# Petition for Writ of Certiorari — Schapansky v. Department of Transportation

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 1018

## Text

84-258 )

Office -Supreme Court, US.

FIibkLED
No. AUG 16 (904
ALEXANDEFet. STEVAS,
CLERK
IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

Roy L. SCHAPANSKY, et al.,

Petitioners,
V.

DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

LEIGHTON LEMOV JACOBS
& BUCKLEY, Chartered

Of Counsel
August, 1984

* Counsel of Record

RICHARD J. LEIGHTON *
GLENN P. SUGAMELI
RIsA D. SANDLER
MARGARET S. DAILEY
2033 M Street, N.W.
Washington, D.C. 20036
(202) 785-4800

Counsel for Petitioners

a a REE ES A ISDE ETSI UDI TEI
WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

aati

QUESTIONS PRESENTED FOR REVIEW

1. Should this Court resolve a conflict among three
federal circuits as to whether Congress intended that, un-
der 5 U.S.C. § 7311(3), anyone who participates in a
strike against the federal government (a) must be auto-
matically and otherwise arbitrarily removed from federal
service (that is, without consideration of mitigating and
other relevant factors, including prior imposition of les-
ser penalties for the same offense under the same statute
by the same agency, excellent and lengthy prior public
service and unique surrounding circumstances), or (b)
may be automatically and otherwise arbitrarily removed,
at the discretion of the employing agency, or (c) is en-
titled, prior to determination of the penalty, to considera-
tion of all relevant facts?

2. Should this Court resolve a conflict between two
federal circuits on the question of whether an affected
individual must prove harmful error when a federal
agency violates an express minimum procedural require-
ment imposed by Congress for the benefit of the individ-
ual, considering that one circuit answered this question
negatively in reliance on this Court’s suggestion in
Kotteakos v. United States, 328 U.S. 750, 764-65 (1946) ?

3. Does a federal agency’s violation of the minimum
statutory period granted to a federal employee to reply
to agency charges render a removal action on those
charges “not in accordance with law” or constitute
“harmful per se” error, thus requiring reversal of the
federal ermployee’s removal under the Civil Service Re-
form Act of 1978, 5 U.S.C. §§ 7513(b), 7701(c) (2)?

4. Should this Court resolve a conflict between two
circuits on the question of whether proof of a federal
employee’s strike activity prohibited by 5 U.S.C. § 7311(3)
or the cross-referenced felony statute, 18 U.S.C. § 1918,
requires a showing of intent to strike and/or “concerted
activity,” not just “parallel” action that could be unique
to an individual?

(i)

ii

5. Should this Court reverse the decision of the Court
of Appeals for the Federal Circuit for failing to apply
the proper standard of review, as dictated by this Court,
to the Merit Systems Protection Board’s departure from
the Board’s own precedent on statutory interpretation is-
sues of manifestly paramount importance to federal labor

law?

iii

LIST OF PARTIES AND CASES

Several petitioners herein had their claims below ad-
judicated together in a single decision. For purposes of
clarity, the following list identifies each party to this pe
tition and the cases in which their claim was decided:

Merit Systems

Federal Circuit Protection

Decision Board Decision
Name of Petitioner (Appendix A) (Appendix B)
Richard T. Adams Adams/Baracco* Adams
Gary &. Baracco ** Adams/Baracco Baracco
Richard J. Bender Adams/Baracco Adams
Richard Bronleben Adams/Baracco Adams
Antonio Chevalier Adams/Baracco Adams
Thomas R. Connelly Adams/Baracco Adams
Thomas J. Contegni Adams/Baracco Adams
Gerard Curran Adams/Baracco Adams
Anthony L. DiMasso DiMasso Adams
Bernard Dorrance Dorrance Adams
James N. Fry Adams/Baracco Adams
Allan A. Giannattasio Adams Adams
Lawrence G. Martel Martel Martel
Stephen J. Moylan Moylan Noa
Roy L. Schapansky Schapansky Schapansky

* The opposing party in all Federal Circuit and Merit Systems
Protection Board cases here listed was the Department of Trans-
portation.

** Under Federal Rule of Appellate Procedure 43, Marjorie F.
Baracco, surviving spouse and personal representative of petitioner
Gary S. Baracco (deceased), was substituted as a party on motion.
Adams/Baracco v. Department of Transportation, 735 F.2d 488
(Fed. Cir. 1984).

TABLE OF CONTENTS

GaN AE 9 asesscatnebschanacainbihaduiieanemactiieaboaceddlasinin
JURISDICTION ............ Fulcctas sotecuihipinhsamintirbasibaiisti isabcokaeedaen
STATUTORY PROVISIONS INVOLVED .....................

1
2
2
STATEMENT OF THE CASE.......0..0....0020000..2.22.2222000000-- 3
AIEEE ET SN RE ETAL OE BAT CS 3
EEL TLS SRT EER OE 5

6

REASONS FOR GRANTING THE WRIT ........0.........

1. THE COURT BELOW SUSPENDED THOU-
SANDS OF SIMILAR APPEALS, PENDING
POSSIBLE REVIEW BY THIS COURT OF
THESE LEAD CASES, WHICH RAISE
ISSUES OF COMPELLING PUBLIC IMPOR-
UE. Acahicsucceciaiiicisnnlagiantibdadiad asidebabeatetedihinaien 6

2. THE COURT OF APPEALS’ HOLDING
THAT DENIAL OF THE STATUTORILY-
MANDATED MINIMUM PERIOD TO REPLY
TO AGENCY CHARGES DID NOT REQUIRE
REVERSAL OF THE AGENCY ACTION IS
ERRONEOUS AND CONFLICTS WITH A
CIRCUIT COURT DECISION THAT RELIED
UPON THIS COURT’S ANALYSIS .......000000..... 8

3. THE COURT OF APPEALS’ RULING RE-
GARDING THE PENALTY IMPOSED UPON
PETITIONERS CONFLICTS WITH ITS OWN
RULINGS AND THOSE OF OTHER CIR-
CUITS, INCLUDING A DISTRICT OF CO-
LUMBIA CIRCUIT DECISION RELIED
UPON BY BOTH SIDES BELOW .........0...... 13

4. THE COURT OF APPEALS’ DECISION THAT
PROOF OF MERE UNEXPLAINED AB-
SENCE DURING A STRIKE CONSTITUTES
A PRIMA FACIE CASE OF STRIKING
AGAINST THE GOVERNMENT CONFLICTS
WITH RULINGS BY OTHER FEDERAL
COS ce ncccshiniesisee teh atvcaDeplipnlisimna kcal antennas 19

v1
TABLE OF CONTENTS—Continued

Page
5. THE COURT OF APPEALS APPLIED A
STANDARD OF REVIEW TO THE BOARD’S
DEVIATION FROM ITS OWN PRECEDENT
THAT IS IMPROPER UNDER THIS COURT'S
I vnc onnnsnsnsccnanstcleshavoesnnencebatinessacseessonss 21
CONCLUSION .......-.-.-..------0.0.--000---ceesssecsssnnrnncccnensnoncsnsanioe 29
APPENDIX
Appendix A. .............------:-c-ccececceseeeeceneeeeneeeseenenneeeeees la
Appendix B. ..................-.---s-:cssseesesensnenseeenneessnescesenennes 65a
Appendix C ...........-.---.--c-c-:c-neececeeeeseneeesenentenesneneenensees 1624
Appendix DD ................--.-----csececeeerseeeeescenesnnenaseneneensees 165a

int tar inden ttsintitbaesinesbanted CAE ts A AAR ha RR MANS PL Ne BNO IE

vil

TABLE OF AUTHORITIES
Cases Page

JUDICIAL DECISIONS

Adams/Baracco v. Department of Transportation,

735 F.2d 488 (Fed. Cir. 1984) -..............00000000..... passim
American Federation of Government Employees

v. General Services Administration, 711 F.2d

Sn Ss ae 15
American Postal Workers Union v. United States

Postal Service, 682 F.2d 1280 (9th Cir. 1982),

cert. denied, 459 U.S. 1200 (1983) W000... 13
Anderson v. Department of Transportation, 735

Fa Ce I IED a cvchinctiec rice sb erccnseedinisctens 6
Atchison, T. & S.F.R. Co. v. Wichita Bd. of Trade,

412 U.S. 800 (1973) _....... ~catiasbuleh Titiuitiadancaddeitiiinnen 21
Atwell v. Merit Systems Protection Board, 670

Fe I is Oe BD ii hiieecorenstennrineicoccs 22

Benson v. Dow, 520 F. Supp. 231 (W.D. Pa. 1981).. 14, 26
Bureau of Alcohol, Tobacco and Firearms v. Fed-
eral Labor Relations Authority, cert. granted,

459 U.S. , 1038 S. Ct. 784, opinion at 464 U.S.
, 104 S. Ct. Be. FASE are se 2 Seren 9
Durtington Truck Lines Inc. v. United States, 371
OP I a he a 15

Campbell v. Department of Tv ansportation, 735
F.2d 497 (Fed. Cir. 1984), petition for cert.

filed, No. 84-78 (U.S. July 18, 1984) ..000000200. 5
Cheung v. Immigration and Naturalization Service,

418 F.2d 460 (D.C. Cir. 1969) 2.002... 12
Citizens to Preserve Overton Park v. Volpe, 401

FE ss FRIST arian a tie ea ea 15
Contractors Transport Corp. v. United States, 537

ys &. eR sD. | | reese eneem 16

Devine v. Nutt, 718 F.2d 1048 (Fed. Cir. 1983),
petition for cert. filed, No. 83-1673 (U.S. April

3. . |) en ne 12
Devine v. White, 697 F.2d 421 (D.C. Cir. 1983).... 13
DiMasso v. Department of Transportation, 735

ee Se Rs es I aaa shee 11, 16

Doe v. Hampton, 566 F.2d 265 (D.C. Cir. 1977)... 12

iia a ile |

viii

TABLE OF AUTHORITIES—Continued

Page

Horne v. Merit Systems Protection Board, 684
= Ba tsa RE Ren eeneeeynrenneneree 12
Kotteakos v. United States, 328 U.S. 750 (1946).. 11
Laing v. United States, 423 U.S. 161 (1976) ......... 7

Local 777 v. N.L.R.B., 603 F.2d 862 (D.C. Cir.
RE Rnenne at DOME arce ke easenen suerte Pun ny raCON ee 22

Martel v. Department of Transportation, 735 F.2d
Se es i ID aieiiaind cet pesthicersacicnerionntarienae 4

Miller v. Bond, 641 F.2d 997 (D.C. Cir. 1981)........ 14, 26
Motor Vehicle Manufacturers Association v. State
Farm Mutual Automobile Insurance Co., 463

U.S. , 108 S.Ct. 2866 (1988) ..................... 15, 21, 26
Nagel v. Department of Health and Human Serv-

ices, 707 F.2d 1884 (Fed. Cir. 1983) ...............-.... 17, 23
NAACP v. Federal Communications Commission,

682 F.2d 988 (D.C. Cir. 1962) ............................... 22
Ommaya v. National Institute of Health, 726 F.2d

Re ra ie asec caciecsneteiceenincccescseenein 11, 12
Parsons v. Department of the Air Force, 707 F.2d

ia, ee Te wantin eiceccmcerciens 15, 18, 23
Pascal v. United States, 548 F.2d 1284 (Ct. Cl.

«Re RR RON EAR Nee nOn Re Bie enti aad ae nae ures onere me Oe 16, 17
Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177

IIIA cc, massing geseliuhcle Hagooneaieeneiieenbescaubedeisioinenblaiehniai 16
Power v. United States, 581 F.2d 505 (Ct. Cl.

1976), cert. denied, 444 U.S. 1044 (1980) ........... 18
PATCO v. Department of Transportation, 529

F. Supp. 614 (D. Minn. 1962) ............................. 4
Public Citizen v. Steed, 733 F.2d 98 (D.C. Cir.

RETR AAS eSeP Ee Rec a abner mite nee ence oan 22
Public Interest Research Group v. Federal Com-

munications Commission, 522 F.2d 1060 (1st

Cir. 1975), cert. denied, 424 U.S. 965 (1976)... 22
Rifkin v. United States, 209 Ct. Cl. 566 (1976),

cert. denied, 429 U.S. 1098 (1977) ...............-...... 18
Ryder v. United States, 585 F.2d 482 (Ct. Cl.

I isin sil castle isis cigs danced caaibaaieantheadhiainiieasbaeseebieien 13

|)

ix

TABLE OF AUTHORITIES—Continued

Page
Schapansky v. Department of Transportation, 735
rem EE Us Is MOOD acini ciccestpccacececcecseene passim
Secretary of Agriculture v. United States, 347
Se Ne I les ko 22
Securities and Exchange Commission v. Chenery
Cea ee wee ee AO i i. 16
Stringer v. United States, 90 F. Supp. 375 (Ct. Cl.
) : OER R EE ade ONES EO ee 10, 11
Tennessee Valley Authority v. Bailey, 495 F. Supp.
ee Ny NE bichiiccdets ec ek 20, 21

United Federation of Postal Clerks v. Blount, 325
F. Supp. 879 (D.D.C.), aff'd, 404 U.S. 802
ED abtheecdtecaiciicledisiiaien eens Saeed eia Se ae 20
United States v. Branch 60, National Association
of Letter Carriers, 312 F. Supp. 619 (D. Conn.

ge NEE ORS RUD TI OBEN Ne. SO ETS Oh uth ROR RON 14
United States v. Martinez, 686 F.2d 334 (5th Cir

«SPI ESRD er SCI Sea ae eA A ES Re ae 20
United States v. McCubbin, Nos. 81-2054 through

2063 (10th Cir. Aug. 22, 1983)... TER rae a 19, 20, 21
United States v. Moore, 427 F.2d 1020 (10th Cir.

RRR aR te SPE ESET 7 le ne 14
United States v. Powell, 330 U.S. 238 (1947) ....... 7
United States v. PATCO, 653 F.2d 1134 (7th Cir.),

cert. denied, 454 U.S. 1083 (1981)... 13
United States v. PATCO, 438 F.2d 79 (2d Cir.

1970), cert. denied, 402 U.S. 915 (1971) _........... 14
United States v. PATCO, 524 F. Supp. 160 (D.D.C.

ARSE Sy AR Se CUE CI ce SL 4,14
United States v. Robinson, 449 F.2d 925 (9th Cir.

Tn i 14
United States v. Standard Oil Co., 332 U.S. 301

Se NRGOR RET EE RA Beers XEON CTE CE 7

Weston v. U.S. Department of Housing and Urban
Development, 724 F.2d 943 (Fed. Cir. 1983)... 17

White v. Department of the Army, 720 F.2d 209
RAE ERE ae MEO R ER ARUN CREM SRO 12

x

TABLE OF AUTHORITIES—Continued

ADMINISTRATIVE DECISIONS Page
Bader v. Federal Aviation Administration, MSPB
No. NY075281F206 (Nov. 4, 1982) ............-. -- 28
Baracco v. Department of Transportatior., 1983
iy £L. Bi , | eee 9, 22, 23
Benson v. Department of Transportation, MSPB
No. PH075281F1021 (March 5, 1984) ................. 28, 29
Bergh v. Department of Transportation, MSPB
No. SE075281F0401 (Sept. 30, 1983)_............-.... 28
Capozzella v. Federal Bureau of Investigation, 10
ee Fe ED veesiiticniecviscncscnncienndtiasniclitinionianinbs 27
Davis v. Department of the Treasury, 8 MSPB 17
CIID sc cscitrsineaennninnnintinctctapntenectipessinentnnseininaasieideanpitiaisedateds 25
Douglas v. Veterans Administration, 5 MSPB 313
ED iiscnnctssitssssitdncsinaconctihenstesnkvessnpiicisniliibesstaponiubentinet passim
Grandison v. Department of the Navy, 7 MSPB
|S RRS er atten se ae as a A 25

Grimm v. U.S. Postal Service, 9 MSPB 491 (1982)... 25
Horne v. Interstate Commerce Commission, 3

, § 4 Se eerie 12
Ketchem v. Department of Transportation, 10

SP RR a athitenendicesianenbcinannstinie 3
Mangano v. Department of Transportation, MSPB

No. NY075281F1058 (Oct. 3, 1983) ..................... 29
Matson v. Department of Transportation, MSPB

No. DE075281F0748 (Sept. 30, 1983) ......0000...... 4
Parsons v. Department of Transportation, MSPB

No. BN075281F0626 (Oct. 6, 1983) ......:.....-.--..... 28
Ramirez v. Department of the Air Force, MSPB

No. DA07528010067 (Dec. 2, 1982) —.....-00....-.-.. 27
Ratley v. Department of the Army, 11 MSPB 564

pic cathe etastriiigesinkdaadiegceesndadciesstdtapnlcmnneniiceetati 13, 22, 23
Schapansky v. Department of Transportation, 1982

eB _,_. RSCSStey Saee oen ee o 16
Sisemoore v. Department of the Navy, MSPB No.

BN07528110207 (Oct. 28, 1982) ........................... 25

Trick v. Federal Aviation Administration, 8 MSPB
RE RINE ced, Aer tt ake Meter OMAR 20

xi

TABLE OF AUTHORITIES—Continued

Page
Washington v. Tennessee Valley Authority, 1
I a 25
Woody v. General Services Administration, 6
Se teeta 27
Yoshida v. Department of the Navy, MSPB No.
SF07528010108 (Jan. 4, 1983)... 25
Statutes
| Ri ER a eT aA passim
a ENS Ee ee ee passim
Oe spameuieieia 2, 3, 9, 10, 22
SSR nee: 3, 35,18
ot Rees 2
Civil Service Reform Act of 1978, Pub. L. No.
95-454, 92 Stat. 1111 (codified in scattered sec-
Nt I ..2---Passim
Miscellaneous
RE ee al eed ee ee 12
Notice, 48 Fed. Reg. 2235-36 (1983)... 6, 10
eg Se gE TER IORS SE ba RN ee 20

“Work Stoppages in Government, 1979,” Gov’t
Empl. Rel. Rep. (BNA) Reference File 71:
UG PE natiatniaianacidceia en ae: 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984
No.

Roy L. SCHAPANSKY, et al.,

- Petitioners,

DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

Petitioners respectfully pray that a writ of certiorari
issue to review the major air traffic controller “lead cas-”’
judgments and opinions of the United States Court of
Appeals for the Federal Circuit, issued on May 18, 1984.

OPINIONS BELOW

The majority, concurring and dissenting opinions of
the 5-judge panel in the 11 interrelated cases below were
designated by the court of appeals as lead cases for thou-
sands of similar appeals stayed pending action by this
Court, and are reported at 735 F.2d 477, et seg. Peti-
tioners’ cases appear as Appendix A hereto. The deci-
sions by the 3-member Merit Systems Protection Board
(the Board) which were reviewed by the court of appeals
are reported at 1982 FMSR {If 7047, 7050; 1983 FMSR
7019, et seq., with petitioners’ cases appearing as Ap-
pendix B hereto. The decisions by the Merit Systems Pro-
tection Board presiding officials which were reviewed by
the Board are unreported, and superseded by the full
Board’s decisions.

2

JURISDICTION

All of the interrelated judgments of the court of ap-
peals sought to be reviewed were issued on May 18, 1984.
This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS ?NVOLVED

The Civil Service Reform Act of 1978 (CSRA), Pub.
L. No. 95-454, October 13, 1978, 92 Stat. 1111, codified
in scattered sections of 5 U.S.C., provides in pertinent
parts as follows:

§ 7513 (b)
An employee against whom an action is proposed is
entitled to—

(2) a reasonable time, but not less than 7 days,
to answer orally and in writing and to furnish
affidavits and other documentary evidence in
support of the answer;

* = * *
§$ 7701 (c)
(1) Subject to paragraph (2) of this subsection, the

decision of the agency shall be sustained under sub-
section (b) only if the agency’s decision—

(B) ... is supported by a preponderance of the
evidence.
(2) Notwithstanding paragraph (1), the agency’s
decision may not be sustained . . . if the employee...
(A) shows harmful error in the application of
the agency’s procedures in arriving at such de-
cision ;

(C) shows that the decision was not in accord-
ance with law.

The interrelated civil and criminal federal anti-strike
statutes are found in titles 5 and 18, respectively, and
provide in pertinent parts as follows:

5 U.S.C. § 7311

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....
18 U.S.C. § 1918

Whoever violates the [above-quoted] provision of
section 7311 of title5...

Shall be fined not more than $1,000 or imprisoned
not more than one year and a day or both.
5 U.S.C. §§ 7311, 7513(b), 7701(c), and 18 U.S.C. § 1918
are reproduced in their entirety as Appendix C hereto.

STATEMENT OF THE CASE
Background

Petitioners herein are all air traffic controllers who
were discharged by the Federal Aviation Administration
(FAA or agency) for alleged strike participation and ab-
sence without leave (AWOL) in August of 1981.

The Professional Air Traffic Controllers Organization
(PATCO) called a strike by its members against the
agency beginning on August 3, 1981. On August 3, 1981,
at approximately 11 a.m., EDT, President Ronald Reagan
made the following widely publicized announcement re-
garding the strike:

“T must tell those who failed to report for duty this
morning they are in violation of the law and if they
do not report for work within 48 hours they have
forfeited their jobs and will be terminated.”

Schapansky v. Department of Transportation, 735 F.2d
477 (Fed. Cir. 1984) (Schapansky) App. A at la, 6a n.4.

Massive confusion existed regarding how this Presi-
dential deadline would be applied. In Ketchem v. Depart-
ment of Transportation, 10 MSPB 557, 561 (1982), the
Board stated as follows:

4

“ijn view of the multiplicity of the statements is-
suing from government officials and the contradic-
tions and ambiguities that they involved, it would
have been impossible for any defendant to know with
the requisite definiteness whether a strike or a gov-
ernment refusal to permit air controllers to work
was in progress after the three shifts had reported
subsequent to 11 a.m. on August 5.”

(quoting United States v. PATCO, 524 F. Supp. 160, 164
n.6 (D.D.C. 1981)) (footnote and citations omitted).

The agency implemented the President’s 48-hour dead-
line in a significantly different manner than the Presi-
dent directed. Under FAA General Notice (GENOT) 130
to FAA facilities, controllers were not supposed to be
issued notices of proposed termination until they missed
their first regularly scheduled shift beginning on or
after 11 a.m., EDT August 5. Baracco Appendix at
139, Adams/Baracco v. Department of Transportation,
735 F.2d 488 (Fed. Cir. 1984) (Baracco Fed. Cir. App.).
However, most of the persons who were expected to com-
ply with this deadline—the individual air traffic con-
trollers—were not advised of the agency’s departure from
the President’s directive.' Nevertheless, nationwide, ap-
proximately 1,200 controllers returned to duty prior to
‘vhat turned out to be their deadline shift and were not
disciplined. Schapansky, App. A at 6a n.4. See PATCO
v. Department of Transportation, 529 F. Supp. 614, 615
(D. Minn. 1982). Individuals who missed their deadline
shift were not permitted to report for work, even if they
attempted to do so. See, e.g., Martel v. Department of
Transportation, 735 F.2d 504 (Fed. Cir. 1984) (Martel),
App. A at 39a, 43a.

With the exception of the inserted dates and names,
each notice of proposed removal to employees was iden-
tical, charging participation in a strike against the United

1 The agency selectively called only certain air traffic controllers
to advise them of their deadlines. Matson v. Department of Trans-
portation, MSPB No. DE075281F0748 (Sept. 30, 1983).

5

States government forbidden by 5 U.S.C. § 7311 and 18
U.S.C. § 1918 and absence without leave until the date
of the notice of proposed removal (the date of the in-
dividual’s “deadline shift”). Baracco Fed. Cir. App. at
131.

Each proposed removal letter invoked the provision of
5 U.S.C. § 7513(b), which requires that a charged em-
ployee be given a “reasonable time, but not less than 7
days” to reply to the agency’s charges. These letters,
however, required an answer “within” 7 calendar days.

Petitioners submitted written requests seeking, inter
alia, information concerning discipline imposed in similar
situations in the past, to enable them to respond to the
charges, and for an extension of the time to reply to the
charges. These requests were al! denied in accordance
with agency directives delineated in GENOT 147,
Baracco Fed. Cir. App. at 141.

The agency determined that unexplained absence dur-
ing a deadline shift was sufficient proof of illegal strik-
ing. No other proof of intent or concerted activity was
required, although some additional evidence (e.g., proof
of picketing) was considered in individual cases. The
FAA admits that it “determined as a matter of policy,
that all individuals found to have participated in the un-
lawful strike would be removed” without consideration of
other relevant factors. Respondent’s Response to Na-
tional Interrogatory No. 20, App. D at 165a.

Proceedings Below

Each petitioner filed a timely petition for appeal, re-
ceived a hearing and an adverse decision from a presid-
ing official of the Board, and subsequently filed a timely
petition for review with the 3-member Board. In a series
of designated “lead case” decisions rendered in 1982 and
1983, the Board upheld each petitioner’s removal. A 5-
judge panel of the Federal Circuit upheld the Board’s
lead case decisions regarding each petitioner.?

2A petition for certiorari has been filed in the related lead case
of Campbell v. Department of Transportation, 735 F.2d 497 (Fed.

6
REASONS FOR GRANTING THE WRIT

1. THE COURT BELOW SUSPENDED THOUSANDS
OF SIMILAR APPEALS, PENDING POSSIBLE RE-
VIEW BY THIS COURT OF THESE LEAD CASES,
WHICH RAISE ISSUES OF COMPELLING PUBLIC
IMPORTANCE.

Cases and issues embraced by this petition originally
were selected by the Merit Systems Protection Board and
designated as the “lead” air traffic controller cases and
issues, the resolution of which would affect directly or
resolve similar pending appeals brought by thousands of
other air traffic controllers who were discharged for al-
legedly striking in August 1981. 48 Fed. Reg. 2235-36
(Jan. 18, 1983).

On February 24, 1983, the court of appeals entered an
order suspending all other air traffic controller cases, and
delaying docketing until it made its decision on the lead
eases and issues on a consolidated basis. The court rec-
egnized the compelling importance of these lead cases by
assigning them to a 5-judge panel. On May 18, 1984,
the court of appeals decided these lead cases and issues
and sent a Notice to Counsel and Petitioners in Air Traffic
Controller Litigation. This notice enclosed copies of the
“opinions in the Air Traffic Controller ‘Lead Cases,’ ”
and stated that the suspension, “in all other Air Traffic
Controller cases will remain in effect until final disposi-
tion of all the ‘Lead Cases.’ ” *

Cir.), petition for cert. filed, No. 84-78 (U.S. July 18, 1984), and
counsel for petitioners has been informed that a petition for
certiorari will be filed in the related lead case of Anderson v. De-
partment of Transportation, 735 F.2d 537 (Fed. Cir. 1984).

8 The court apparently took the unusual action of continuing the
suspension, rather than disposing of the other cases cn the basis of
the lead cases, because of its assessment of the likelihood that this
Court would review the decisions in this potentially landmark liti-
gation. It is submitted that such a judgment by the court of
appeals of the nature of the issues and cases involved is worthy of
weight in consideration by this Court.

Ne ala CERNE oleh od ehh

7

The court of appeals’ Notice to Counsel and Petitioners
in the suspended cases cited its decisions imposing strong
sanctions against “the prosecution of frivolous appeals.”
This will likely have a chilling effect even on many of
those with factually distinguishable cases, particularly
those who have filed pre se appeals with the court. Re-
jection of this petition would result in the worst possible
situation—leaving unanswered many issues of critical im-
portance to all federal employees and sealing the fate of
certain employees whose arguments never will be heard.
Thus, an early and definitive resolution by this Court of
controlling general issues is crucial.*

Apart from the large number of non-party discharged
air traffic controllers affected directly by these lead cases,
the broadly applicable statutory construction issues pre-
sented are unsettled, are likely to recur and are not
limited to the Federal Circuit. For example, resolution
of the harmful error rule’s applicability to agency de
partures from statutory or constitutional requirements
will have a broad impact on a wide variety of cases. The
court of appeals in effect repealed the statutory require-
ment of an irreducible minimum 7-day reply period be-
fore disciplining any federal employee, creating confusion
as to whether there is any minimum reply period. Defini-
tion of what constitutes a prima facie case of striking
against the government will determine the showing neces-
sary before any federal employee loses his or her freedom,
job or, because the government has a monopoly on a ca-
reer in the air traffic controller cases, the ability to prac-
tice a chosen profession.

This Court should resolve a conflict among the circuits
on whether removal for striking against the government
is (1) automatic and mandatory; (2) up to the agency’s
total and unreviewable discretion; or (3) may be imposed
only after a rational, judicially-reviewable agency deci-

4 See Laing v. United States, 423 U.S. 161, 167 (1976); United
States v. Standard Oil Co., 332 U.S. 301, 302 n.2 (1947); United
States v. Powell, 330 U.S. 238, 240 (1947).

8

sion. The lack of any clear guidance as to the applicable
legal standards is critical, especially in view of the likeli-
hood of future federal sick-outs and wildcat strikes re-
curring from time to time.’

The court of appeals asserted that—

We join enthusiastically in the general desire for
symmetry in law and procedure, and nothing here
said is thought to make a fundamental difference in
either (except perhaps for recognition that mitiga-
tion is irrelevant when striking is proved, infra).

Schapansky, App. A at 7a (emphasis added). After ad-
mitting that “[i]deal justice, and government personnel
regulations, envisage equal treatment of persons similarly
situated,” Schapanskg, App. A at 15a, the court of ap-
peals declined to consider whether other federal govern-
ment strikers who were treated far more leniently were
in fact similarly situated. Moreover, the court of appeals
failed to justify its singling out striking as the only of-
fense where mitigation and comparable treatment are
not relevant.

2, DENIAL OF THE STATUTORILY-MANDATED
MINIMUM PERIOD TO REPLY TO AGENCY
CHARGES REQUIRES REVERSAL OF THE
AGENCY ACTION; THE COURT OF APPEALS’
FAILURE TO SO HOLD IS ERRONEOUS AND
CONFLICTS WITH A CIRCUIT COURT DECISION
THAT RELIED UPON THIS COURT’S ANALYSIS.

Under 5 U.S.C. § 7513(b), a federal employee against
whom an agency disciplinary action is proposed is en-
titled to at least 30 days’ advance written notice to an-
swer the charges. However, when the agency has reason-
able cause to believe that the employee has committed a
crime for which a sentence of imprisonment may be im-

5 Bureau of Labor Statistics figures show that 22 federal and
Postal Service work stoppages (strikes within the meaning of F
U.S.C. § 7311) occurred from 1962 through 1979, involving more
than 200,000 employees. “Work Stoppages in Government, 1979,”
Gov’t Employee Rel. Rep. (BNA) Reference File 71: 1011, 1014.

9

posed (as the agency asserted against petitioners), the
employee is entitled to—

a reasonable time, but not less than 7 days, to an-
swer orally and in writing and to furnish affidavits
and other documentary evidence in support of the
answer.

5 U.S.C. § 7513(b) (2) (emphasis added). In her con-
curring opinion in Adams/Baracco v. Department of
Transportation, 735 F.2d 488 (Fed. Cir. 1984) (Adams/
Baracco), App. A at 20a, 36a, Judge Nies acknowledged
that a minimum 7-day reply period is “unquestionably
required by 5 U.S.C. § 7513(b) (2),” a point not disputed
by the majority opinion.*®

Under 5 U.S.C. § 7701(c) (2), the Board may not sus-
tain an agency decision if the employee “shows harmful
error in the application of the agency’s procedures” or
“shows that the decision was not in accordance with
law.” In petitioner Baracco’s case, the Board concluded
that the legislative history of the CSRA is ambiguous as
to the standard of review Congress intended to apply to
violations of statutory procedures. 198838 FMSR { 7021,
App. B, at 76a, 85a. Apparently overlooking interpretive
regulations derived from non-statutory sources, such as
rules of practice and personnel manuals, the Board incor-
rectly deduced that, because “reasonable and properly
promulgated regulations . . . have the force and effect of
law,” application of the “not in accordance with law”

®On a separate point, Judge Nies’ concurring opinion erred in
relying upon language from a report on a proposed Senate bill that
would have required reversal only where the agency’s “ ‘procedural
error substantially impaired the rights of the employees.’” App. A
at 37a. Congress specifically rejected that language in the bill and
its intent as stated in the Senate report. The existing language of
5 U.S.C. § 7701 was derived from the materially different House
bill, H.R. 11280, which accorded employees greater procedural
rights, including a greater opportunity upon appeal, to demonstrate
harmful error. See, e.g., H.R. Rep. No. 95-1403, $5th Cong., 2d
Sess. 7, 21 (1978); see also Bureau of Alcohol, Tobacco and Fire-
arms v. Federal Labor Relations Authority, 464 U.S. , 104
S. Ct. 439, 446 (1983) (Congress rejected language from Senate
bill).

10

standard to statutory violations would “render the harm-
ful error provision meaningless since no procedural vio-
lations would then be subject to it.” id. App. B at 86a.

The Board held that the agency erred by providing pe-
titioner Baracco only six days to reply—a period clearly
below the irreducible statutory minimum.’ App. B. at
91a. The court of appeals upheld the Board’s conclu-
sion that petitioner failed to prove by a preponderance
of the evidence that the agency’s error had a harmful
effect upon the outcome before the agency and thus held
that reversal was not warranted. Adams/Baracco, App.
A at 22a-23a n.8. Despite the Board’s identification of
this question as a separate lead issue,® extensive written
and oral argument from the parties and an amicus brief
from’ one of the prime congressional sponsors of the
CSRA, the court affirmed the Board and disposed of the
entire issue in a cryptic footnote. Zd.

In so ruling, the Board and the court of appeals ig-
nored the Court of Claims decision in Stringer v. United
States, 90 F. Supp. 375 (Ct. Cl. 1950). That decision
required strict compliance with Section 14 of the Vet-

7In a letter dated August 14, 1981, denying petitioner Baracco’s
request for an extension of time to reply, Chief Viselli stated that
petitioner had to reply prior to August 18, i.e., before the seventh
day. Although extensively briefed and argued, the court of ap-
peals’ majority opinion ignored this evidence and Board finding,
focusing exclusively on a separate issue, and refusing to find that
the wording of the proposed removal letter that “you may reply to
this notice .... within seven days after you receive this letter”
itself compelled a reply before the end of the seventh day. App. A
at 22a-23a n. 3. The language of the proposed notice was explicit—
petitioners had to reply within seven days—and clearly required
petitioners to reply prior to expiration of the statutory minimum
period, thus separately violating 5 U.S.C. § 7513(b).

8 Whether the provision of less than seven days in which to re-
spond to the charges against an appellant constitutes harmful
procedural error under 5 U.S.C. 7701(c)(2)(A), and/or
serves to render the FAA’s decision in those cases not in
accordance with law under 5 U.S.C. 7701(c) (2) (C).

48 Fed. Reg. at 2236.

=.

11

erans’ Preference Act (a predecessor to the CSRA),
which in turn provided that federally-employed veterans
receive the full statutorily-mandated advance written no-
tice to reply to agency charges.’ The court of appeals’
failure to consider Stringer is inconsistent with its con-
current holding in the lead case DiMasso v. Department
of Transportation (DiMasso), that it is bound by pre-
CSRA Court of Claims precedent:

this court is bound by Court of Claims precedent,
which has held that there is “nothing improper”
about about an agency’s predetermining the penalty
of removal, provided that the employee has full op-
portunity to present facts rebutting the charges.

735 F.2d 526 (Fed. Cir. 1984) (emphasis added); App.
A at 60a, 64a. Moreover, this statement conflicts with the
court’s approval of the agency’s imposition of a prede-
termined penalty on petitioner Baracco despite the
agency’s failure to afford him a “full opportunity [as de-
fined by 5 U.S.C. § 7513(b)] to present facts rebutting
the charges.”

In Ommaya v. National Institute of Health, 726 F.2d
827, 830-31 & n.56 (D.C. Cir. 1984), the court held that
the Board may not apply the harmless error doctrine
to a failure to adhere to procedures required by the
constitution or statute, because such an application
would be contrary to the principles enunciated by this
Court in Kotteakos v. United States, 328 U.S. 750, 764-

®In reversing the agency action for failure to accord the em-
ployee the full statutory time, the Court of Claims stated:

the law requires not merely that there be time to answer but
that there be thirty full days of notice .... Nor can we accept

. defendant’s contentions that plaintiff must show wherein he
was harmed by the insufficiency of the notice period and that
the doctrine of de minimis non curat lex applies here. We
cannot construe a statute that plainly says “at least thirty
days” as meahing “not quite thirty days.” The requirements
ef Section 14 are specific and mandatory. Neither this court,
nor the Civil Service Commission, nor the Chief of Engineers
can disregard them. Strict compliance is required.

Id. at 379 (citations omitted).

12

65 (1946) and by the D.C. Cireuit in White v. Depart-
ment of the Army, 720 F.2d 209 (D.C. Cir. 1983).

The D.C. Circuit’s decision in Ommaya was handed
down after oral argument in the present cases. On March
27, 1984, counsel for petitioners submitted the opinion to
the Federal Circuit pursuant to Local Ruie 16, explicitly
referencing the harmful error ruling.*® Nevertheless, none
of the Federal Circuit opinions in these cases discussed
either the D.C. Circuit’s decision or its rationale.”

It is well-established that the rule of harmless error
must be used with extreme caution where, as here, basic
procedural rights are at stake. See, e.g., Doe v. Hampton,
566 F.2d 265, 277-78 n.29 (D.C. Cir. 1977); Cheung v.
INS, 418 F.2d 460, 464 (D.C. Cir. 1969). The D.C. Cir-
cuit has stated that “the Board should not be in the busi-
ness of affirming administrative decisions based upon how
an agency might have acted if it had followed proper
procedures.” Horne v. MSPB, 684 F.2d 155, 157-58
(D.C. Cir. 1982).%* Moreover, courts have recognized
that some procedural rights ave so significant that they
constitute “substantial rights of an employee” such that
their denial is harmful error, per se, “even absent evi-

10 Another Federal Circuit decision involving the nature of the
requisite harmful error under the CSRA, which was invoked by
petitioners and the agency below, is the subject of a pending peti-
tion for certiorari filed by the Solicitor General. D’vine v. Nutt,
718 F.2d 1048 (Fed. Cir. 1983), petition for cert. filed No. 83-1673
(U.S. April 13, 1984).

11 Furthermore, none of the Federal Circuit opinions discussed
the argument submitted in an amicus curiae brief by the Honorable
William F. Ford, who served as chairman of the House Committee
which reported the bill that became the CSRA, was a floor manager
for the bill in the House and served on the conference committee.
Congressman Ford’s analysis of the CSRA’s leyislative history
demonstrated that employees should not be required to prove that
an agency’s violation of the statutory right to a minimum 7-day
reply period constituted harmful error.

12In Horne, the D.C. Circuit reviewed an MSPB decision that
relied heavily on the “harmful error” doctrine. Horne v. Interstate
Commerce Commission, 3 MSPB 259 (1981).

13

dence that the violation led to a loss of evidence or other
measurable adverse effects.” Devine v. White, 697 F.2d
421, 443 (D.C. Cir. 1983). See Ryder v. United States,
585 F.2d 482, 487-88 (Ct. Cl. 1978).

The right to a meaningful opportunity to reply, and
the statutory assurance of at least seven days’ time to
prepare for the reply, are recognizei as such “substantial
rights.” In Ratley v. Department of the Army, 11 MSPB
564, 567 (1982), the Board applied this principle to the
7-day requirement.”

3. THE COURT OF APPEALS’ RULING REGARDING
THE PENALTY IMPOSED UPON PETITIONERS
CONFLICTS WITH ITS OWN RULINGS AND
THOSE OF OTHER CIRCUITS, INCLUDING A
DISTRICT OF COLUMBIA CIRCUIT DECISION
RELIED UPON BY BOTH SIDES BELOW.

Because of a conflict among the circuits on the issue of
whether removal is automatic and mandatory for strik-
ing, review by this Court is necessary to ensure national
uniformity on an issue of paramount importance to the
proper functioning of the civil service system.

The Ninth Circuit has held, without any substantive
analysis, that 5 U.S.C. § 7311 forbids the continued em-
ployment of federal, including Postal Service, strikers.
American Postal Workers Umon v. United States Postal
Service, 682 F.2d 1280 (9th Cir. 1982), cert. denied, 459
U.S. 1200 (1983). To the contrary, the Seventh Circuit
has held explicitly that the federal government is not
required to fire striking employees. In United States v.
PATCO, 653 F.2d 1134, 1141 (7th Cir.), cert. denied,
454 U.S. 1083 (1981), which dealt with an alleged 1980
PA~CO strike at a single facility, the court reasoned
that requiring the federal government to fire all strikers
would impair seriously provision of essential services, cre-
ating “precisely the sort of result that the statutory pro-

18 See section 5, infra.

14

visions were intended to prevent.” ‘* Furthermore, the
Second Circuit has noted that, although section 7311 “ap-
pears to speak in absolute terms ... [t]here is a sub-
stantial question whether this statute must be read in a
manner which would require the government to dismiss
all controllers ....” United States v. PATCO, 438 F.2d
79, 82 n.2 (2d Cir. 1970), cert. denied, 402 U.S. 915
(1971).

Other courts have condoned the practice of imposing
lesser penalties than removal on striking federal employ-
ees, including air traffic controllers."* Moreover, if sec-
tion 7311 were to require that strikers be fired, it would
also bar their rehiring, for it states that a striking em-
ployee “may ‘not accept or hold” a government position.
Injunctions against strikes by federal workers consist-
ently have included “back-to-work” clauses that would be
unlawful if section 7311 were an absolute ban on em-
ployment of strikers.’* Finally, in the instant case, Pres-
ident Reagan's 48-hour moratorium would be ultra vires
under such an interpretation of section 7311.

In their briefs and oral arguments to the court of ap-
peals, both sides relied upon the following holding of the
D.C. Circuit condemning automatic agency imposition of
one uniform penalty for a given offense regardless of in-
dividual circumstances:

14 The govenrment’s brief in that case characterized dismissal
of striking controllers as “a preposterous remedy for the FAA to
consider.” It further noted, “In the event of a nationwide strike
the overa]] remedy would be more catastrophic than a strike itself.”
These statements are inconsistent with respondent’s position in the
briefs below in the present cases, demonstrating that the govern-_
ment itself is confused on this point.

15 Miller v. Bond, 641 F.2a 997, 1000 (D.C. Cir. 1981); Benson
v, Dow, 520 F. Supp. 231, 232-33 (W.D. Pa. 1981).

16 See, e.g., United States v. Robinson, 449 F.2d 925, 928 n.6 (9th
Cir. 1971)* United States v. Moore, 427 F.2d 1020, 1022 (10th Cir.
1970) ; United States v. PATCO, 524 F. Supp. at 164; United States
v. Branch 60, National Association of Letter Carriers, 312 F. Supp.
619, 622 (D. Conn. 1970).

15

An agency must therefore select an appropriate
disciplinary sanction bosed on the specific facts of
the particular case before it; it may not automati-
cally impose a fixed penalty for a specific category of
misconduct regardless of individual factors.

Parsons v. Department of the Air Force, 707 F.2d 1406,
1410 (D.C. Cir. 1983) (citing Douglas v. Veterans Ad-
ministration, 5 MSPB 313 (1981)) (emphasis added).
See American Federation of Government Employees v.
General Services Administration, 711 F.2d 261, 265 (D.C.
Cir. 1983). Despite the unusual unanimous agreement
by the parties on the most persuasive applicable prece-
dent, the court of appeals did not cite Parsons, and issued
a decision squarely in conflict with Parsons and the
Board’s seminal Douglas decision.”

In addition, the court of appeals’ lead case decisions,
while purporting not to decide whether removal is man-
datory for striking, Schapansky, App. A at 14a, adopted
a course that, from an equal protection standpoint, is
manifestly unfair and unworkable. The court required
federal agencies neither (a) to fire all strikers nor (b)
to make reasoned penalty choices based on individual cir-
cumstances and to justify such decisions in light of al-
leged disparate punishments imposed in comparable situa-
tions. Instead, the court essentially held that Congress,
in enacting section 7311, intended to allow federal agen-
cies to be arbitrary, granting them unreviewable discre-
tion to pick and choose at random or on some other irra-
tional basis which situations and individuals will be sub-
ject to the ultimate civil service penalty and which will
receive little or no punishment for the same conduct."*

17 See section 5, infra.

1* See footnotes 1, supra and 34, 35, infra, for examples of arbi-
trary treatment by the agency and the Board. Such unrestrained
agency action has been condemned by this Court in a variety of
situations. E.g., Motor Vehicle Manufacturers Association v. State
Farm Mutual Automobile Insurance Co., 463 U.S. , 103 S.Ct.
2856 (1983); Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402 (1971) ; Burlington Truck Lines, Inc. v. United States, 371 U:S..

16

The court of appeals’ affirmance of the penalty imposed
in Schapansky fundamentally misreads the Board deci-
sions in question and conflicts with the court’s own prece-
dent and decisions by other circuits. Illustrating perva-
sive confusion on this point are two diametrically op-
posed statements by the court in Schapansky of what the
Board held below. The court erroneously stated:

Reading [5 U.S.C.1 § 7311 as mandating removal
when a charge of striking is sustained, the Board
rejected Schapansky’s contention that removal was
unreasonable.

App. A at 5a (emphasis added).’® The court correctly
stated about the same Board decision:

Sustaining the agency’s determination that dis-
charge was an appropriate penalty, the Board de-
clined to rule on whether it had authority to mitigate
it. In light of 5 U.S.C. § 7311, it held that dismissal
“cannot be deemed clearly excessive or dispropor-
tionate to a sustained charge of striking.”

Id. at 12a (emphasis added).

The court’s confusion extended to its own precedent,
as exemplified by the following statement:

this court is bound by Court of Claims precedent,
which has held that there is “nothing improper”
about an agency’s predetermining the penalty of re-
moval, provided that the employee has full oppor-
tunity to present facts rebutting the charges.

DiMasso, App. A at 60a, 64a (citing Pascal v. United
States, 543 F.2d 1284, 1289 (Ct. Cl. 1976)) (footnotes

156 (1962); SEC v. Chenery Corp., 318 U.S. 80 (1943); Phelps
Dodge Corp. v. NLRB, 313 U.S. 177 (1941). See also Contractors
Transport Corp. v. United States, 5837 F.2d 1160 (4th Cir. 1976)
(disparate treatment of similarly situated applicants arbitrary and
capricious because rational basis for decision not discernible from
agency order).

19 The Board in fact stated in dicta that the statute could be read
to mandate removal] under one possible reading. Schapansky, App.
B at 65a, 72a.

17

omitted). See Schapansky, App. A at 19a. Because of
this mistaken conclusion that Pascal had already decided
that issue, the court of appeals failed to engage in any
analysis. The language that the court of appeals viewed
as foreclosing treatrnent of this issue consists of an in-
timation of the Court of Claims in dicta. In Pascal, the
Court of Claims specifically found that the plaintiff’s
charges that the agency had predetermined to remove
him were “not proven.” Thus, its subsequent discussion
concerning the propriety of the agency making up its
mind about the penalty, is pure dicta and not binding
authority as the court stated in Schapansky.

The court of appeals correctly cited its prior ruling
that agency penalties will be overturned in either of two
situations, where—

the penalty exceeds that permitted by statute or reg-
ulations or is so harsh that it amounts to an abuse
of discretion .... Weston v. U.S. Department of
Housing and Urban Development, [724 F.2d 943,
949 (Fed. Cir. 1983) ].

Schapansky, App. A at 12a (emphasis added). Three
paragraphs later, however, the court ruled that mitiga-
tion is irrelevant in these cases because “Congress has
determined that removal is an appropriate penalty for
striking against the government.” Jd. at 13a (emphasis
added). Congress’ determination that removal is an ap-
propriate penalty obviously only satisfies the first half of
the 2-part inquiry set forth in Weston and endorsed in
Schapansky. Court of appeals and Board precedent also
required the agency to consider whether, given all the
relevant factors, including mitigation and consistency of
the penalty with those imposed upon other employees for
the same or similar offenses, the penalty was an abuse of
discretion.” Nagel v. Department of Health and Human
Services, 707 F.2d 1384, 1386-87 (Fed. Cir. 1983); Par-

20 See section 5, infra, on the Board’s disregard of its own
precedent.

18

sons v. Department of the Air Force, 707 F.2d at 1410;
Douglas v. Veterans Administration, 5 MSPB at 331-32."

Only if Congress had determined that removal were
the only appropriate penalty for striking against the gov-
ernment (i.e., removal is mandatory, with no discretion
vested in agencies to make reasoned decisions) would all
of the numerous potentially relevant factors be irrele-
vant.22. The court of appeals explicitly declined to so rule,
stating: “Whether removal is mandatory under 5 U.S.C.
§ 7311 or 18 U.S.C. § 1918 need not be decided here.”
Schapansky, App. A at 14a.** Indeed, respondent re-
quested that the court avoid this issue,* apparently so as
to preserve agency discretion not to remove all strikers
under all circumstances. What the court failed to recog-
nize, however, is that such discretion must be exercised
in a reasonable fashion, after taking due account of all
relevant factors. These factors include, inter alia, con-
sistency of the penalty with that imposed in comparable
situations. The court treated this factor as irrelevant in
Schapansky, id. at 13a, despite the necessity of evaluat-
ing consistency to restrain arbitrary agency punishments
for the same conduct, varying from no discipline to re-
moval with a permanent bar on re-employment.

21 See note 31, infra, on Douglas.

22 Douglas specifically stated that “a penalty may be excessive in
a particulat case even if within the range permitted by statute or
regulation.” 5 MSPB at 333 n.71 (citing Power v. United States,
581 F.2d 505, 507-08 (Ct. Cl. 1976), cert. denied, 444 U.S. 1044
(1980); Rifkin v. United States, 209 Ct. Cl. 566, 584-85 (1976),
cert. denied, 429 U.S. 1098 (1977)).

235 U.S.C. § 7311 previously read “[n]o person shall accept or
hold office or employment in the government of the United States
who participates in a strike.” Pub. L. No. 84-330, § 18 p-r, 69 Stat.
624 (1955), reprinted in 1955 U.S. Code Cong. & Ad. News 704 (em-
phasis added). In 1966, Congress replaced the mandatory word
“shall” with the term “may” in the current version of § 7311 “[ajn
individual may not accept or hold a position... .” Pub. L. No. 89-
554, 80 Stat. 378. Apparently, this change was effected to permit
reasoned, flexible responses to strikes.

*4 E.g., Baracco Federal Circuit Respondent’s Brief at 44.

19

The court erroneously viewed the penalty analysis in
all-or-nothing terms; prior court cases approving the con-
tinued employment of government strikers “cannot be
viewed as forever binding the government against the
removal of any striker under any circumstances.” Scha-
pansky, App. A at 14a (emphasis added). This straw
man misstates the alternative to the court’s abdication
of its responsibility to decide the issue. The real alter-
native is Board and judicial review to ensure that the
agency made a rational decision and demonstrated legiti-
mate reasons for disparate treatment.

4. THE COURT OF APPEALS’ DECISION THAT
PROOF OF MERE UNEXPLAINED ABSENCE
DURING A STRIKE CONSTITUTES A PRIMA
FACIE CASE OF STRIKING AGAINST THE GOV-
ERNMENT CONFLICTS WITH RULINGS BY
OTHER FEDERAL COURTS.

In Schapansky, App. A at 10a, the court of appeals
held that “[u]nexplained absence during a strike of gen-
eral knowledge establishes that the employee ‘intended’ to
strike” and thus suffices to constitute a prima facie case
against an employee. The court concluded that “[i]f a
requirement for proof of intent resides in 5 U.S.C. § 7311,
(and we need not and do not decide that question here)
proof of general intent suffices.” Jd.

In a decision stemming from the same August 1981
PATCO strike involved in the lead cases, however, the
Tenth Circuit held that proof of (a) FAA wi ‘nings of
the illegality of a strike and the requirement to contact
the FAA and show availability to work; (b) the defend-
ants’ unexplained, unauthorized absence both before and
after being ordered to return to duty; and (c) their vote
for, and support of, an averted June 1981 strike, may
have shown parallel activity, but was insufficient to show
the requisite concerted activity in August to prove strik-
ing. United States v. McCubbin, Nos. 81-2054 through

20

9063 (10th Cir. Aug. 22, 1983);% see United States v.
Martinez, 686 F.2d 334 (5th Cir. 1982).

The court of appeals attempted to dismiss these cases
as “inapt” in Adams/Baracco, App. A at 25a, because
they were “criminal cases, in which proof must meet a
beyond-a-reasonable doubt standard and in which mere
proof of absence was found consistent with resignation,”
citing McCubbin and Martinez. The “resignation” analy-
sis applies at most, however, only to Martinez, leaving an
unresolved conflict with McCubbin.**

Any contention that McCubbin is inapplicable to the
instant situation solely because it is a criminal contempt
case is unconvincing. It is insignificant whether, in es-
tablishing a violation of 5 U.S.C. § 7311, the govern-
ment must prove specific intent beyond a reasonable doubt
(as applied in McCubbin), by clear evidence (as applied
in Tennessee Valley Authority v. Bailey, 495 F.Supp.
711 (E.D. Tenn. 1980)) or by a preponderance of evi-
dence (as applicable to the instant case). The important
point is that proof of a petitioner’s specific intent to
withhold his or her services in concert with others is a
necessary element of establishing any violation by that
petitioner of section 7311.7 Apparently, the Board pre-
viously recognized this principle in the case of Trick v.
Federal Aviation Administration, 8 MSPB 618, 621

25 Tenth Circuit Local Rule 17 provides in relevant part: “Unpub-
lished opinions, although unreported, can nevertheless be cited, if
relevant, in proceedings before this or any other court.”

26 The Tent’: Circuit, citing the civil standards established in
Tennessee Valley Authority v. Bailey, 495 F. Supp. 711 (E.D. Tenn.
1980), held that the government did not sustain its burden of
proving criminal contempt of the anti-strike order because it
proved merely parallel, not concerted, activity.

27 The terms “strike” and “participate in a strike” as used in
5 U.S.C. § 7811 mean “an actual refusal in concert with others to
provide services to one’s employer.” United Federation of Postal
Clerks v. Blount, 825 F. Supp. 879, 884 (D.D.C.) (3-judge court),
aff'd, 404 U.S. 802 (1971). This definition was endorsed by the
court of appeals in Schapansky, App. A at 8a.

21

(1981), wherein it stated, “the issue as to whether the
appellants willfully participated in an unlawful strike
may not be determined except on the basis of the intent
manifested by the individual appellants.”

In the lead cases, however, the Board and the court of
appeals failed to apply this standard, choosing instead to
hold that a prima facie case of striking may be estab-
lished by merely proving unauthorized absence during a
strike of general knowledge. This holding conflicts with
McCubbin and Tennessee Valley Authority v. Bailey, 495
F.Supp. at 712, a civil case which held that proof of the
defendants’ absence from work without explanation was
insufficient to demonstrate that “any one or more of the
21 defendants . . . had actually refused in concert with
someone else to provide services to the plaintiff.”

5. THE COURT OF APPEALS APPLIED A STAND-
ARD OF REVIEW TO THE BOARD’S DEVIATION
FROM ITS OWN PRECEDENT THAT IS IMPROPER
UNDER THIS COURT'S DECISIONS.

Recent decisions by this Court have mandated a rigor-
ous standard of judicial review for agency departures
from a course of behavior or interpretation of a statute.
For example, this Court has emphasized that—

A “settled course of behavior embodies the agency’s
informed judgment that, by pursuing that course, it
will carry out the policies committed to it by Con-
gress. There is, then, at least a presumption that
those policies will be carried out best if the settled
rule is adhered to.” Atchison, T & S.F.R. Co. v.
Wichita Bd. of Trade, 412 U.S. 800, 807-08 (1973).
Accordingly, an agency changing its course... . is
obligated to supply a reasoned analysis for the
change beyond that which may be required when an
agency does not act in the first instance.

Motor Vehicle Manufacturers Association v. State Farm
Mutual Automobile Insurance Co., 463 U.S. —., 103

22

S.Ct. 2856, 2866 (1983).2* These standards of review
have been applied by lower courts in a wide range of
factual circumstances.”

Review by this Court is necessary to correct the court
of appeals’ failure to apply the requisite standard of re-
view to the Board’s unwarranted departure from its
settled course of behavior. The Board decisions that were
affirmed by the court of appeals were rife with unex-
plained, sharp changes in course and departure from es-
tablished Board precedent. The most dramatic example
is the Board’s 180 degree departure (without explicitly
overruling) from the following holding:

Because 5 U.S.C. § 7513(b) (2) provides that an em-
ployee must have at least 7 days to respond to an
agency charge, any shorter period of time is in-
herently unreasonable and violates the requirements
mandated by statute and is thus net in accordance
with law. ... [We find that a suspension taken
without complying with the procedural requirements
of 5 U.S.C. § 7513(b) (2) clearly constitutes harm-
ful error under 5 U.S.C. § 7701 (ce) (2) (A).

Ratley v. Department of the Army, 11 MSPB 564, 567
(1982) (citations and footnotes omitted) (emphasis
added).

In its opinion in Baracco, the Board contradicted this
specific language and concluded that the agency decision
in Ratiey was reversed, not because violation of section
7513(b) (2) rendered the decision “not in accordance
with law,” but rather because reduction of the reply pe-

28 Generally, an agency must follow its own precedent or explain
its reasons for refusing to do so in a particular case. Secretary
of Agriculture v. United States, 347 U.S. 645, 652-54 (1954);
see Public Interest Research Group v. FCC, 522 F.2d 1060, 1064
(1st Cir. 1975), cert. denied, 424 U.S. 965 (1976).

29 F.g., Public Citizen v. Steed, 733 F.2d 93, 98 (DC. Cir. 1984);
NAACP v. FCC, 682 F.2d 993, 998 (D.C. Cir. 1982); Local 777 v.
NLRB, 6038 F.2d 862, 882 (D.C. Cir. 1978). See Atwell v. Merit
Systems Protection Board, 670 F.2d 272, 281-82 (D.C. Cir. 1981)
(strict standard of review of Board construction of the CSRA).

/

23

riod substantially impaired Ratley’s ability to defend
himself, thus supporting a finding of harmful error.
App. B at 89a. The Board’s abrupt, unjustified departure
from the course it established in Ratley renders its de-
cision in the instant case arbitrary and capricious. De-
spite briefing and argument on this point, the court of
appeals’ terse affirmance did not even refer to the Board’s
abrupt reversal of its interpretation of the CSRA in
Ratley. Adams Baracco, App. A at 22a-23a n.3.

The court of appeals also affirmed without proper scru-
tiny the Board’s unwarranted departure from its funda-
mental precedents on rational imposition of penalties. In
the seminal, judicially-sanctioned case of Douglas v. Vet-
erans Administration, 5 MSPB at 332-33,” the Board
established the rule that, in reviewing an agency’s im-
position of a penalty, it must assure that the agency con-
scientiously considered the relevant factors and reached
a responsible balance within the limits of reasonableness.
If the Board finds that the agency failed to weigh the
relevant mitigating and other factors or that the agency’s
judgment clearly exceeded the limits of reasonableness,
the Board must specify how the agency’s decision should
be corrected to bring the penalty within the parameters
of reasonableness. Jd. at 332."

3 See, e.g., Nagel v. Department of Health and Human Services,
707 F.2d 1384, 1386 (Fed. Cir. 1983); Parsons v. Department of
the Air Force, 707 F.2d 1406, 1409 (D.C. Cir. 1983).

31 The Board stated that the relevant factors include the fol-
lowing:
(1) The nature and seriousness of the offense, and its relation
_to the employee’s duties, position and responsibilities, includ-
ing whether the o’‘fense was intentional or technical or inad-
vertent, or was committed maliciously or for gain, or was
frequently repeated ;
(2) the employee’s job level and type of employment, including
supervisory or fiduciary role, contacts with the public, and
prominence of the position;

(3) the employee's past disciplinary record;

24

Douglas and its progeny require that, before an agency
may impose a penalty on an employee, several relevant
factors must be considered and weighed. Not only did
the Board in Schapansky ignore relevant mitigation and
consistency of the penalty factors, but it implicitly
eliminated one of the two bases upon which Douglas
established that an agency penalty may be reversed—
i.e., failure to consider all relevant factors. The Board
addressed only the unreasonableness of the penalty as a
ground for reversal.

Moreover, the nature and seriousness of the offense ex-
planation the Board offered (which was endorsed by the
court of appeals, Schapansky, App. A at 13a) for depart-
ing from the norm conflicts with previous Board deci-
sions. In reviewing a removal of an employee for threat-
ening an agency investigator with a loaded gun, the
Board held that the seriousness of the offense cannot

(4) the employee’s past work record, including length of
service, performance on the job, ability to get along with
fellow workers, and dependability ;

(5) the effect of the offense upon the employee’s ability to
perform at a satisfactory level and its effect upon supervisors’
confidence in the employee’s ability to perform assigned duties;
(6) consistency of the penalty with those imposed upon other
employees for the same or similar offenses;

(7) consistency of the penalty with any applicable agency
table of penalties;

(8) the notoriety of the offense or its impact upon the repu-
tation of the agency;

(9) the clarity with which the employee was on notice of any
rules that were violated in committing the offense, or had been
warned about the conduct in question; |

(10) potential for the employee’s rehabilitation ;

G4) mitigating circumstances surrounding the offense such
as unusua! job tensions, pevsonality problems, mental impair-
ment, harassment, or bad faith, malice or provocation on the
part of others involved in the matter;

(12) the adequacy and effectiveness of alternative sanctions
to deter such conduct in the future by the employee or others.

Id. at 332 (footnote omitted).

5 Diatiattis,

lly em, wells Nici h aliens Nay tgtctireen siti. eae

25

justify ignoring all mitigating and other factors, even
in cases where the conduct charged may constitute a
felony—

In his initial decision, the presiding official found
that although vhe agency had not considered factors
such as appellaat’s length of service and his past
disciplinary vecord, these factors were not relevant
in view of the “egregious” nature of appellant’s con-
duct which warranted removal. We disagree. In
Douglas v. Veterans Administration, MSPB Docket
No. SF075299024 at 33-34 (April 10, 1981), we
noted that not all of the factors which are generally
recognized as relevant would be pertinent in every
case. However, the nature and seriousness of the
offense is but one of the factors which should be con-
sidered and weighed in determining the reasonable-
ness. Thus, although the nature of the offense may
be so serious as to outweigh the other factors, it
does not follow that the other factors can be ignored.
Id. at 33-34.

Sisemoore v. Department of the Navy, MSPB No.
BN07528110207 (Oct. 28, 1982) (Slip op. at 2) (em-
phasis added) .*”

The court of appeals specifically approved the Board’s
ruling in the lead cases, contrary to Board precedent in
Douglas and Sisemoore, that the serious nature of the
offense justified disregarding other factors completely.
Schapansky, App. A at 18a. Logically, however, it is

*2 See cases reversing agency removals for failure to weigh miti-
gating factors: Washington v. Tennessee Valley Authority, 1 MSPB
525 (1981) (possession of firearm on agency property); Davis v.
Department of the Treasury, 8 MSPB 17 (1981) (failure to pay
income tax timely); Grimm v. U.S. Postal Service, 9 MSPB 491
(1982) (second offense of assault) ; Grandison v. Department of the
Navy, 7 MSPB 194 (1981) (“serious” offense of assault). See
also section 3, supra; Yoshida v. Department of Navy, MSPB No.
SF07528010108 (Jan. 4, 1983) (upholding 15-day disorderly con-
duct suspension for throwing a wrench at a supervisor while shout-
ing threatening remarks) .

26

precisely in this one area where the court condoned ig-
noring other factors—where the most serious penalties
are involved—that such factors as consistency of the
penalty and mitigation are most important.

Here, for example, petitioner Roy L. Schapansky served
as an Air Force fighter pilot, was a Korean War veteran,
had 24 years of unblemished and honored service as an
air traffic controller, and was eligible for retirement in
six months when he was fired. See Schapansky Fed. Cir.
App. at 110, 122-24, 138. He attempted to return to
work on August 17, 1981, but was not permitted to do
so. Id. at 138. The court of appeals and the Board erred
in failing to require that the agency at least take these
relevant factors into account in assessing the penalty
(see Douglas, supra n.31).

The court of appeals’ decision cannot be allowed to
stand under this Court’s test—

we must “consider whether the decision was based on
a consideration of the relevant factors and whether
there has been a clear error of judgment.” Normally
an agency rule would be arbitrary and capricious if
if the agency has relied on factors which Congress
has not intended it to consider, [or] entirely failed
to consider an important aspect of the problem....
The reviewing court should not attempt itself to
make up for such deficiencies: “we may not supply
a reasoned basis for the agency’s action that the
agency itself has not given.”

Motor Vehicle Manufacturers Association v. State Farm
Mutual Automobile Insurance Co., 463 U.S. at ——, 103
S.Ct. at 2866-67 (citations omitted) (emphasis added).

Furthermore, the Board’s holding conflicts with the
admitted fact that employees who participated in strikes
against the FAA in 1970 and 1981 are now employed
by the agency. £.g., Schapansky Fed. Cir. App. at 121.
See Miller v. Bond, 641 F.2d 997 (D.C. Cir. 1981); Ben-
son v. Dow, 520 F. Supp. 231 (W.D. Pa. 1981). The
Board held previously that—

27

[W]here an appellant raises an allegation of dis-
parate treatment in comparison to specified employ-
ees, the agency must prove a legitimate reason for
the difference in treatment by a preponderance of
the evidence before the penalty can be upheld.
Douglas v. Veterans Administration, 5 MSPB 313,
333-34 (1981).

Woody v. General Services Administration, 6 MSPB 410,
411 (1981).

In Ramirez v. Department of the Air Force, MSPB
No. DA07528010067 (Dec. 2, 1982), the Board ruled that
the presiding official wrongfully had placed the burden
to establish disparate treatment on the appellant, when,
properly, “the agency had the burden of proving legiti-
mate reasons for the difference in treatment.” Jd. at 3,
citing Woody. Here no such showing was made by the
agency.

In Capozella v. Federal Bureau of Investigation, 10
MSPB 474 (1982), the Board held that a reduction in
grade was proper rather than the removal imposed by
the agency. The Board placed great weight on evidence
that, while the appellant FBI agent was removed for
wearing women’s clothing on duty for misguided pur-
poses, 12 other special agents who had engaged in serious
misconduct varying from driving while intoxicated to as-
sault were given more lenient punishment ranging from
censure to a 30-d9y suspension. The behavior that the
Board compared to Mr. Capozzella’s offense described a
far greater range of misconduct than any difference be-
tween the charges against petitioners and the conduct
committed by the 1970 and 1981 returning strikers.

Douglas and its progeny are inconsistent with the
Board’s position here. As discussed in section 3, supra,
the court of appeals made an unsupportable attempt to
distinguish petitioners’ case from the Douglas line of de-
cisions—“Congress has determined that removal is an
appropriate penalty for striking.” Schapansky, App. A
at 13a (emphasis added). See footnote 22, supra.

28

Despite the fact that petitioners presented these argu-
ments in the lead cases, the court of appeals dismissed
them with an inexplicable, terse statement in Schapansky,
App. A at 15a, that “amici’s strong assertion that the
Board disregarded here its own approach to determina-
tion of the appropriateness of a penalty [citing Douglas
and Woody], is unsupported in the record.” What is
unsupported is this bald assertion by the court. Nowhere
in the record did the agency, the Board or the court
analyze mitigating factors and disparate punishment as
is required under applicable precedent.”

The court of appeals illogically constructed a blanket
distinction between those strikers who, for example, un-
knowingly happened to return to work on or before what
turned out to be their extended August 18th deadline
shift (and who were not punished) and those who at-
tempted to return during or after their August 5th dead-
line shift, but were turned away and dismissed.“ The
court’s bright line distinction between those who “elected’”
to return and those who “chose not to do so,” Schapan-
sky, App. A at 14a, ignored the fact that many of those
fired did elect to return, with only bad luck separating

%8 Even if it were generally true in other contexts that “[u|neven-
ness in application of a penalty is not a ground for invalidating it,”
Schapansky, App. A at 14a, the Board in these cases erred by
deviating unjustifiably from its own precedent requiring the agency
to prove legitimate reasons for disparate punishment.

* See, e.g., Benson v. Department of Transportation, MSPB No.
PH075281F1021 (Mar. 5, 1984) (slip op. at 7) (“confusion en-
gendered by the President’s statement and statements by agency
officials” ) ; Statement of the Case, supra; compare Bader v. Federal
Aviation Administration, MSPB No. NY075281F206 (Nov. 4, 1982)
(unappealed final presiding official decision) (reinstating 3 con-
trollers who tried to return 6 hours after the start of their 8 a.m.
August 6th deadline shift), with Parsons v. Department of Trans-
portation, MSPB No. BN075281F0626 (Oct. 6, 1983) (upholding
dismissal of controller who attempted to return 6 hours after the
start of his 2 p.m., August 5th deadline shift), and Bergh v. De-
partment of Transportation, MSPE No. SE075281F0401 (Sept. 30,
1983) (upholding dismissal of controller who tried to return on

August 6th).

29

them from those who, equally ignorant as to their dead-
lines, happened to return in time.*

CONCLUSION

For the foregoing reasons, the petition for a writ of
certiorari should be granted.

Respectfully submitted,

RICHARD J. LEIGHTON
GLENN P. SUGAMELI
Risa D. SANDLER
MARGARET S. DAILEY
2033 M Street, N.W.
Washington, D.C. 20036
(202) 785-4800

Counsel for Petitioners

August, 1984

% Compare Mangano v. Department of Transportation, MSPB
No. NY075281F1058 (Oct. 3, 1983) (reversing removal of controller
who did not attempt to return when he found out his leave had
been cancelled—*“[a]ppellant’s contention that he thought it was
too late to return to work after receipt of his notice is logical and
further corroborated by appellant’s testimony that another air
traffic controller whom he specifically identified by name was not
allowed to return to work because he reported one hour past his
deadline shift.”) (slip op. at 3), with Benson v. Department of
Transportation, supra (reversing removal of controllers who were
prematurely told by their supervisor that they had been ii:ed, but
affirming dismissal of controllers who relied upon the samc in-
formation as relayed by the reinstated controllers) (see Devaney
dissent).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2623%3A1. Public record. Not legal advice.