Applicability of Statutes Prohibiting Strikes Against the Federal Government to Cooperative Extension Agents

Applicability of Statutes Prohibiting Strikes Against the
Federal Government to Cooperative Extension Agents
S tatu tes p ro h ib itin g strik es by federal e m p lo y ees ag ain st th e federal g o v e rn m e n t d o not
a p p ly w h e re C o o p e ra tiv e E x te n sio n A g e n ts p a rtic ip a te in a strike ag ain st th eir u n iv e r­
sity em p lo y er.

March 20, 1980
M EM ORANDUM OPINION FOR T H E ACTIN G DIRECTOR,
EX ECU TIV E O F FIC E FOR U.S. ATTORNEYS
This responds to the questions raised in the letter from the United
States Attorney for the District of Hawaii, relating to the applicability
of the statutes prohibiting strikes by employees of the federal govern­
ment to certain individuals employed in the Cooperative Extension
Service at the University of Hawaii. The Assistant General Counsel of
the Department of Agriculture concluded in 1976 that the statutes in
question operate to prohibit these individuals from joining a strike
against the University. Although the matter is not free of doubt, we
believe that Congress did not intend the no-strike statutes to reach this
situation.
Section 7311 of Title 5 of the United States Code provides as
follows:
§ 7311. Loyalty and striking
An individual may not accept or hold a position in the
Government o f the United States or the government of the
District of Columbia if he—
(1) advocates the overthrow of our constitutional form
of government;
(2) is a member of an organization that he knows advo­
cates the overthrow of our constitutional form of govern­
ment;
(3) participates in a strike, or asserts the right to strike,
against the Government o f the United States or the govern*
ment of the District of Columbia; or
(4) is a member of an organization of employees of the
Government of the United States or of individuals em­
ployed by the government of the District of Columbia
that he knows asserts the right to strike against the G ov­
ernment of the United States or the government of the
District of Columbia. [Emphasis added.]
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Conduct forbidden by 5 U.S.C. §7311 is made criminal by 18 U.S.C.
§ 1918.
The position of the Department of Agriculture’s Assistant General
Counsel is as follows: First, that Cooperative Extension Agents hold “a
position in the Government of the United States”; and second, that
their participation in a strike of university employees would be a strike
“against the Government of the United States.” The Assistant General
Counsel argues that the coverage of the no-strike statutes is very broad,
and that they apply to “all forms of Federal employment.” He ac­
knowledges that Cooperative Extension Agents at the University of
Hawaii are “university employees,” but points out that at the same time
they hold federal Schedule A appointments in the Extension Service,
and also are covered by the federal Civil Service Retirement System.1
Because Cooperative Extension Agents hold “a form of Federal em­
ployment,” they are within the class covered by the no-strike statutes.
In addition, he concludes that “ [b]ecause the extension activities are
simultaneously State and Federal activities, striking against these activi­
ties would be a simultaneous strike against the State and Federal gov­
ernments.” Therefore, Cooperative Extension employees who partici­
pate in a strike against the University of Hawaii are subject to “loss of
their Federal appointment and criminal prosecution.”
It is a well-established principle that where criminal penalties are
involved, as they are here, the type of conduct proscribed by a statute
must be narrowly construed. United States v. Resnick, 299 U.S. 207, 209
(1936); United States v. Hartwell, 73 U.S. (6 Wall) 385, 395 (1867). In
United States v. McNinch, 356 U.S. 595 (1958), the question presented
was whether a lending institution’s application to the Federal Housing
Administration for credit insurance was a “claim against the Govern­
ment” within the meaning of the False Claims Act. In concluding that
it was not, the Supreme Court stated:
[I]t must be kept in mind . . . that in determining the
meaning of the words “claim against the Government”
we are actually construing the provisions of a criminal
statute. Such provisions must be carefully restricted, not
only to their literal terms but to the evident purpose of
Congress in using those terms, particularly where they are
broad and susceptible to numerous definitions.

1 Cooperative Extension Agents are appointed “to implement cooperative federal-state extension
programs for agriculture and home economics under the Smith-Lever Act (7 U.S.C. §§341-349).”
Authority for these appointments is found in 5 C.F.R. § 213.3113(aK0> which authorizes Agriculture
to grant appointments in the excepted service to persons employed in field positions, the work of
which is financed jointly by Agriculture and “cooperating non-federal entities.” We understand that
Cooperative Extension Agents are generally already employed by the state when they receive their
Schedule A appointments, and that they continue afterwards to be paid by the state and governed by
rules and requirements applicable to state employees.

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356 U.S. at 598 (citations omitted). See also United States v. Katz, 271
U.S. 354, 362 (1926) (“General terms descriptive of a class of persons
made subject to a criminal statute may and should be limited where
literal application of the statute would lead to extreme or absurd results,
and where the legislative purpose . . . would be satisfied by a more
limited interpretation”); United States ex rel. Marcus v. Hess, 317 U.S.
537, 542 (1943) (“we must give [a criminal statute] careful scrutiny lest
those be brought within its reach who are not clearly included. . .
Even if Cooperative Extension Agents are considered federal em­
ployees for some purposes, we find nothing in the terms of the no-strike
statutes or in their legislative history suggesting that Congress intended
them to apply in situations where the object of a strike is a non-federal
entity or activity being supported by federal funds. Section 7311 of
Title 5 and § 1918 of Title 18 were enacted in 1955 (Pub. L. 330, 84th
Cong., 1st Sess.), and consolidated several provisions in existing federal
law relating to disloyalty and striking against the government. These
existing no-strike provisions were found in § 612 of the Housing Act of
1949, § 305 of the Labor-Management Relations Act of 1947, and in
successive appropriations riders beginning with the Third Urgent Defi­
ciency Appropriations Act of 1946, 60 Stat. 269. See H.R. Rep. No.
1152, 84th Cong., 1st Sess. 2 (1955). The hearings in the House on the
1955 legislation show Congress’ understanding of these laws as intended
to protect the federal employer, and to prevent the disruption of federal
governmental functions. For example, Congressman Bennett, who
introduced the legislation in the House, told the Committee that they
did not “prohibit a government employee with part-time private em­
ployment from striking against his private employer.” To Prohibit the
Employment by the Government o f Persons who are Disloyal: Hearings
before the House Committee on Post Office and Civil Service, 84th Cong.,
1st Sess. 10 (1955). There is no indication of an intention to extend the
statutory prohibition on striking to all public employees working on
federally funded projects—as, for example, was accomplished explicitly
with respect to certain political activity in § 12 of the 1948 Hatch Act.
See Oklahoma v. Civil Service Commission, 330 U.S. 127 (1947).
When Cooperative Extension Agents strike against their university
employer, they do so as employees of the University and not as em­
ployees of the federal government. While their participation in a strike
may in some cases result in the disruption of a federal activity, we do
not think Congress intended the federal no-strike statutes to reach
so far.

L eon U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel

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