon deliberation I have

eoneluded that such individuals,

despite their strike participation,

should be permitted to apply for

federal employment outside the

scope of their former employing

agency.

Therefore, pursuant to my

authority to regulate federal

employment, I have determined

that the Office of Personnel

Management should permit

federal agencies to receive

applications for employment from

these individuals and _ process

them according to established

civil service procedures. Your

office should perform suitability

determinations with respect to

all such applicants according to

established standards and

procedures under 5 CFR, Part

731.

After reviewing reports from the

Secretary of Transportation and

the Administrator of the Federal

Aviation Administration, I have

further determined that it would

be detrimental to the efficiency

of operations at the Federal

Aviation Administration and to

the safe and effective

performance of our national air

traffie control system to permit

the discharged air _ traffic

controllers to return to

employment with that agency.

Therefore, these former federal

employees should not be deemed

suitable for employment with the

Federal Aviation Administration.

I direct you to process their

applications for re-employment

with the federal government

accordingly.

17 Weekly Comp. of Pres. Doc. 1364 (Dec. 9, 1981).

On January 6, 1982, the Director of OPM issued a

bulletin to the heads of all executive departments and

independent agencies which, after quoting the foregoing

presidential directive, instructed that agencies

considering employment applications from former air

traffie controllers should submit the application and

additional information to OPM. The Director further

stated:

(b) All persons whose

employment was terminated on

account of the strike by air

traffic controllers, which began

on or about August 3, 1981, shall

be determined not to be suitable

for reinstatement or appointment

in any position in the Federal

Aviation Administration, because

it would be detrimental to the

efficiency of that agency by

interfering with or preventing its

effective performance of its

duties and responsibilities (5

CFR 731.202(a)(2)).

(ce) The Office of Personnel

Management shall consider, on a

case-by-case basis, applications

for Federal employment, other

than in the Federal Aviation

Administration, from air traffic

controllers whose employment

was terminated on account of

striking, and shall make

appropriate determinations of

their suitability for the

particular employment for which

they may apply....

The named petitioners Wagner and Atchley applied

to the Administration for appointment as air traffic

controllers. The Administration forwarded the

applications to OPM, which denied favorable suitability

determinations. The effect of the denial was to bar

them from obtaining positions with the Administration.

Wagner and Atchley appealed the OPM action to

the Board. The presiding official of the Board certified

the case as a class action on behalf of all former air

traffic controllers who, after their discharge for

participation in the illegal strike, were denied favorable

suitability determinations by OPM. The class comprised

more than 400 former controllers.

The petitioners waived a hearing, and the case was

submitted to the presiding official based upon written

submissions by the parties. The parties stipulated that

"OPM found each of the appellants to be unsuitabie

based solely on a determination that they had been

removed from their positions with the FAA for striking

in August 1982" and "based on its interpretation of

the President's directive of December 9, 1981."

The presiding official affirmed the "OPM decision

indefinitely debarring appellants as unsuitable for FAA

employment..." The presiding official held (1) that the

bar upon employment by persons who struck against

the government that 5 U.S.C. § 7311 (1982) imposes,

discussed below, is not limited to three years, and (2)

that OPM correctly interpreted the President's October

9, 1981 directive as imposing an indefinite and not just

a three-year bar upon employment by the Administration

of former air traffic controllers who had struck.

The petitioners did not seek review by the Board

of the presiding official's decision, which became the

decision of the Board. The petitioners then filed the

present petition for review of the Board's decision.

ll

The petitioners challenge the Board's decision on

the grounds (which are the issues the parties stipulated

the Board was to decide) (A) that OPM incorrectly

interpreted the presidential directive as imposing an

indefinite ban upon the employment by _ the

Administration of the former controllers, and (B) that

if the presidential directive did impose such a ban, it

was illegal because it was inconsistent with 5 U.S.C.

§ 7311, which the petitioners interpret as barring

strikers from federal employment for only three years.

A. The presidential directive explicitly imposed an

indefinite ban upon the employment of striking

controllers by the Administration. After stating in the

first paragraph that the President had concluded that

"such individuals, despite their strike participation,

should be permitted to apply for federal employment

outside the scope of their former employing agency,"

it provided:

I have further determined that it would be

detrimental to the efficiency of operations at the

Federal Aviation Administration and to the safe and

effective performance of our national air traffic

control system to permit the discharged air traffic

controllers to return to employment with that

agency. Therefore, these former federal employees

should not be deemed suitable for employment with

the Federal Aviation Administration.

as

It is difficult to imagine more precise or explicit

language to state that the striking controllers were

not to be employed by the Administration.

The petitioners contend, however, that in light of

the first paragraph of the directive, which referred to

the three-year bar on federal employment and waived

that bar for employment outside the Administration,

the subsequent provisions of the directive should be

construed as continuing that bar upon employment with

the Administration only for the three-year period that

there.ofore had covered all federal employment. That

is not what the directive said, however. Moreover,

that interpretation is inconsistent with the reasons the

President gave for barring employment with the

Administration, namely, that employment "would be

detrimental to the efficiency of operations at the

Federal Aviation Administration and to the safe and

effective performance of our national air traffic control

system...." There is no indication that the President

believed that the adverse consequences of permitting

the striking controllers to return to the Administration

would continue for only three years after the strike.

Finally, we need not ourselves determine the

meaning of the presidential directive. Our inquiry is

a narrower one: whether the Director's interpretation

of the directive is arbitrary and capricious or otherwise

legally erroneous. The Director has broad discretion

in interpreting a presidential directive relating to

federal personnel matters. Like the Ninth Circuit, we

give "great deference" to that interpretation. Kester

v. Campbell, 652 F. 2d 13, 15 (9th Cir. 1981), cert.

denied, 454 U.S. 1146 (1982) (Civil Service Commission

interpretation of Executive order of President). "To

be sustained, the agency's interpretation need not be

be the only reasonable interpretation... All that is

required is that the interpretation adopted by the

agency be reasonable... [and it is] considered reasonable

‘unless it is plainly erroneous or inconsistent with the

lorder]."" Id. at 15-16. (Citations omitted).

Under these standards we have no basis for rejecting

the Director's interpretation of the _ presidential

directive as imposing an indefinite ban upon employment

of the striking controllers by the Administration.

B. The statute that makes it a crime to strike

against the government, 5 U.S.C. § 7311, also provides

nevertheless intended to limit the new ban to three

years. Such conclusion would require at a minimum a

clear, unequivocal, and explicit statement by Congress

that it so intended. The legislative history not only

contains no such indication but, to the contrary, is

fully consistent with the conclusion that the present

Statute provides an indefinite ban upon government

employment by strikers.

The predecessor of the present statute was the Act

of August 9, 1955, Ch. 690, sec. 1, 69 stat. 624. That

Statute, like the present one, provided that no person

who participates in a strike against the United States

"Shall accept or hold office in the Government of the

United States." Prior to that statute, various federal

statutes barred strikers from government employment.

Those statutes included section 305 of the Taft-Hartley

Act, 29 U.S.C. § 188 (1952), which the petitioners treat

as the predecessor of the present statute. Another of

those statutes, however, section 612 of the Housing

Government and contained no time limit on the length

of the bar.

The Senate Committee Report of the 1955 Act

explained that "[tJhis legislation will clarify and

consolidate in a single, permanent, penal statute the

rider reenacted each year in appropriacion acts as well

as certain similar permanent provisions in existing law,

which in effect prohibit the employment by the

Government of . .. any person who strikes against

Government..." The provisions that the committee

stated the new law would "clarify and consolidate in

a single statute” included section 305 of the Taft-

Hartley Act, which limited the ban on employment of

strikers to three years, and section 612 of the Housing

Act of 1947, which did not so limit the bar. The

Senate Committee stated that the bill "will prohibit

the employment in the Federal Government... of any

person who... participates in any strike against the

Act of 1949, ch. 338, 63 stat. 413, 444, barred the

expenditure of appropriated funds to pay the salaries

or wages or individuals employed by the Housing and

Home Finance Agency or by the Department of

Agriculture who engaged in a strike against the

Government..." S. Rep. No. 1256, 84th Cong., Ist

Sess. 1, 2, reprinted in 1955 U.S. Code Cong. & Ad.

News 2873, 2874.

In light of this history, it is most unlikely that if

Congress intended the broad and unequivocal ban upon

employment by persons who participated in a strike

against the government to be limited to three years,

it would not have said so — either in the statute itself,

as section 305 of the Taft-Hartley Act did, or in the

legislative history. It did neither. The conclusion is

inescapable that Congress meant exactly what it said

— that persons who participated in a strike against

the government are barred indefinitely from employment

in the government.

The fact that, in a compassionate exercise of

clemency, OPM limited the bar on employment other

than with the Administration to three years and the

President reduced the bar on such employment to less

than three years, provides no basis for concluding that

the statutory bar itself is limited ‘a years. Since

no question has been raised about the authority of the

President and OPM to take such action, we need not

and do not consider that issue.

The decision of the Merit Systems Protection Board

is affirmed.

AFFIRMED

~13-

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

IN THE MATTER OF: °

”

JOSEPH C. WAGNER *

AND JEFFREY L. ATCHLEY,* DECISION NUMBER

On behalf of themselves * No.ATO7318410709

and all others similarly * DECISION NUMBER

situated, * ATO7318410626

* (CLASS APPEAL)

Appellants, *

of

v. * Date January 31, 1985

OFFICE OF PERSONNEL .

MANAGEMENT, *

”

Agency. °

INTRODUCTION

By petition filed in May and June, 1984, appellants

Atchley and Wagner, former Air Traffic Controllers,!

appealed decisions by the Office of

1. Appellants were removed from employment with

the Federal Aviation Administration based on charges

of participation in a 1981 strike against the United

States, in violation of 5 U.S.C. § 7311, and absence

without leave. For a historical background of the

strike, see Schapansky v. Department of

Transportation, 735 F. 2d 477 (Fed. Cir. 1984), cert.

denied, 105 S.Ct. 432 (1984).

7

Personnel Management (OPM) denying them favorable

suitability determinations based on referrals submitted

to OPM by the Federal Aviation Administration (FAA).

The referrals resulted from employment applications

appellants filed with the FAA following their removal

from FAA employment.

Because the appellants were not notifed by OPM of

any appeal rights (including a time limit for filing an

appeal), and the appellants exercised due diligence in

pursuing their appeals upon learning of OPM's actions,

waiver of any time limits for filing appeals of the

Suitability actions at issue in these appeals is

appropriate. 2 Casey v. Merit Systems Protection

Board, 748 F.2d 685, 686 (Fed. Cir. 1984). OPM initially

moved for dismissal of the appeals for lack of

jursidiction based on the fact that OPM had not issued

adverse Suitability determinations pursuant to 5 C.F.R.

§ 731.202, but subsequently acceded to the Board's

2. Appellants have not raied any harmful error issues.

“ai

jurisdiction. OPM's failure to make a _ Suitability

determination, by closing the suitability referrals

without action and indefinitely debarring the appellants,

is tantamount to an adverse determination and is,

therefore, subject to the Board's jurisdiction. Cf.

Mortensen v. Department of the Army, 13 MSPB 242

(1983) (Board found that an improper denial of a

reconsideration opportunity is sufficient to allow it

assume jursidiction). Accordingly, the actions are

appealable to the Board pursuant to 5 C.F.R. § 731.401.

Stewart v. Office of Personnel Management, 7 MSPB

746, 747 (1981).

As a result of discovery initiated by appellants'

counsel to determine the class action prerequisite of

numerosity, it was ascertained that OPM had closed

without action (CWOA), as it had in the cases of

Wagner and Atchley, several hundred applications

referred to it by FAA for suitability determinations.

Appellants' motion that the appeals be maintained as

a class action was unopposed by OPM. Based on a

finding that the prerequisites for a class action were

met, the appeals were certified as a class action

maintainable on behalf of a class comprised of the

The class representatives provided individual notices

to identified class members. Class members were

afforded until January 1, 1985, to exercise the option

to be excluded from the class, at which time the class

membership closed, except for three appellants (Peter

J. Lepari, Gerald M. Kibildis, and John Soucek) who,

based on their written requests, were subsequently

permitted to join the class. As a result of discovery,

409 class members have been specifically identified.

Because a hearing was waived, the class appeal has

been decided on the basis of written submissions by

the parties.

FINDINGS OF FACT AND CONCLUSIONS

OPM must prove, by preponderant evidence, the

reason for its decisions to find the appellants unsuitable

for federal employment. 5 U.S.C. § 7701(¢)(1)(B).

Further, OPM must show that the actions were for

such cause as will promote the efficiency of the service.

5 C.F.R. § 731.201. This determination must be based

on whether the conduct of the appellants may

reasonably be expected to interfere with or prevent

effective performance in the positions applied for or

whether the conduct of the appellants may reasonably

-17-

be expected to interfere with or prevent effective

performance by the employing agency of its duties and

responsibilities. 5 C.F.R. § 731.202(a).

The Board in Caruso v. Office of Personnel

Management, MSPB Dkt. No. SFO77318210987, slip op.

at 7 (July 17, 1984), coneluded that in light of the

seriousness of strike participation, suitability

disqualification of such former air traffic controllers

for employment in positins having interrelationship with

FAA controllers was supported by _ preponderant

evidence and promoted the efficiency of the service.

The suitability findings in Caruso are binding on the

appellants in this class since the class is composed of

former air traffic controllers removed for 1981 strike

participation. Because of OPM's application of an

indefinite bar, that issue remains to be decided.

The undisputed record shows that on December 9,

1981, President Ronald Reagan issued a memorandum

to the Director of OPM. The memorandum reads as

follows:

The Office of Personnel Management has

established ‘the position that the former air

traffic controllers who were discharged for

-18-

participating in a strike against the Government

initiated on August 3, 1981 shall be debarred

from federal employment for a period of 3 years.

Upon deliberation I have concluded that such

individuals, despite their strike participation,

should be permitted to apply for federal

employment outside the scope of their former

employing agency.

Therefore, pursuant to my authority to

regulate federal employment, I have determined

that the Office of Personnel Management should

permit federal agencies to receive applications

for employment from these individuals and

process them according to established civil

service procedures. Your office should perform

suitability determinations with respect to all

such applicants according to established

standards and procedures under 5 C.F.R., Part

731.

After reviewing reports from the Secretary

of Transportation and Administrator of the

Federal Aviation Administration, I have further

determined that it would be detrimental to the

efficiency of operations at the Federal Aviation

Administration and to the safe and effective

performance of our national air traffic

controllers to return to employment with that

agency. Therefore, these former federal

employees should not be deemed suitable for

employment with the Federal Aviation

Administration.

I direct you to process their applications for

reemployment with the Federal Government

accordingly.

Thereafter, OPM Director Donald Devine issued

Federal Personnel Manual Bulletin No. 731-6, dated

Janury 6, 1982, quoting President Reagan's memorandum

in its entirety. In that bulletin, Devine noitified federal

agencies that, pursuant to his authority as Director of

the OPM, and by delegation of authority from the

President of the United States:

All persons whose employment was terminated

on account of the strike by air traffic

controllers, which began on or about August 3,

_9ne

1981, shall be determined not to be suitable for

reinstatement or appointment in any position in

the Federal Aviation Administration, because it

would be detrimentai to the efficiency of that

agency by interfering with or preventing its

effective performance of its duties and

responsibilities (C.F.R. 731.202(a)(2).

The undisputed record also shows that OPM has

since adhered to the policy enunciated in FPM Bulletin

731-6 concerning applicants for employment with the

FAA. Generally, OPM hs implemented that policy by

closing without action suitability referrals submitted

to OPM by FAA.

The parties have stipulated to the following facts:

1. OPM did not conduct a background investigation

on any of the appellants other than to determine

that each appellant had been removed from their

positions with the FAA for striking in August

1981.

2. OPM found each of the appellants to be

unsuitable based solely on a determination that

they had been removed from their positions with

the FAA for striking in August 1981.

Din

3. The above-stated actions were taken by OPM

based on its interpretation of the President's

directive of December 9, 1981.

The stipulated issues? to be resolved in this class

action are as follows:

1. Whether the Presidential directive of December

9, 1981, barring former air traffic controllers

fired for striking in August 1981 from

reemployment with the FAA _ imposed an

indefinite bar.

2. Whether OPM exceeded its authority in applying

the Presidential directive.

The appellants aver that an indefinite bar, in excess

of three years, is contrary to law. In this regard, the

appellants argue that the congressional intent of 5

U.S.C. § 7311, prohibiting federal employment for

3. Although appellants initially made general

prohibited personnel practice claims, in light of the

Stipulated issues, those claims, as they might relate to

OPM, are deemed abandoned.

4. Tht section was repealed on August 9, 1955

-22-

persons striking against the government, was to

continue the prior provision of 29 U.S.C. § 188, 4

which imposed a three-year Dar to reemployment with

the government.

Appellants have cited two legislative history items

in an attempt to show that 5 U.S.C. § 7311 is ambiguous.

Appellants' first legislative history reference is a letter

from the Chairman of the United States Civil Service

Commission to the Chairman of the Committee on the

Post Office and Civil Service which reads, in pertinent

part, as follows:

Section 305 [29 U.S.C. § 188] of the Labor

Management Relations Act forbids striking by

Government employees, requires the discharging

of an employee who strikes and the forfeiture

of his civil service status, if any, and makes

him ineligible for employment for 3 years.

For some years provisions similar to the proposed

legislation have appeared in appropriation acts

each year. The Commission believes that HR

65490 [now 5 U.S.C. § 7311] represents desirable

legislation, since it would put such legislation

into permanent form, and would also consolidate

-23-

and supersede the several statutes which now partially

cover the subject.

Appellants also point to a letter to the Committee

Chairman from William P. Rogers, Department of

Justice, indicating that 29 U.S.C. § 188 would remain

unchanged. Finally, appellants argue that Federal

Personnel Manual, Chapter 731, as well as 5 C.F.R. §

731.303, reflecting OPM's policy and practice of

imposing a maximum three-year bar, is in recognition

of congressinal intent in the 5 U.S.C. § 7311.

OPM counters that an_ indefinite debarment,

pursuant to 5 U.S.C. § 7311, is not contrary to

congressional intent, and cites a Senate committee

report describing the effect of the enabiing legislation

(Public Law 84-330). That report makes no mention of

a debarment limit. OPM also points out that Public

Law 84-330 incorporated prior statutes dealing with

disloyalty and striking which imposed no time restriction

on debarments.

Where a matter of statutory interpretation is at

issue, the responsibility of the court is to begin with

the language of the statute and to hew closely to it.

Martel v. Department of Transportation, 735 Fed. Cir.

904, 507, n. 6 (Fed. Cir.), cert. denied, 105 S.Ct. 432

(1984). Where a statute's scope is narrow, its langu

precise, and its application foreseeably mechanical,

would take a strong showing or rare and excepti

circumstances to convince the court that it should

be applied as written. Ciampa v. Secretary of Healt!

and Human Services, 687 F. 2d 518 (list Cir. 198:

(citing Howe v. Smith, 452 U.S. 473, 483 (1981)). Tw

circumstances in which the court may look beyond the

express language of a statute in order to give force:

to congressional intent are: where the statutory

language is ambiguous; and where a_ litera!

interpretation would thwart the purpose of the overa!

Statutory scheme or iead to an absurd result. Unitec

States v. Tex-Tow, Inc., 589 F.2d 1310 (7th Cir. 1978).

See also International Telephone and _ Telegrap!

Corporation v. General Telephoine and Electronic

Corporation, 518 F. 2d 913, 917-18 (9th Cir. 1975

Neither of these circumstances are shown to be present

in 5 U.S.C. § 7311.

In construing a statute not yet judicially interpreted,

the court is guided by the plain meaning of the language

as well as congressional intent. Janowski Vv.

International Brotherhood of Teamsters Local 710

Pension Fund, 673 F. 2d 931 (7th Cir.), cert. denied,

103 S. Ct. 130 (1982). While the issue of the length of

a debarment has not been specifically decided by the

courts, the matter of debarment has been addressed.

In United States v. McDonald, 553 F. Supp. 1003 (S.D.

Tex. 1983), the court, in construing 5 U.S.C. § 7311,

held that the section providing that whoever violates

the enactment specifying an individusl may not "accept"

or "hold" a position in the United States government

if he participates in or asserts right to strike against

the Government is not void for vagueness. See also

United States v. Haggerty, 528 F. Supp. 1286 (D.C.

Colo. 1981). Finding that reinstatement would violate

5 U.S.C. § 7311, the court reversed an arbitration

award reinstating a striking postal employee. American

Postal Workers Union AFL-CIO vy. United States Postal

Service, 682 F. 2d 1280 (9th Cir. 1982), cert. denied,

103 S.Ct. 1183 (1983). That the penalty [of removal of

a striking air traffic controller) includes a barrier to

reemployment as a controller is not unreasonable in

view of 5 U.S.C. § 7311. Schapansky, 735 F. 2d at 486.

The language of 5 U.S.C. § 7311 is precise, clearly

understandable, unambiguous, and unequivocal in

expressing A prohibition against Government

employment for an individual who participates in a

strike against the United States Government. Nor does

that section limit debarment to three years. Thus, an

examination of legislative history of that section is

unwarrantea. Courts do not turn to legislative history

to shed light on meaning of easily understandable and

unambiguous statutory anactments. Dow Chemical Co.

v. United States Environmental Protection Agency, 635

F. 2d 559 (6th Cir. 1980), cert. denied, 452 U.S. 939

(1981). See also Deluxe Check Printers, Inc. v. United

States, 5 Ct. Cl. 478 (1984). Generally, legisiative

history is an inadequate substitute for congressional

action. United States v. Devall, 704 F. 2d 1513 (5th

Cir. 1983). See also Aronsen v. Crown Zellerbach, 662

F. 2d 584 (9th Cir. 1981), cert. denied, 103 S.Ct. 1183

(1983).

Having found that 5 U.S.C. § 7311 does not impose

a maximum three-year debarment, I turn now to the

issue of President Reagan's December 9, 1981 directive

to OPM.

The Appellants aver that an indefinite debarment

-27-

exceeds the intent of the President's directive.

Appellants correctly point out that in paragraph one

of his directive, President Reagan noted that OPM had

established the position that a three-year debarment

was applicable to air traffic controllers terminated for

Striking. Appeilants essentially argue that because the

directive did not specifically provide that the three-

year bar should not be applied, it is reasonable to

conclude that such was the expected maximum period

of debarment, and that the main purpose of the

directive was to waive the three-year bar _ to

employment with federal agencies other than the FAA.

As with 5 U.S.C. § 7311, the President's directive

concerning the reemployment of striking air traffic

controllers, is explicit —- such former federal employees

should not be deemed suitable for employment with the

FAA. That statement was preceded in the directive

by the President's observation that such employment

would be detrimental to the efficiency of operations

at the FAA and to the safe and effective performance

of our national air traffic control system. I am guided

by the plain meaning of the President's language and

conclude, accordingly, that the President intended that

Striking air traffic controllers should not be reemployed

with the FAA. Thus, an indefinite debarment would

not be contrary to the President's directive.

Appellants argue that the President's directive, if

an indefinite debarment was’ intended, exceeds

Congressional authorization and is, therefore, invalid.

Jalil v. Hampton, 460 F.2d 923 (D.C. Cir.), Cert. denied,

409 U.S. 887 (1972).

The President may, pursuant to 5 U.S.C. § 3391,

(1) prescribe such regulations for the admission of

individuals into the civil service; (2) ascertain the

fitness of applicants as to age, health, character,

knowledge, and ability for employment sought; and (3)

appoint and prescribe the duties of individuals to make

inquiries for the purpose of that section. The courts

have held that Executive Orders concerning employment

within the competitive service are within’ the

President's constitutional and statutory authority

pursuant to 5 U.S.C. §§3301 and 3302. Vergara v.

Hampton, 581 F. 2d 1281 (7th Cir. 1978), cert. denied,

sub nom Vergara v. Chairman, Merit Systems Protection

Board, 441 U.S. 905 (1979). See also Jalii v. Hampton,

590 F. 2d 1120, 1123 n. 3 (D.C. Cir. 1978). In light of

9 U.S.C. § 3301, and the case law concerning the

President's authority with respect to employment, I

find that appellants' assertion that the President

exceeded his authority is without foundation.

OPM regulations concerning employment’ are

promulgated pursuant to delegation of authority by the

President pursuant to 5 U.S.C. §§ 1104 and 3301. In

accordance with his authority under those sections,

President Reagan's directive superseded the provisions

of OPM's reguiations limiting debarments to three years

(5 C.F.R. § 731.303), as they related to air traffic

controllers terminated for striking. Presidential

Proclamations and Orders have the same force and

effect of laws when issued pursuant to a statutory

mandate or delegation of authority from Congress.

Independent Meat Packers Assoc. v. Butz, 526 F. 2d

228 (8th Cir. 1975), cert. denied, 424 U.S. 966 (1976).

An Executive Order of the President is to be accorded

the force and effect given to a statute enacted by

Congress. Farkas v. Texas Instrument, Inc., 375 F. 2d

629 (5th Cir.) cert. denied, 389 U.S. 977 (1967). The

promulgation of a national policy by the President is

in the nature of the promulgation of a regulation which

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is binding on the executive department to which it is

directed. McArthur Mining Company v. United States,

167 Ct. Cl. 143 (1964). Cf. National Treasury

Employees Union v. Reagan, 653 F. 2d 239 (D.C. Cir.

1981) (President's imposition of a federal hiring freeze

was permissible.)

In the closing paragraph of the December 9, 1981

message to OPM, the President directed that any

applications for reemployment be processed in

accordance with the provisions of that message. The

court held in Schapansky, 725 F. 2d at 487, that the

President acted within his official responsibility in

ordering air traffie controllers to return to work by a

deadline, or be fired. Similarly, the President acted

within his official responsibility in barring striking air

traffie controllers from reemployment with FAA. An

executive department is normally required to implement

any Presidential policy directive, absent some explicit,

legally binding authority to the contrary. American

Federation of Government Employees, AFL-CIO v.

Brown, 481 F. Supp.. 711 (D.C. Cir. 1979), rev'd and

remanded (on other grounds), National Federation of

Federal Employees, Local 1622 v. Brown, 645 F. 2d

1017 (D.C. Cir. 1981) (also reversing National

Federation of Federal Employees, Local 1622 v. Brown,

481 F. Supp. 704 (D.D.C. 1979)). Because the

President's directive, as it relates to the appellants,

is not shown to be contrary to law, it is to be afforded

the force and effect given to a statute and is binding

on OPM.

OPM asserts that its. interpretation of the

President's message is in accordance with 5 U.S.C. §

7311, which provides that an individual may not accept

or hold a position in the Government of the United

States if he participates in a strike against the

Government of the United States.

OPM's decision to implement the President's

directive through the application of an_ indefinite

debarment is within the scope of that directive and is

not shown to be inconsistent with the language or

purpose of the directive. An _ administrative

interpretation of a Presidential Proclamation is

supported by a general presumption of validity.

Pancoastal Petroleum, Ltd. v. Udall, 348 F.2d 805 (D.C.

Cir. 1965). See also Kester v. Campbell, 652 F. 2d

13 (9th Cir. 1981), cert. denied, sub nom Kester v.

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Devine, 454 U.S. 1146 (1982) (in light of its presumed

expertise in interpreting executive orders charged to

its administration, an agency's interpretation is

reviewed with great deference). I find no basis for

concluding that OPM's interpretation of the President's

message is in error.

Based on the President's authority, pursuant to 5

U.S.C. § 3301, OPM's’ responsibility concerning

personnel management delegated to it by the President

pursuant to 5 U.S.C. § 1104, the provisions of 5 U.S.C.

§ 7311, and the unambiguous instructions in the

President's message, I conclude that OPM's indefinite

debarment of the appellants from FAA employment, on

the basis of suitability, is not contrary to law, rule,

or regulation; is supported by preponderant evidence;

and is for such cause as will promote the efficiency

of the service.

DECISION

The OPM decision indefinitely debarring appellants

as unsuitable for FAA employment is AFFIRMED.

NOTICE

This decision is an initial decision of the Merit

Systems Protection Board and will become a final

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decision of the Board on March 7, 1985 unlss a petition

for review is filed with the Board or the Board reopens

the case on its own motion. 5 C.F.R. §§ 1201.113 and

0117.

Any party to the proceeding, the Director of the

Office of Personnel Management, and the Special

Counsel may file a petition for review of this decision

with the Merit Systems Protection Board. The petition

for review must set forth objections to the initial

decision, supported by references to applicable laws or

regulations, and with specific reference to the record.

One original and two copies of the petition for

review must be filed with the Clerk of the Merit

Systems Protection Board, 1120 Vermont Avenue, N.

W., Washington, D. C. 20419, no later than the date

set forth above.

After providing an opportunity for response by other

parties, the Board may grant a petition for review

when it is established that:

(a) New and material evidence is available

that, despite due diligence, was not

available when the record was closed;

or

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(b) The decision of the presiding official

is based upon an erroneous

interpretation of statute or regulation.

Any appellant adversely affected or aggrieved by the

Board's final decision may obtain judicial review, if

the Court has jurisdiction, by filing a petition with

the U. S. Court of Appeais for the Federal Circuit,

717 Madison Place, N. W., Washington, D. C. 20439.

Such a petition may not be filed while the case is

pending before the Board. To be timely, the petition

for judicial review must be received by the court within

30 days of the final Board decision. 5 U.S.C. §

7703(b)(1).

For the Board:

S. F. VESSER

Presiding Official

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