United States v. Haggerty

• Decision Date: 22 December 1981
• Docket Number: No. 81-CR-138 to 81-CR-141.,81-CR-138 to 81-CR-141.
• Citation: 528 F. Supp. 1286
• Parties: UNITED STATES of America, Plaintiff, v. John J. HAGGERTY, John S. Hynd, II, Terry L. Maxton, and Gary Shields, Defendants.
• Court: U.S. District Court — District of Colorado

528 F. Supp. 1286

UNITED STATES of America, Plaintiff, v. John J. HAGGERTY, John S. Hynd, II, Terry L. Maxton, and Gary Shields, Defendants.

Nos. 81-CR-138 to 81-CR-141.

United States District Court, D. Colorado.

December 22, 1981.

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Carole Dominguin, Asst. U. S. Atty., Denver, Colo., for plaintiff.

Daniel J. Sears, James A. Jablonski, Stephen C. Rench, Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This is a criminal prosecution for violation of 5 U.S.C. § 7311(3) and 18 U.S.C. § 1918(3), which prohibits United States government employees from participating in a strike against the government.¹ The defendants are all former air traffic controllers who were presidents of their local Professional Air Traffic Controllers (PATCO) union chapters. On August 3, 1981, after seven months of highly publicized unsuccessful negotiations with the Department of Transportation, the defendants, among approximately 13,000 PATCO members nationally and 700 locally, failed to report to work. On August 4, the defendants Haggerty and Shields were held in contempt of court by Chief Judge Winner for violating a court order prohibiting strike activities. Haggerty and Shields were eventually sentenced to 18 months probation conditioned on 200 hours of community service. On August 19, 1981, the grand jury returned indictments against all four defendants charging them with participating in a strike in violation of 18 U.S.C. § 1918.

This case is now before the court on the defendant's motions to dismiss the criminal complaints and indictments, pursuant to F.R.Crim.P. 12(b)(1) and (2), on the grounds that: 1) §§ 7311(3) and 1918 do not criminalize striking as a matter of statutory construction; 2) §§ 7311(3) and 1918(3) are void for vagueness; 3) the defendants are being selectively prosecuted due to the exercise of their constitutionally protected rights and; 4) the defendants, Haggerty and Shields, are being twice placed in jeopardy for the same offense.

For the reasons expressed in this opinion, the defendants' motions to dismiss are granted on selective prosecution and double jeopardy grounds.

I. STATUTORY CONSTRUCTION

The defendants first claim that as a matter of statutory construction 5 U.S.C. § 7311(3) and 18 U.S.C. § 1918(3) do not prohibit or penalize striking but merely state a condition of employment; if federal workers strike they may not accept or hold positions in the federal government. The defendants note that there has never been a prosecution under § 1918 and that nothing in the legislative history of §§ 7311 and 1918 explicitly indicates that these statutes prohibit or penalize striking. While this argument is clever, a common sense interpretation of these statutes supports a contrary conclusion.

The statute under which this prosecution is brought, 18 U.S.C. § 1918, is quite plainly a criminal statute. The statute is included in Title 18 of the United States Code which is entitled "Crimes and Criminal Procedure." The penalties for violation of the statute are criminal penalties, including imprisonment for as much as one year and one day,² or a fine of $1,000 or both, Title 18 is concerned only with crimes, the prosecution of crimes, the administration of criminal justice and the disposition of criminal cases. Section 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. Title 18 does not concern itself with the administrative framework of the government and government agencies, with conditions of employment or with the rights, privileges and obligations of civil servants.

It is extremely unlikely that congress, either intentionally or inadvertently, chose to insert a civil statute defining conditions of employment in the center of the federal criminal code.³ It is similarly implausible that congress intended, through § 1918, to criminalize a condition of employment expressed in § 7311. If congress merely intended to state a condition of employment through §§ 7311 and 1918 then terminating that employment would be the only necessary remedy for the government if employees disregarded those conditions. It abuses logic to assume that congress intended to provide criminal penalties against striking workers simply for holding a position in the government when terminating employment would be easier and more appropriate.

In addition, while there are no reported prosecutions under § 1918, several courts in passing on this provision have suggested that § 1918 is a penal provision prohibiting striking against the government. See e.g., Air Traffic Association of America v. P.A.T. C.O., 516 F.Supp. 1108, 1110 (E.D.N.Y.1981) ("strikes by federal employees continue to be illegal, 5 U.S.C. § 7311 and indeed criminal 18 U.S.C. § 1918"); United States v. P.A.T.C.O., 504 F.Supp. 432, 440 (N.D.Ill. 1980) rev'd on other grounds 653 F.2d 1134 (7th Cir. 1981) ("It is absolutely clear that a federal employee who strikes ... may be prosecuted under 18 U.S.C. § 1918"); Air Transport Association of America v. P.A.T. C.O., 453 F.Supp. 1287, 1293 n.8 (E.D.N.Y. 1978) 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) ("It is also the sworn duty of the Attorney General to enforce these laws §§ 7311, 1918 but for reasons not fathomable by this court they have apparently yet to initiate any investigations or enforcement proceedings"); Air Transport Association v. P.A.T.C.O., 313 F.Supp. 181, 185 (E.D.N.Y.1970) vacated in part on other grounds sub nom United States v. P.A.T.C.O., 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 23 A.L.R.Fed. 619, § 7 (1975) for a discussion of cases not involving air controllers, which refer to a strike as a crime under § 1918 while applying § 7311.

Accordingly, I hold that 18 U.S.C. § 1918 is a penal provision prohibiting striking by federal employees.

II. VAGUENESS

The defendants next claim that the phrase "accept or hold a position," included in §§ 7311(3) and 1918(3) is unconstitutionally void for vagueness. The defendants argue that congress' failure to define "accept" or "hold" creates several ambiguities in the statute which force individuals to speculate whether their conduct is prohibited and thereby triggers due process concerns under the Fifth Amendment. While these statutes are not exemplars of legislative artistry and draftmanship, they nonetheless give persons of ordinary intelligence fair notice that their contemplated conduct is forbidden by statute. Bouie v. City of Columbia, 378 U.S. 347, 348, 351, 84 S.Ct. 1697, 1699, 1701, 12 L.Ed.2d 894 (1964).

Further, the instant challenge is indistinguishable from that in United Federation of Postal Clerks v. Blount, 325 F.Supp. 879, 884-85 (D.D.C.1971) aff'd mem. 404 U.S. 802, 92 S.Ct. 80, 30 L.Ed.2d 38 (1971). In Blount, the plaintiff sought declaratory and injunctive relief invalidating the terms "strike" and "`participates' in a strike," of §§ 7311(3) and 1918(3), on vagueness and overbreadth grounds. In the three-judge district court decision, affirmed by the supreme court without opinion, the district court rejected the plaintiff's contention that congress' failure to further define the terms "strike" and "participates" rendered these statutes unconstitutional. The court reasoned that the term "strike" is of such common usage and acceptance that men of common intelligence need not guess at its meaning. Id.

In construing the term "participates," the court noted initially that federal courts have broad latitude to construe a statute in such terms as will save it from the infirmities of vagueness and overbreadth. Accordingly, the panel concluded that "it is only an actual refusal by federal employees to provide services that is forbidden by 5 U.S.C. § 7311(3) and criminalized by 18 U.S.C. § 1918," rather than such conduct as speech, union membership and informational picketing even though such activities may take place in concert during a strike by others. Id. at 884. Under the court's redeeming interpretation the statutes were neither vague nor overbroad.

This common sense interpretation of the statutes resolves any ambiguities in the terms "accepts" or "holds" a position. It is an actual refusal to provide services by federal employees—meaning employees who are holding or accepting positions in the federal government — that is forbidden by 5 U.S.C. § 7311(3) and criminalized by 18 U.S.C. § 1918.

III. SELECTIVE PROSECUTION

The defendants' third claim is that they are being selectively prosecuted due to the exercise of their constitutionally protected union activities. The Due Process Clause of the Fifth Amendment incorporates the application of concepts of equal protection to the federal government. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed.2d 884 (1952). Accordingly, the due process clause furnishes a federal defendant with the same guarantee against discriminatory federal prosecution as when state officials attempt to enforce a valid statute in a discriminatory fashion. United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972); United States v. Falk, 479 F.2d 616, 618 (7th Cir. 1973). The rationale behind the prohibition against discriminatory enforcement of the penal law was stated long ago by the supreme court in Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886):

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between person in similar circumstances, material to their rights, the denial of equal justice is still within

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