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."
This Court is hardly the first to address the legality of the ban as it applied to PATCO strikers and we find persuasive support in the opinions of Courts in other circuits on this issue. See Dehainaut v. Pena, 32 F.3d 1066 (7th Cir. 1994), cert. denied ___ U.S. ___, 115 S.Ct. 1427, 131 L.Ed.2d 309 (1995); Wagner v. Office of Personnel Management, 783 F.2d 1042 (Fed. Cir.), cert. denied 477 U.S. 906, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986); Korte v. Office of Personnel Management, 797 F.2d 967 (Fed. Cir. 1986). Not one of these Courts has found that the ban was unconstitutional or otherwise illegal for good reason: In accordance with 5 U.S.C. § 7311 any federal employee who participates in a strike against the United States may be banned from any future employment with the federal government for an indefinite period of time.
As the Federal Circuit held, "[t]he conclusion is inescapable that Congress meant exactly what it said [in Section(s) 7311] — that persons who participated in a strike against the government are barred indefinitely from employment in the government." Wagner v. Office of Personnel Management, 783 F.2d 1042, 1046 (Fed. Cir.), cert. denied, 477 U.S. 906 (1986); Dehainaut v. Pena, 32 F.3d 1066, 1074 (7th Cir. 1994) (holding that Section(s) 7311, "written without condition or limitation, contemplates an indefinite ban"), cert. denied, 115 S.Ct. 1427 (1995). If Section(s) 7311 were intended to bar federal employees only while they are participating in a strike against the federal government, as the plaintiffs contend, federal employees would be able to strike without recourse. Accordingly, we hold that Section(s) 7311 provides that any person who participates in a strike against the federal government may be barred indefinitely from employment with the federal government.
The Director of OPM has broad discretion in interpreting a presidential directive relating to federal personnel matters. Wagner v. Office of Personnel Management, 783 F.2d 1042, 1045 (Fed. Cir.), cert. denied, 477 U.S. 906, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986); Kester v. Campbell, 652 F.2d 13, 15 (9th Cir. 1981), cert. denied, 454 U.S. 1146, 102 S.Ct. 1008, 71 L.Ed.2d 298 (1982). To be sustained, the agency's interpretation must be "reasonable," meaning that it cannot be plainly erroneous or inconsistent with the President's order.
Even were the legislative history otherwise, this court would not be authorized to depart from the statute's broad language. See, e.g., United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1180 (3d Cir. 1994); Wagner v. Office of Personnel Management, 783 F.2d 1042, 1045 (Fed. Cir. 1986), cert. denied, 477 U.S. 906 (1986). As noted by the Federal Circuit in rejecting a similar type of claim, "[s]uch a conclusion would require at a minimum a clear, unequivocal, and explicit statement by Congress that it so intended."
This court has applied that principle to cases in which OPM has interpreted Executive Orders or other Presidential directives governing personnel matters in which, as in this case, OPM has been charged with the responsibility to apply and administer the Executive Order or directive. In such cases, we have held that the court must accord broad deference to the agency's interpretation of the Executive Order. See Wagner v. Office of Pers. Mgmt. , 783 F.2d 1042, 1045 (Fed. Cir. 1986) ; Alaniz v. Office of Pers. Mgmt. , 728 F.2d 1460, 1465 (Fed. Cir. 1984) ; see also Montana Wilderness Ass'n v. Connell , 725 F.3d 988, 994 (9th Cir. 2013) ; El-Ganayni v. U.S. Dep't of Energy , 591 F.3d 176, 187 (3d Cir. 2010) ; Dehainaut v. Pena , 32 F.3d 1066, 1073 (7th Cir. 1994).Further support for the government's interpretation of the in-lieu-of holiday provisions comes from the longstanding and consistent line of authority from the Comptroller General holding that the in-lieu-of holiday provisions do not apply to part-time employees.
As the Federal Circuit held, "[t]he conclusion is inescapable that Congress meant exactly what it said [in § 7311] — that persons who participated in a strike against the government are barred indefinitely from employment in the government."See Clarry, 85 F.3d at 1046; ( quoting Wagner v. Office of Personnel Management, 783 F.2d 1042, 1046 (Fed. Cir.), cert. denied, 477 U.S. 906, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986)); United Federation of Postal Clerks v. Blount, 325 F.Supp. 879, 882 (D.D.C. 1971) ("It is fair to conclude that, irrespective of the reasons given, there is a unanimity of opinion in the part of courts and legislatures that government employees do not have the right to strike."), affirmed 404 U.S. 802, 92 S.Ct. 80, 30 L.Ed.2d 38 (1971).