U.S. v. Greene

• Decision Date: 31 January 1983
• Docket Number: 82-1003 and 82-1005,Nos. 81-1625,s. 81-1625
• Citation: 697 F.2d 1229
• Parties: 113 L.R.R.M. (BNA) 2507 UNITED STATES of America, Plaintiff-Appellee, v. Gary GREENE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harry L. GRANT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ronald A. MAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1229

697 F.2d 1229

113 L.R.R.M. (BNA) 2507

UNITED STATES of America, Plaintiff-Appellee, v. Gary GREENE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Harry L. GRANT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ronald A. MAY, Defendant-Appellant.

Nos. 81-1625, 82-1003 and 82-1005.

United States Court of Appeals Fifth Circuit.

Jan. 31, 1983.

Mullinax, Wells, Baab & Cloutman, G. William Baab, Dallas, Tex., for defendant-appellant.

Ronald C.H. Eddins, Asst. U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before BROWN, WISDOM and RANDALL, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This is an appeal by three air traffic controllers employed by the United States Government in the Dallas-Fort Worth area. They were convicted under 18 U.S.C. Sec. 1918 for participating in a strike while employed by the federal government. Because we find that the indictments state facts constituting a crime, the statute itself is not void for vagueness, and the selection of defendants for prosecution did not violate equal protection such that dismissal of the indictments was warranted, we affirm.

Defendants Grant, Greene and May are all former air traffic control specialists who were officers of their local Professional Air Traffic Controllers (PATCO) union chapters. ¹ On August 3, 1981, after seven months of highly publicized but unsuccessful negotiations with the Department of Transportation, the defendants, among approximately 13,000 PATCO members nationally and 300 in the Dallas-Fort Worth area, failed to report to work. Defendants were indicted for violation of 18 U.S.C. Sec. 1918(3), which prohibits United States Government employees from participating in a strike against the government. ² Defendants were convicted, committed to the custody of the Attorney General of the United States for a period of one year and one day, ³ and assessed a fine of $750 each.

Attacking their convictions, defendants are now before the Court contending that the District Court erred in not dismissing the criminal complaints and indictments, pursuant to F.R.Crim.P. 12(b)(1) and (2), on the grounds that: (a) the indictments against them do not state facts sufficient to constitute an offense against the United States; (b) 18 U.S.C. Sec. 1918 is void for vagueness; and (c) the government's prosecutions of Grant, Greene and May were impermissibly selective.

Strike 1: Statutory Construction

The defendants argue as their first basis for appeal that as a matter of statutory construction 18 U.S.C. Sec. 1918(3) does not prohibit or penalize striking by government employees but merely states as a condition of employment that if federal workers strike, they may not accept or hold positions in the federal government. Thus, they argue that defendants' indictments do not state facts constituting a crime. While defendants' argument may have some validity for 5 U.S.C. Sec. 7311(3), the civil statute forming the basis for 18 U.S.C. Sec. 1918(3), it has no application to Sec. 1918(3) itself.

The statute under which this prosecution is brought (18 U.S.C. Sec. 1918(3)) is quite plainly a criminal statute. The penalty for violating the statute includes imprisonment for as much as one year and a day, ⁴ or a fine of $1,000 or both. Second, the statute is included in Title 18 of the United States Code which is entitled "Crimes and Criminal Procedure." Title 18 is concerned only with crimes, the prosecution of crimes, the administration of criminal justice and the disposition of criminal cases. Title 18 does not deal with the administrative framework of the government or its agencies, with conditions of employment or with the rights, privileges and obligations of civil servants. Moreover, Sec. 1918 is included in Chapter 93 which contains 23 separate sections, each of which defines a crime relating to the acts of public officers and employees. For all these reasons, it is quite unlikely that Congress intentionally or inadvertently inserted a civil statute defining conditions of employment in the middle of a federal criminal code. ⁵

Concern for efficiency also dictates this result. If Congress had had in mind to create a condition of employment in Sec. 1918, it could have restricted itself to the sole remedy of terminating the employment of employees who disregarded that condition. It defies logic to assume that Congress intentionally provided criminal penalties against striking workers simply for holding a position in the government when terminating their employment would be an easier and far more appropriate remedy.

Several courts, in passing on this provision, have also suggested that Sec. 1918 is a penal provision prohibiting striking against the government. See e.g., Air Traffic Association of America v. PATCO, 516 F.Supp. 1108, 1110 (E.D.N.Y.) aff'd 667 F.2d 316 (2d Cir.1981) ("strikes by federal employees continued to be illegal ... and indeed criminal ..."); United States v. PATCO, 504 F.Supp. 432, 440 (N.D.Ill.1980), reversed on other grounds, 653 F.2d 1134 (7th Cir.1981) ("[I]t is absolutely clear that a federal employee who strikes ... may be prosecuted under 18 U.S.C. Sec. 1918"); Air Transport Association of America v. PATCO, 453 F.Supp. 1287, 1293 n. 8 (E.D.N.Y.), aff'd, 594 F.2d 851 (2d Cir.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2163, 60 L.Ed.2d 1046 (1979) ("[I]t is also the sworn duty of the Attorney General to enforce these laws [Secs. 7311, 1918] but for reasons not fathomable by this Court they have apparently yet to initiate any investigative or enforcement proceedings"); Air Transport Association v. PATCO, 313 F.Supp. 181, 185 (E.D.N.Y.1970) vacated in part on other grounds sub nom, United States v. PATCO, 438 F.2d 79 (2d Cir.1970), cert. denied, 402 U.S. 915, 91 S.Ct. 1373, 28 L.Ed.2d 661 (1971) ("the federal law makes it a crime for a government employee to participate in a strike ..."); see also H.Rep. No. 1152, 84th Cong., 1st Sess. 2 (1955); S.Rep. No. 1256, 84th Cong., 1st Sess. 1 (1955), and 23 A.L.R. Fed. 618 Sec. 7 (1975) for a discussion of cases not involving air controllers which refer to a strike as a crime under Sec. 1918 while applying Sec. 7311.

The indictment, then, was sufficient. Participation in a strike by a government employee is a crime under 18 U.S.C. Sec. 1918, and the indictment charged participation in a strike in violation of that section. The indictment need only contain the elements of the offense charged, apprise the defendant of what he must be prepared to meet, and, in case other proceedings are taken against him, show accurately the extent to which he may plead the earlier proceedings. Webb v. United States, 369 F.2d 530, 535-36 (5th Cir.1966). Here, the elements of the offense are striking and being a government employee. The indictment charges both. It gives the defendant sufficient notice of the charge to permit him to prepare a defense, and it establishes the extent to which the prosecution will bar other proceedings.

Strike 2: Vagueness

Defendants argue as their second basis for appeal that Congress, by facially prohibiting employment of strikers, instead of strikes by employees, and by failing to define the phrase "hold the position" or the time frame in which it operates, rendered 18 U.S.C. Sec. 1918(3) unconstitutionally void for vagueness.

To pass constitutional muster, a statute must give persons of ordinary intelligence fair notice that their contemplated conduct is forbidden by statute. Papachristou v. City of Jackson, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Bouie v. City of Columbia, 378 U.S. 347, 348, 351, 84 S.Ct. 1697, 1699, 1701, 12 L.Ed.2d 894 (1964). United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); see Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952); Stansberry v. Holmes, 613 F.2d 1285 (5th Cir.1980); United States v. Mikelburg, 517 F.2d 246, 252 (5th Cir.1975) cert. denied, 424 U.S. 909, 96 S.Ct. 1104, 47 L.Ed.2d 313 (1976); Turf Center, Inc. v. United States, 325 F.2d 793 (9th Cir.1963).

Defendants argue that Sec. 1918 fails to give fair warning to potential strikers that they will be subject to criminal penalties for participating in a strike. They suggest that federal employees who choose to strike could reasonably believe that they would not be subject to criminal penalties so long as they did not subsequently attempt to return to work.

Defendants' argument is premised on the idea that Sec. 1918 prohibits only employment of strikers and not strikes by government employees. ⁶ As the preceding discussion suggests, however, such a premise is flawed. It is true that Sec. 1918 includes a condition of employment in its reference to Sec. 7311. As one court pointed out, "Section 7311 must however be considered in conjunction with 18 U.S.C. Sec. 1918, which makes an individual's violation of its provisions a crime ... thus the specific statutory consequences of an individual employee's strike participation is his or her potential termination of employment under Section 7311 and potential prosecution under 18 U.S.C. Sec. 1918." (emphasis added). United States v. PATCO, 504 F.Supp. at 438. Reading Sec. 1918 in this manner, we hold that the statute (Sec. 1918) is not unconstitutionally vague since it gives fair warning to federal employees that no person may strike against the government while holding a government job without being subject to criminal prosecution and penalties. United States v. Amato, 534 F.Supp. 1190 (E.D.N.Y.1982); United States v. Haggerty, 528 F.Supp. 1286 (D.Colo.1981). See also Air Traffic Association, 516 F.Supp. at 1110; Air Transport Association, 453 F.Supp. at 1294.

This result is not vitiated by defendants' contention that the...