Dehainaut v. Pena, 93-3649

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore BAUER and FLAUM, Circuit Judges, and GRANT; FLAUM
Citation32 F.3d 1066
Parties147 L.R.R.M. (BNA) 2014, 63 USLW 2129 Jean DEHAINAUT, et al., Plaintiffs-Appellants, v. Federico PENA, et al., Defendants-Appellees.
Docket NumberNo. 93-3649,93-3649
Decision Date09 August 1994

Page 1066

32 F.3d 1066
147 L.R.R.M. (BNA) 2014, 63 USLW 2129
Jean DEHAINAUT, et al., Plaintiffs-Appellants,
v.
Federico PENA, et al., Defendants-Appellees.
No. 93-3649.
United States Court of Appeals,
Seventh Circuit.
Argued April 22, 1994.
Decided Aug. 9, 1994.

Page 1068

Phillip S. Wood, Richard J. Johnson (argued), Wood & Johnson, Aurora, IL, for plaintiffs-appellants.

Deborah A. Hill (argued), Office of U.S. Atty., Civ. Div., Appellate Section, James B. Burns, Office of U.S. Atty., Thomas P. Walsh, Asst. U.S. Atty., Office of U.S. Atty., Civ. Div., Chicago, IL, for defendants-appellees.

Before BAUER and FLAUM, Circuit Judges, and GRANT, District Judge. *

FLAUM, Circuit Judge.

A group of former air traffic controllers who had been fired for their participation in a 1981 strike against the federal government filed a class action suit against the United States Department of Transportation ("DOT"), the Federal Aviation Administration ("FAA"), and the Office of Personnel Management ("OPM"), seeking mandamus and injunctive relief (including back pay) and a declaratory judgment that OPM's policy indefinitely barring them from employment with the FAA and related agencies was unconstitutional. In their four-count complaint, the plaintiffs alleged that the policy violated the Constitution as (1) a bill of attainder, (2) an ex post facto law, (3) a denial of due process, and (4) a denial of equal protection. The district court granted the defendants' motion to dismiss under Fed.R.Civ.P. 12(b). We affirm.

I.

This case has its genesis in the Professional Air Traffic Controllers Organization ("PATCO") strike of August, 1981. See generally Professional Air Traffic Controllers Organization v. Federal Relations Authority, 685 F.2d 547, 551 (D.C.Cir.1982). At the time of the strike (and still today), a federal statute provided that "[a]n individual may not accept or hold a position in the Government of the United States" if he "participates in a strike, or asserts the right to strike against the Government of the United States." 5 U.S.C. Sec. 7311. Though the statute was phrased in absolute terms, a regulation provided:

When a person is disqualified for any reason named in Sec. 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 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.

Page 1069

5 C.F.R. Sec. 731.303. Among the many reasons for disqualification listed in 5 C.F.R. Sec. 731.202(b) was "[a]ny statutory disqualification which makes the individual unfit for the service"--such as that provided by 5 U.S.C. Sec. 7311.

On the first day of the strike, President Reagan issued an ultimatum to the striking controllers: return to work within forty-eight hours or forfeit your job. See 17 Weekly Comp.Pres.Doc. 845 (Aug. 3, 1981). Plaintiffs were among those discharged for failing to return to work. Shortly thereafter, the OPM announced that it intended to apply the maximum three-year debarment to the controllers. On December 9, 1981, however, President Reagan issued a directive modifying the debarment policy. The President's letter read as follows:

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, 1981 shall be debarred from federal employment for a period of three 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 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 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.

I direct you to process their applications for reemployment with the federal government accordingly.

17 Weekly Comp.Pres.Doc. 1364 (Dec. 9, 1981). On January 6, 1982, OPM issued Federal Personnel Manual (FPM) Bulletin 731-6 which implemented the policy announced in the December presidential directive. Bulletin 731-6 stated in relevant part:

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 FAA, because it would be detrimental to the efficiency of that agency by interfacing with or preventing its effective performance of its duties and responsibilities (5 CFR 731.202(a)(2)).

The Office of Personnel Management shall consider, on a case-by-case basis, applications for Federal employment, other than in the FAA from air traffic controllers whose employment was terminated on account of striking, and shall make appropriate determinations of their suitability for the particular department for which they apply....

Even after the issuance of Bulletin 731-6, plaintiffs allege that the FAA, in response to inquiries, continued to inform fired strikers that they still would be eligible for reemployment with the FAA three years after the date of their termination. This apparent contradiction was resolved, however, by the March 1984 publication of a new bulletin, 1 which, according to the plaintiffs, reinterpreted the December 1981 presidential directive in the wake of election-year polls indicating approval of the President's handling of the PATCO strike. The new bulletin stated that "the debarment period imposed by the President

Page 1070

against reemployment of discharged controllers within the scope of the FAA is indefinite in duration and extends to positions in the FAA and closely related facilities." (emphasis added).

After the three-year anniversary of their termination, the OPM received employment applications from various fired controllers, but declined to perform suitability determinations. Instead, the OPM applied the indefinite debarment policy articulated in the aforementioned FPM Bulletins. Plaintiffs filed suit, alleging that OPM's policy violated the Constitution as (1) a bill of attainder; (2) an ex post facto law; (3) a denial of due process; and (4) a denial of equal protection. In essence, plaintiffs claim that OPM misinterpreted and misapplied President Reagan's directive by failing to reevaluate the suitability for reemployment with the FAA at the end of the three-year maximum period of debarment. 2 The district court dismissed plaintiffs' complaint in its entirety, apparently under Fed.R.Civ.P. 12(b)(6). 3 Our review of a dismissal under Rule 12(b)(6) is de novo, Northwest Tissue Center v. Shalala, 1 F.3d 522, 527 (7th Cir.1993), and we must accept as true all well-pleaded facts in the complaint and draw all reasonable inferences in the light most favorable to the plaintiffs. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991). For the reasons stated below, we affirm the judgment of the district court.

II.

A.

Article I, Sec. 9, clause 3 of the United States Constitution prohibits Congress from passing bills of attainder. The Supreme Court has defined a bill of attainder as "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Selective Service System v. Minnesota Public Interest Research, 468 U.S. 841, 846-47, 104 S.Ct. 3348, 3351-52, 82 L.Ed.2d 632 (1984); see also Schellong v. I.N.S., 805 F.2d 655, 662 (7th Cir.1986), cert. denied, 481 U.S. 1004, 107 S.Ct. 1624, 95 L.Ed.2d 199 (1987). Thus, it is apparent that a bill of attainder consists of three elements: (1) specification of the affected persons; (2) punishment; and (3) lack of a judicial trial.

As the Supreme Court has noted on numerous occasions, the Bill of Attainder Clause "is an important ingredient of the doctrine of separation of powers," see e.g., United States v. Brown, 381 U.S. 437, 442-43, 85 S.Ct. 1707, 1711-12, 14 L.Ed.2d 484 (1965), that historically was viewed as a limitation on the power of the legislature alone. See generally, Nixon v. Administrator of General Services, 433 U.S. 425, 473-75, 97 S.Ct. 2777, 2805-06, 53 L.Ed.2d 867 (1977); L. Tribe, American Constitutional Law 660 (1988). "Just as Art. III confines the Judiciary to the task of adjudicating concrete 'cases or controversies,' so too the Bill of Attainder Clause was found to 'reflect ... the Framers' belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.' " Nixon, 433 U.S. at 469, 97 S.Ct. at 2803 (quoting Brown, 381 U.S. at 445, 85 S.Ct. at 1713). Thus, our first inquiry is whether the very nature of the action challenged here--an executive agency's interpretation of a presidential directive--places it outside the reach of the ban...

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