Korte v. Office of Personnel Management

• Decision Date: 31 July 1986
• Docket Number: No. 85-2544,85-2544
• Citation: 797 F.2d 967
• Parties: Christopher K. KORTE, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 967

797 F.2d 967

Christopher K. KORTE, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Appeal No. 85-2544.

United States Court of Appeals Federal Circuit.

July 31, 1986.

Joseph P. Cyr, Shearman & Sterling, New York City, argued for petitioner. With him on brief was Clarence W. Olmstead, Jr.

Hillary A. Stern, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for respondent. With him on brief were Richard K. Willard, Asst. Atty. Gen. Civ. Div., David M. Cohen, Director and Robert A. Reutershan. W. Scott Burke, General Counsel and Carrol H. Kinsey, Jr., Atty., Office of the General Counsel, Office of Personnel Management, of counsel.

Before MARKEY, Chief Judge, and FRIEDMAN and BISSELL, Circuit Judges.

BISSELL, Circuit Judge.

Petitioner Korte appeals from the final decision of the Merit Systems Protection Board (Board), Docket No. NY07318510161, which affirmed a decision of the Office of Personnel Management (OPM) determining that he was not suitable for a position as an air traffic controller in connection with his application for employment with the Federal Aviation Administration (FAA). We affirm.

BACKGROUND

Petitioner is a former air traffic controller who was removed from employment with the FAA based on charges of participating in the 1981 strike against the United States, in violation of 5 U.S.C. Sec. 7311, and absence without leave. In 1984, he applied for employment with the FAA. The parties have stipulated that OPM determined that he was not suitable for employment solely because (1) he belongs to a class of individuals discharged for their participation in the strike; and (2) OPM interpreted a Presidential directive as indefinitely barring from reemployment with the FAA all controllers discharged as a result of the strike.

This court addressed an essentially identical factual situation in a recent class action case, Wagner v. Office of Personnel Management, 783 F.2d 1042 (Fed.Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986).

After the strike, the President issued a directive to the Director of OPM stating that those former federal employees who had been discharged for participating in the strike "should not be deemed suitable for employment with the Federal Aviation Administration." 17 Weekly Comp. of Pres. Doc. 1364 (Dec. 9, 1981). The petitioners in Wagner argued

(A) that OPM incorrectly interpreted the presidential directive as imposing an indefinite ban upon the employment by the [Federal Aviation] 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. Sec. 7311, which the petitioners interpret as barring strikers from federal employment for only three years.

Wagner, 783 F.2d at 1044. With regard to the first issue, the court upheld OPM's interpretation as imposing an indefinite ban. Id. at 1045. With regard to the second issue, the court examined the language of the statute and the legislative history, and concluded 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." Id. at 1046.

Korte opted out of the Wagner class and now attempts to distinguish the Wagner holding on constitutional grounds. He argues on appeal that the determination of his unsuitability is unconstitutional because it (1) deprives him of liberty and property rights without the procedural protection required by the Due Process Clause; (2) adopts an irrebuttable presumption violative of the Due Process Clause in that it has no rational relation to any legitimate government interest; and (3) violates the Bill of Attainder Clause.

OPINION

What Korte does not challenge is the constitutionality of 5 U.S.C. Sec. 7311 (1982) (the statute), which reads in pertinent part 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....

Neither at the Board nor in his briefs to this court does he attack the statute itself, and in response to a question from the panel during oral argument his counsel confirmed that even if the statute imposed a permanent bar to future employment it would not be unconstitutional.

In a memorandum opinion, the Supreme Court has affirmed a judgment that the statute is constitutionally sound. United Federation of Postal Clerks v. Blount, 404 U.S. 802, 92 S.Ct. 80, 30 L.Ed.2d 38 (1971), aff'g 325 F.Supp. 879 (D.D.C.1971). The district court held that the statute did not violate any constitutional rights of those employees who were members of the plaintiff's union. 325 F.Supp. at 885. The district court also stated that "it is not irrational or arbitrary for the Government to condition employment on a promise not to withhold labor collectively, and to prohibit strikes by those in public employment." 325 F.Supp. at 883.

Similarly, we believe it is not irrational or arbitrary for the government to prohibit reemployment of discharged employees who participated in a strike against the government, and that is just what the statute does. "[P]ersons who participated in a strike against the government are barred indefinitely from employment in the government." Wagner, 783 F.2d at 1046. "[A] worker may not hold a government position if the individual has participated in a strike against the government." American Postal Workers v. United States Postal Service, 682 F.2d 1280, 1283 (9th Cir.1982).

Conceding, as he must, that the statute does not limit the period of debarment, Korte relies on 5 C.F.R. Sec. 731.303 for his assertion of a period of debarment limited to three years. In its entirety, that regulation reads:

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.

Among the many reasons for disqualification listed in 5 C.F.R. Sec. 731.202(b) is "[a]ny statutory disqualification which makes the individual unfit for the service." Section 7311 is such a statutory disqualification. As the parties stipulated, OPM determined he was not suitable for employment on the basis of that statutory disqualification and the President's directive--he belongs to a class of individuals discharged for their participation in the strike.

Korte's implicit argument that OPM's action was contrary to its own regulation is beside the point because OPM was not acting on its own authority and exercising its own discretion; rather it was acting under the express direction of the President. Even assuming, arguendo, that the indefinite statutory bar was limited to three years by the regulation, the President's directive overrode or superseded that regulation and imposed an indefinite ban on the class of which Korte was a member. As the government properly argues, OPM's role in the suitability determination was limited to executing the President's instructions.

On the factual record in this case, it is our view that OPM properly determined that he was disqualified. The statute is constitutionally sound and OPM's action was in accord with the statute and the President's directive.

I DUE PROCESS

A

Korte asserts that he had constitutionally protected liberty and property interests of which he was deprived in violation of the Due Process Clause. Citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), Korte urges this court to adopt a balancing test and to declare OPM's action constitutionally defective.

We note that the Supreme Court recently stated that it has "never held that applicants for benefits, as distinct from those already receiving them, have a legitimate claim of entitlement protected by the Due Process Clause." Lyng v. Payne, --- U.S. ----, ----, 106 S.Ct. 2333, at 2343, 90 L.Ed.2d 921 (1986). Nevertheless assuming, without deciding, that he had constitutionally protected property and liberty interests, and even assuming those interests were "terminated," we are not persuaded that the Due Process Clause was violated. Korte was afforded what the Supreme Court has declared are the "essential requirements of due process, ... notice and an opportunity to respond." Cleveland Board of Education v. Loudermill, 470 U.S. 532, ----, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985). Because Korte was entitled to a full administrative hearing, 5 C.F.R. Secs. 731.401(a), 1201.24(c), and judicial review, 5 U.S.C. Sec. 7703(a)(1), it was constitutionally permissible for a pretermination hearing to be "an initial check against mistaken decisions." Loudermill, 105 S.Ct. at 1495.

Here, the facts are not disputed. Korte admitted participating in the strike. Yet he asserts that OPM should have evaluated his application more fully by considering the factors enumerated in 5 C.F.R. Sec. 731.202(c), e.g., nature and seriousness of the conduct, contributing social or environmental conditions, and rehabilitation. It may thus appear that he is only asserting a "meaningful opportunity to invoke the discretion of the decisionmaker," Loudermill, 105 S.Ct. at 1494, but actually he is arguing that "the decisionmaker should be lenient and depart from legal requirements." Id. n. 8. The government properly argues that once it was determined that Korte was removed from his air traffic controller position for strike participation, "there was no need for further investigation as the President's directive was then controlling." This court has held that the...