Petition for Writ of Certiorari — Campbell v. Department of Transportation

re a Oe oe ee any

Office -Surtere Couit, US.

JUL 9 1984

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{APEX VOER UL STEVES,

84-76; | |

C Set A

In The oe

Supreme Court of the United States

October Term, 1983

ray

Vv

ROBERT L. CAMPBELL, et al,

Petitioners,

vs.

DEPARTMENT OF TRANSPORTATION ;

FEDERAL AVIATION ADMINISTRATION,

Respondents.

co)

ON WRIT OF CERTIORARI TO THE

FEDERAL CIRCUIT COURT OF APPEALS

o

PETITION FOR WRIT OF CERTIORARI

ra

Vw

KennetH H. Stern

1763 Franklin Street

Denver, CO 80215

Telephone: (303) 861-858

Attorney for Petitioners

oO

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED FOR REVIEW

A. DID THE CHANGING OF THE BURDEN OF

PROOF AND THE CREATION OF A NEW PRE-

SUMPTION, AFTER THE PETITIONERS’ HEARING

VIOLATE THE ADMINISTRATIVE PROCEDURE

ACT OR THE PETITIONERS’ RIGHT TO THE DUE

PROCESS OF LAW?

B. DID THE FEDERAL CIRCUIT COURT OF

APPEALS COMMIT ERROR IN HOLDING THAT

MERE ABSENCE DURING A STRIKE OF GENERAL

KNOWLEDGE CAN SUSTAIN A _ FINDING OF

STRIKE PARTICIPATION?

C. DID THE FAILURE OF THE AGENCY TO

GIVE A FULL SEVEN DAYS TO RESPOND TO THE

NOTICE OF PROPOSED REMOVAL REQUIRE RE-

VERSAL OF THE TERMINATION OF THE PETI-

TIONERS? |

D. DID THE PROMULGATION OF ADVISORY

OPINIONS VIOLATE 5 U.S.C. 1205(g) AND THE

PETITIONERS’ RIGHT TO THE DUE PROCESS OF

LAW?

E. IS REMOVAL THE MANDATORY MINI-

MUM PENALTY FOR STRIKING AGAINST THE

UNITED STATES?

il

TABLE OF CONTENTS

Pages

PUTIN cscs ccna - * S

Statutory and Constitutional Provisions Involved 2

Statement of the Case 000. sidevalniaeitibiinans 7

Argument:

A. Introduction... ‘ 9

B. The Changing Of The Burden Of Proof And The

Creation Of A New Presumption, After The Peti-

tioners’ Hearing, Violated The Administrative

Procedure Act And The Petitioners’ Right To

Due Process Of Law. 12

C. The Holding Of The Federal Circuit Court Of

Appeals That Mere Absence During A Strike Of

Jeneral Knowledge Will Sustain A Finding Of

Strike Participation Creates A New Standard

Of Law In Conflict With Previous Authority. .... 17

D. Failure Of The Agency, In Invoking The Crime

Provision, To Give The Petitioners A Full Seven

Days To Respond To The Notice Of Proposed

Removal Renders The Decision “Not In Accord-

anee With The Law” In Violation Of 5 U.S.C.

§ 7701(e) (2) (C) (1982). 19

E. The Promulgation Of Advisory Opinions By The

General Counsel’s Office Of The MSPB Vio-

lated 5 U.S.C. § 1205(g¢) (1982). 20

F. Removal Is Not The Mandatory Minimum Pen-

alty For Striking Against The United States. ..... 22

Conclusion 26

TABLE OF AUTHORITIES

CasEs:

Aero Mayflower Transit Company v. ICC, 699

F.2d 938 (7th Cir. 1983) 17

iil

TABLE OF AUTHORITIES—Continued

Pages

Bonet v. United States Postal Service, 661 F.2d

1071 (5th Cir. 1981) 19

Duckett and Yardley v. Tennessee Valley Author-

ity, 82 FMSR 7013 (February 29, 1982) 0000013, 14

Ford Motor Company v. FTC, 673 F.2d 1008 (9th

Cir. 1981), cert. den., — U.S. —, 103 S.Ct. 3474

| 15

Franklin v. Shields, 569 F.2d 784 (4th Cir. 1971),

cert. den., 435 U.S. 1003 (1978) .

Hatch v. Federal Energy Regulatory Commission,

aoe eae eee (ee. Orr. 1) LT. 16

Hill v. Federal Power Commission, 335 F.2d 355

(5th Cir. 1964) 16

Jones v. Tennessee Valley Authority, 82 FMSR

Joon (eeeeeney 00, ea) 13, 14

Miller v. Bond, 641 F.2d 997 (D.C. Cir. 1981) 0. 24

Miller ». Youakim, 440 U.S. 125 (1975) 24

NLRB v. Bell Aerospace olacali 416 U.S. 267

(1974) at 15

NLRB v. W sn dablansaanaed Company, 394 U.S. 759

(1969) . 15

Port Terminal Rail Association v. United States,

551 F.2d 1336 (5th Cir. 1977) 15

Precious Metal Associates v. Commodity Futures

Trading Commission, 620 F.2d 900 (1st Cir.

1980) 15

Rivera v. Patino, 524 F.Supp. 136 (N.D. Cal. 1981) .... 15

Shapansky v. Department of Transportation,

Docket No. DA075281F1130 (October 28, 1982)... =—-12

Shaw v. United States Postal Service, 697 F.2d

1078 (F. Cir. 1983) 20

es |

iv

TABLE OF AUTHORITIES—Continued

Pages

Stringer v. United States, 90 F.Supp. 375 (Ct. Cl.

ee spsinchipd ici lecenhipstciaisilicledldegitselaiahint 19, 20

Tennessee Valley Authority v. Batley, 495 F.

Supp. 711 (B.D. Tenn. 1980) ieclecatione 18

United Federation of Postal Clerks v. Blount, 325

F.Supp. 879 (D. D.C. 1971), aff’d. 404 U.S. 802

FIED secasintesininssesinstinisennrecssencebhencsinicndethdniulecshicaoaiesliaticaagieniniantnacih 13, 18

United Gas Pipeline Company v. Federal Energu

Regulatory Commission, 597 F.2d 581 (5th Cir.

1979), cert. den., 445 U.S. 916 (1980) 2... or

United States v. McCubbin, 81-2059, et seq. (10th

United States v. Moore, 427 F.2d 1020 (10th Cir.

United States v. PATCO, 524 F.Supp. 160 (D.

a ee eee 19, 24, 25

United States v. PATCO, 107 LRRM 3210, 3213

i a) Gare Br RE RTE c= RAAT re 24

United States v. PATCO, 488 F.2d 79 (2d Cir. 1970),

cert. den. 402 U.S. 915 (1971) ........... saat en AE oe ka RS Oo 24

United States v. PATCO, 653 F.2d 1134 (7th Cir.

1981), cert. den. 102 S.Ct. 639 (1980) nee «= 29

United States v. Robinson, 449 F.2d 925 (9th Cir.

4 SERINE aang Pes ean Sb per We Pad cdoe SPINS Ere | NCES Coe Or NT 24

OTHER AUTHORITIES:

5 U.S.C. 4 551 .... 5, 14

I ae eed 6, 14, 15

5 U.S.C. $554 (1982) 15

TABLE OF AUTHORITIES—Continued

Pages

D Cy 6 Be ccc ijsiciinciainiiiielandicekineiiiaaaaad 4, 11, 21, 22

Fae He III Michintcsccnesaikcetindegsiitaceantanadiaianae’ alee 3, 18, 22, 23, 24

5 U.S.C. 8 7701 . i iacihiibaatentenipaniibanceeidaticeilasadiaciaaaa

ee eg I cas aecendibddtveccettnscnticd sites iteataiiapeiapaiiiad idea mae

Be rc Oe ED daisies shscnincccivseniovaieiiatiieinmn eal Sri 2

Pet RGF 8 | | SRT Sone ET,

Civil Service Reform Act of 1978, Pub. L. No. 95-

ef 8. RR eee eS Rene 21

Congressional Research Service Memorandum,

Congressional Research Service, Library of

Congress, “The Federal Employee Strike Ban

and the PATCO Strike,” 41-45 (February 22, 1982). 25

Federal Personnel Bulletin No. 731-6 ......................... 2

Fifth Amendment, United States Constitution —... 2

H.R. Rep. No. 95-1403, 95th Cong. 2d Sess. 7 (1978)

reprinted in 1 House Committee on Post Office

and Civil Service, 96th Cong., Ist Sess., Legisla-

tive History of Civil Service Reform Act of

Pub. L. No. 84330, § 18 p-r, 69 Stat. 624 (1955),

reprented tn 1955 U.S. Code Cong. & Ad. News 704 ...... 23

Senate Report S. 2640, § 205, 95th Cong. 2d Sess.

reprinted in 2 House Committee on Post Office

and Civil Service, 96th Cong., Ist Sess., Legis-

lative History of Civil Service Reform Act of

1978, 1331 (Comm. Print. No. 96-2, 1979) 20

3 Sutherland Statutory Construction, § 59.03 0. 22

“Work Stoppages in Government, 1979”, Govern-

ment Employee Rel. Rep. (BNA) reference file

71:1011, 1014 Redaie 23

aa

_—

— |

In The

Supreme Court of the United States

October Term, 1983

--— — - ——— —-()— —— - --—

ROBERT L. CAMPBELL, et al,

Petitioners,

vs.

DEPARTMENT OF ‘TRANSPORTATION ;

FEDERAL AVIATION ADMINISTRATION,

Respondents.

— --—- -— -O- -

ON WRIT OF CERTIORARI TO THE

FEDERAL CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

i>

Vv

JURISDICTION

The United States Court of Appeals for the Federal

Circuit rendered its decision in the instant case on May

18, 1984. On June 7, 1984, the Petitioners’ motion for a

1

2

stay of mandate was granted by the United States Court

of Appeais for the Federal Circuit, said stay to expire

on July 9, 1984 if a petition for a writ of certiorari is not

filed with this Court. Jurisdiction is sought pursuant to 28

U.S.C. § 1254(1).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

This case involves portions of the following statutes

and regulations:

A. “No person shall ... be deprived of life, liberty

or property, without due process of law;...” Fifth Amend-

ment, United States Constitution.

B. $1918.

Whoever violates the provision of section 7311 of

title 5 that an individual may not accept or hold a position

in the Government of the United States or the government

of the District of Columbia if he—

(1) advocates the overthrow of our constitu-

tional form of government;

(2) isa member of an organization that he knows

advocates the overthrow of our constitional form of

government;

(3) participates in a strike, or asserts the right

to strike, against the Government of the United States

or the government of the District of Columbia; or

(4) is a member of an organization of employees

of the Government of the United States or of individ-

uals employed by the government of the District of

Columbia that he knows asserts the right to strike

against the Government of the United States or the

government of the District of Columbia;

shall be fined not more than $1,000 or imprisoned not more

than one year and a day or both. 18 U.S.C. § 1918.

C. $7311.

An individual may not accept or hold a position in the

Government of the United States or the government of the

District of Columbia if he—

(1) advocates the overthrow of our constitu-

tional form of government;

(2) isa member of an organization that he knows

advocates the overthrow of our constitutional form

of government;

(3) participates in a strike, or asserts the right

to strike, against the Government of the United States

or the government of the District of Columbia; or

(4) is a member of an organization of employees

of the Government of the United States or of individ-

uals employed by the government of the District of

Columbia that he knows asserts the right to strike

against the Government of the United States or the

government of the District of Columbia. 5 U.S.C.

§ 7311.

D. § 7513.

(2} Under regulations prescribed by the Office of

Personnel Management, an agency may take an action

covered by this subchapter against an employee only for

such cause as will promote the efficiency of the service.

(b) An employee against whom an action is pro-

posed is entitled to—

(1) at least 30 days’ advance written notice, un-

less there is reasonable cause to believe the employee

has committed a crime for which a sentence of im-

prisonment may be imposed, stating the specific rea-

sons for the proposed action;

(2) a reasonable time, but not less than 7 days,

to answer orally and in writing and te furnish affi-

davits and other documentary evidence in support of

the answer;

(3) be represented by an attorney or other rep-

resentative; and

(4) a written decision and the specific reasons

therefor at the earliest practicable date.

(ec) An ageney may provide, by regulation, for a

hearing which may be in lieu of or in addition to the oppor-

tunity to answer provided under subsection (b)(2) of this

section.

(d) An employee against whom an action is taken

under this section is entitled to appeal to the Merit Sys-

tems Protection Board under section 7701 of this title.

(e) Copies of the notice of proposed action, the

answer of the employee when written, a summary thereof

when made orally, the notice of decision and reasons

therefor, and any order effecting an action covered by this

subchaper, together with any supporting material, shall

be maintained by the agency and shall be furnished to the

Board upon its request and to the employee affected upon

the employee’s request. 5 U.S.C. § 7513.

EK. § 12085.

(a) The Merit System Protection Board shall—

* * *

(g) The Board shall have the authority to prescribe

such regulations as may be necessary for the performance

of its functions. The Board shall not issue advisory

opinions. All regulations of the Board shall be published

in the Federal Register. 5 U.S.C. § 1205.

F. $551.

For the purpose of this subchapter—

(1) “agency” means each authority of the Gov-

ernment of ihe United States, whether or not it is

within or subject to review by another agency, but

does not include—

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or posses-

sions of the United States;

(D) the government of the District of Columbia;

or except as to the requirements of section 552 of

this title—

(E) agencies composed of representatives of the

parties or of representatives of organiza-

tons of the parties to the disputes deter-

udined by them;

(F') courts martial and military commissions;

(G) military authority exercised in the field in

time of war or in occupied territory; or

(H) funetions conferred by sections 1738, 1739,

1743, and 1744 of title 12; chapter 2 of title

41; or sections 1622, 1884, 1891-1902, and

former section 1641(b)(2), of title 50, appen-

dix. 5 U.S.C, § 551.

a re

G. § 553.

(a) This section applies, according to the provisions

thereof, except to the extent that there is involved—

(1) a military or foreign affairs function of the

United States; or

(2) a matter relating to agency management or

personnel or to public property, loans,

grants, benefits, or contracts.

(b) General notice of proposed rule making shall be

published in the Federal Register, unless persons subject

thereto are named and either personally served or other-

wise have actual notice thereof in accordance with law.

The notice shall inelude—

(1) a statement of the time, place, and nature of

public rule making proceedings;

(2) reference to the legal authority under which

the rule is proposed; and

(3) either the terms or substance of the proposed

rule or a description of the subjects and is-

sues involved.

Except when notice or hearing is required by statute, this

subsection does not apply—

(A) to interpretative rules, general statements of

policy, or rules of agency organization, pro-

cedure, or practice; or

(B) when the agency for good cause finds (and

incorporates the finding and a brief state-

ment of reasons therefor in the rules issued)

that notice and public procedure thereon are

impracticable, unnecessary, or contrary to

the public interest.

~]

(c) After notice required by this section, the agency

shall give interested persons an opportunity to participate

in the rule making through submission of written data,

views, or arguments with or without opportunity for oral

presentation. After consideration of the relevant matter

presented, the agency shall incorporate in the rules

adopted a concise general statement of their basis and

purpose. When rules «-e¢ required by statute to be made

on the record after opportunity for an agency hearing,

sections 556 and 557 of this title apply instead of this sub-

secticn.

(d) The required publication or service of a sub-

stantive rule shall be made not less than 30 days before

its effective date, except—

(1) a substantive rule which grants or recognizes

an exemption or relieves a restriction;

(2) interpretative rules and statements of pol-

icy; or

(3) as otherwise provided by the agency for good

cause found and published with the rule.

(e) Each agency shall give in interested person the

right to petition for the issuance, amendment, or repeal

of arule. 5 U.S.C. § 553.

ra’

Vv

STATEMENT OF THE CASE

The Petitioners were employed by the Federal Avia-

tion Administration (hereinafter referred to as “agency”)

as air traffic control specialists. In August of 1981, a

nationwide strike of air traffic controllers was called by

the Professional Air Traffic Controllers Organization

(PATCO).

At approximately 11:00 a.m. on August 3, 1981, Pres-

ident Reagan went on national television and radio and

stated that all controllers who did not return to work with-

in forty-eight hours had forfeited their jobs and would be

terminated.

Each petitioner who did not return to work at a desig-

nated time received a notice of proposed removal for al-

legedly participating in a strike and for unauthorized ab-

sence (AWOL). Each notice of proposed removal invoked

the so-called crime provision reducing the response period

to “within seven days.” Each petitioner requested an ex-

tension of this seven-day period and the scheduling of oral

responses. This request ior extension was denied in each

of the Petitioners’ cases and an oral response was never

scheduled.

Subsequent thereto, each Petitioner filed a written re-

sponse to the proposed removal and each was mailed a no-

tice of termination. Each Petitioner timely filed a notice

of appeal to the Merit Systems Protection Board (herein-

after referred to as “MSPB”) and a hearing was held

before a hearing officer (hereinafter referred to as “pre-

siding official”), on May 19, 21, 24, and 25 of 1982. On Oc-

tober 7, 1982, a decision was rendered by Presiding Offi-

cial Gail E. Skaggs in which the removal of each petitioner

was affirmed.

A Petition for Review was filed with the MSPB and on

April 25, 1983, a decision was issued by the Board affirm-

ing the terminations. The Petitioners then timely filed a

Petition for Review in the United States Court of Appeals

for the Federal Circuit.

On February 24, 1983, the Federal Circuit Court of

Appeals issued an Order establishing seven “lead cases”

which would be used as vehicles to decide all of the com-

mon issues of law affecting the cases of approximately

twelve thousand (12,000) air traffic controllers. The

ease of Robert L. Campbell, et al. v. Department of Trans-

portation, et al. was designated as one of these lead cases.

Every other appeal pending in the Federal Circuit Court

of Appeals involving air traffic controllers was to be held

in abeyance pending a decision by the Federal Circuit

Court of Appeals. On May 18, 1984, the Federal Circuit

Court of Appeals indicated that it would continue to hold

all other air traffie controller cases in abeyance pending

final resolution of these issues by this Court.

°

ARGUMENT

A. Introduction

The “air traffic controller” cases represent the first

time that any federal court was faced with a large-scale

strike by federal employees. The decisions emanating

from the Federal Circuit Court of Appeals in the consoli-

dated “lead cases”, in a number of critical ways, create

new bodies of law or meaningfully contradict or overrule

decisions by this Court or other circuit courts of appeals.

The body of law created by the Federal Circuit Court of

Appeals will substantially impact the rights, duties, and

obligations of federal employees for years to come. The

10

areas of first impression, the conflicts with prior decisions

by this Court and other cireuit courts of appeals, and the

sheer magnitude and importance of the instant case ren-

ders it worthy of certiorari to the United States Supreme

Court.

The Petitioners in the “lead cases”, including the mem-

bers of Campbell, et al., raised a number of important com-

mon issues. These ineluded: the agency committed error

in denying controllers a full seven days to respond to the

notice of proposed removal; the MSPB created a new bur-

den of proof, one which shifted the burden of persuasion

to the controllers; the controllers were not on strike or

AWOL after the presidential deadline of 11:00 a.m. on

August 5, 1981 due to confusion over the appropriate dead-

line for reporting to work; removal is not the mandatory

minimum penalty for striking against the United States;

the controllers’ terminations were tainted by command in-

fluence in that high government officials, as opposed to

those officials designated by law to do so, made the deci-

sion to terminate the controllers; the Petitioners received

disparate treatment as compared to those controllers who

returned to work prior to their individual deadlines; and

the controllers were illegally suspended pending a final de-

cision in their individual cases. A number of these issues

will be specifically addressed in the context of this Peti-

tion for Writ of Certiorari and the Petitioners, in the in-

stant case, seek review of all these issues.

Along with the common issues discussed above, the

Petitioners in Campbell, et al. raised, and in fact stressed,

three additional arguments:

(a) The changing of the burden of proof and the cre-

ation of a new presumption after the Petitioners’ hearing

violated the Petitioners’ right to due process of law.

11

(b) The changing of the burden of proof and the ere-

ation of a new presumption, after the Petitioners’ hearing

and without advance notice or opportunity for comment,

violated the Administrative Procedure Act.

(c) The promulgation of advisory opinions by the

MSPB violated 5 U.S.C. §1205(g), as well as the Petition-

ers’ right te have a meaningful review of the issues raised

in the administrative process.

Despite the fact that counsel for the Petitioners in

Campbell, et al. was specifically directed by the court to

address these three issues in his oral argument, the Fed-

eral Cireuit Court of Appeals never directly addressed the

first two issues enumeraced above. In fact, the Admin-

istrative Procedure Act is not mentioned in any of the de-

cisions in the “lead cases”.

With respect to the advisory opinions issue, the Fed-

eral Cireuit Court of Appeals side-stepped the issue by

making a distinction between the issuance of advisory opin-

ions to the public, and the circulation of advisory opinions

to presiding officials within the MSPB. Furthermore, the

Federal Circuit Court of Appeals indicated in its decision

that there is no evidence that the presiding officials ab-

dicated their responsibility or their independent discre-

tion. The Court ignored the fact that the Petitioners

had moved, during the processing of their appeal for a

partial remand for the purpose of conducting an eviden-

tiary hearing into the breadth and effect of the advisory

opinions, (see Appendix, pp. 66-76).

In addition to the creation of new law and the conflicts

with other courts of appeals, the Federal Circuit Court

of Appeals’ failure to fully address and adjudicate im-

i il

12

portant issues raised by the Petitioners militates towards

review by the United States Supreme Court.

B. The Changing Of The Burden Of Proof And The

Creation Of A New Presumption, After The Petitioners’

Hearing, Violated The Administrative Procedure Act And

The Petitioners’ Right To Due Process Of Law.

5 C.F.R. $1201.56 (1979), which is the regulatory codi-

fication of 5 U.S.C. §7701, deals with the burden of proof

to be applied in hearings before the Merit Systems Pro-

tection Board. These sections clearly place the burden

of proof on the agency which has taken the adverse action

to support same by a preponderance of the evidence. The

burden of proof is only placed on a particular appellant

with respect to affirmative defenses, (5 C.F.R. §1201.56(b)

1979) and issues of jurisdiction and timeliness of filing,

(5 C.F.R. $1201.56(2)).

In the course of adjudicating air traffie controller

eases, the MSPB created new rules and standards regard-

ing the burden of proof it would employ in adjudicating

specific cases. This new rule or standard, which was first

set forth in the case of Shapansky v. Department of Trans-

portation, Docket No. DA075281F1130 (October 28, 1982),

and was applied to and used as a basis for the decision in

the petitioners’ case. This occurred despite the fact that the

decision by the MSPB in Shapansky occurred five months

after the petitioners’ hearing before the presiding official.

Therefore, the petitioners had no advance notice or warn-

ing that a new burden of proof would be applied in adjudi-

eating their case before the MSPB. The net effect is that

the petitioners never had an opportunity to conform their

defense to this new burden of proof. This action taken

13

by the Board not only violates the Admin’ strative Proced-

ure Act, it viclates the petitioners’ right to the due process

of law.

The Shapansky case was one of the first controller

eases to be decided by the Merit Systems Protection Board.

In footnote 2 of that decision, the Board states the follow-

ing:

In eases, such as this one, in which the existence

of a strike is a matter of general knowledge, the

agency may establish a prima facie case of an em-

ployee’s voluntary participation therein by present-

ing evidence of his wnauthorized absence from duty

during the strike. The burden of persuasion would

then shift to the employee to rebut the agency’s case

by presenting evidence to show that he had no knowl-

edge of the existence of the strike or to demonstrate

that his absence was due to some factor other than

intentional participation in the strike. The agency,

of course, must ultimately establish appellant’s par-

ticipation by a preponderance of the evidence pur-

suant to 5 U.S.C. §7701(e)(1)(B).

Id., at 6.

The decision in Shapansky was a radical departure from

previous case law regarding what must be shown to prove

strike participation. See United Federation of Postal

Clerks v. Blount, 325 F.Supp. 879 (D. D.C. 1971), aff'd.

404 U.S. 802 (1971). Im fact, despite its best efforts to

do so, the MSPB was unable to harmonize the creation of

this new burden of proof or new presumption with two

cases it had previously decided: Jones v. Tennessee Valley

Authority, 82 FMSR 7008 (February 19, 1982); Duckett

and Yardley v. Tennessee Valley Authority, 82 FMSR

(013 (February 29, 1982).

i

14

In Jones and Duckett and Yardley, which arose out

of the same job action, the MSPB held that, based upon

the specific facts presented, the agency made a prima facie |

ease by showing absence from duty and presence among |

picketers. In the first instance, the MSPB never asserted

in these two cases that this standard would be applied to

all situations involving strikers. More importantly, it does

not create a standard or presumption that mere unauthor-

ized absence from duty during a strike creates a prima

facie ease of voluntary participation therein with the bur-

den of persuasion then shifting to the employee. There-

fore, the holding by the Board in Shapansky, can only

be described as the creation of a new standard or rule

regarding burdens of proof and persuasion. In creating

this new rule or standard, the Board violated the Admin-

istrative Procedure Act in various pertinent parts. Addi-

tionally, by creating a new rule and standard to govern

the instant case after the hearing had taken place, the peti-

tioners’ right to due process of law were violated.

Section 551(4) of the Administrative Procedure Act,

5 U.S.C. §551(4) (1982) defines a rule as “an agency state-

ment of general or particular applicability and future

effect designed to implement ... law or policy... ”. Un-

der 5 U.S.C. §553(b), (e), (d) (1982), an agency must give

30 days notice of a proposed substantive rule and must

give interested parties an opportunity to submit written

responses. Furthermore,

“Tt is fundamental that administrative regulations are

void unless they are promulgated in strict compli-

ance with the Administrative Procedure Act, 5 U.S.C.

§553.”

15

Rivera v. Patino, 524 F.Supp. 136, 147 (N.D. Cal. 1981).

5 U.S.C. §551 (1982) defines what administrative bodies

come within the definition of an “agency” and clearly the

MSPB is included within that definition. Finally, al-

though the MSPB may be exempted from the dictates

of Section 554 of the A.P.A., 5 U.S.C. §554 (1982), it does

come within and is governed by 5 U.S.C. $553 (1982).

An administrative agency may announce new prin-

ciples either in an adjudicative proceeding or through

formal rule-making pursuant to 5 U.S.C. §553 (1982),

NLRB v. Bell Aerospace Company, 416 U.S. 267, 294

(1974). This Court, however, has indicated a general pol-

icy that rule making is preferred to adjudication as a

method of announcing new principles and that rule mak-

ing provisions “may not be avoided by the process of mak-

ing rules in the course of adjudicatory proceedings”.

NLRB v. Wyman-Gordon Company, 394 U.S. 759, 764

(1969).

Although an administrative agency has the discretion

to choose between rule-making and adjudication in the

announcing of new principles of law, there are a number

of circumstances or situations where courts have required

rule-making rather than adjudication. Courts have re-

peatedly frowned on situations where an agency is chang-

ing standards of law and then applying them retroactively

in an adjudicatory proceeding. Ford Motor Company v.

FTC, 673 F.2d 1008 (9th Cir. 1981) cert. den., — U.S. —,

103 S.Ct. 3474 (1981); Unted Gas Pipeine Company v.

Federal Energy Regulatory Commission, 597 F.2d 581

(5th Cir. 1979), cert. den., 445 U.S. 916 (1980); Port Ter-

minal Rail Association v. United States, 551 F.2d 1336

(5th Cir. 1977); Precious Metal Associates v. Commodity

16

Futures Trading Commission, 620 F.2d 900 (1st Cir. 1980) ;

Frankl'n v. Shields, 569 F.2d 784 (4th Cir. 1971), cert.

den., 435 U.S. 1003 (1978).

In Hatch v. Federa' Energy Regulatory Commission,

654 F.2d 825 (D.C. Cir. 1981), the D.C. Cireuit recognized

that “the Administrative Procedure Act required that a

person involved in an agency adjudicatory hearing ‘shall

be timely informed of ... [the] law asserted’.” Zd., at

835. The Court went on to state the proposition that an

agency may not change a standard of law and then apply

it retroactively without first giving notice to the parties

and affording them an opportunity to introduce evidence

which is based upon this new standard. /d., at 835. To

act in a contrary manner would violate the Administrative

Procedure Act, as well as abridging an individual’s right

to due process of law.

“ when, as here, the change is a qualitative one in

the nature of the burden of proof so that additional

facts of a different kind may now be relevant for the

first time, litigants must have a meaningful oppor-

tunity to submit conforming proof.”

Id., at 835.

In Hill v. Federal Power Commission, 335 F.2d 355

(5th Cir. 1964) the Fifth Circuit Court of Appeals stated

that an agency has a duty “at some stage prior to the close

of proof to declare what it considers the relevant stand-

ards to be.” Jd., at 358. To act otherwise, “deprives pro-

ducers (petitioners) of a fair and adequate hearing be-

cause the standards to be applied were neither evolved

nor announced until the decision holding them unsatis-

fied.” Jd., at 362 (parenthesis added).

17

In Aero Mayflower Transit Company v. ICC, 699

F.2d 938 (7th Cir. 1983), the Seventh Cireuit took a sim-

ilar view by stating:

“Courts have commonly held that when an agency

wants to change a controlling standard and apply it

in an adjudicatory setting, parties before the agency

must be given notice and opportunity to introduce

evidence bearing on the new standard.”

Id., at 942.

Although this issue was presented to the Federal Cir-

cuit Court of Appeals in the Campbell case, both in briefs

and oral argument, the only response by the Federal Cir-

cuit Court appears at Pages 13-14 of the Shapansky deci-

sion (Appendix, pp. 27-28). That discussion focuses only

on whether earlier case law required active involvement

in a strike in order to establish strike participation. (See

Argument Section C in which the Petitioners argue that

the decision of the Federal Cireuit does change existing

law.) This discussion ignores the fact that a new eviden-

Uiary presumption was created after the completion of the

Petitioners’ hearing.

Review by this Court is necessary in the instant case

to address this issue and give clear direction to courts

of appeals regarding whether an agency can create and

apply new standards of law after the completion of an

individual’s adjudicatory hearing.

C. The Holding Of The Federal Circuit Court Of Ap-

peals That Mere Absence During A Strike Of General

Knowledge Will Sustain A Finding Of Strike Participa-

tion Creates A New Standard Of Law In Conflict With

Previous Authority.

18

In its decision in the Schapansky case, the Federal

Circuit Court of Appeals adopted the holding of the

MSPB that mere absence during a strike of general

knowledge will sustain a finding of strike participation.

(See discussion in Argument Section B.) This decision

is in direct conflict with a body of law that has evolved

over a number of years.

In United Federation of Postal Clerks v. Blount, 325

F.Supp. 879 (D.D.C. 1971), aff'd. 44 US 802, the District

Court for the District of Columbia held that only an

actual refusal by an employee, in concert with others,

to provide services to one’s employer is forbidden by

5 U.S.C. §$7311(3) and penalized by 18 U.S.C. §1918

(1982). Prior to the Federal Cireuit Court of Appeals’

decision in the instant case, in order for the agency to

sustain its burden of proving that an employee was strik-

ing, specific evidence was required that the employee in-

tentionally withheld his services in concert with others.

Tennessee Valley Author.ty v. Bailey, 495 F.Supp. 711

(ED Tenn. 1980).

In United States v. McCubbin, 81-2059, et. seq. (10th

Cir. 1983), the Tenth Circuit Court of Appeals, after re-

viewing evidence nearly identical to that adduced in the

instant case, held that the government ‘‘must show con-

certed, not just parallel action... .” Id., at —.

The decision by the Federal Cireuit Court of Appeals

upholding the presumption created in the Schapansky

case eliminates the essential elements of roof required

by Blount, Bailey and McCubbim and impermissibly shifts

19

the burden of production of evidence to the employee.

Cf. Bonet v. United States Postal Service, 661 F.2d 107),

1078 (Sth Cir. 1981). See also, United States v. PATCO,

924 F.Supp. 160 (D. D.C. 1981); Young v. Hampton, 568

F.2d 1253 (7th Cir. 1977).

This conflict between the Federal Cireuit Court of

Appeals’ endorsement of the concept that mere absence

during a strike of general knowledge is proof of strike

participation and prior cases which require an actual

refusal by a particular employee in concert with others

creates a great deal of coniusion and leaves this area

of law unsettled and, therefore, makes this case appro-

priate for review by this Court.

D. Failure Of The Agency, In Invoking The Crime

Provision, To Give The Petitioners A Full Seven Days To

Respond To The Notice Of Proposed Removal Renders

The Decision “Not In Accordance With The Law” In Vio-

lation Of 5 U.S.C. § 7701(c) (2) (C) (1982).

In notices of proposed removal issued to the Petition-

ers, each individual was informed that he must respond

‘‘within seven calendar days after you receive this let-

ter.” The term ‘‘within seven days’’ must be interpreted

to mean less than seven days, which constitutes a viola-

tion of 5 U.S.C. §7513(b)(2) (1982). The Petitioners

argued before the Federal Circuit Court of Appeals that

that failure to give a full seven days renders the decision

by the agency ‘‘not in accordance with the law” in viola-

tion of 5 U.S.C. §$7701(¢)(2)(C) (1982). See Stringer v.

United States, 90 F.Supp. 375 (Ct. Cl. 1950). The Re-

spondents argued that any defect in affording the full

notice period must be evaluated using a ‘harmful error’’

analysis, pursuant to 5 U.S.C. §7701\°)(2)(A) (1982).

20

See Shaw v. United States Postal Service, 697 F.2d 1078

(F. Cir. 1983). The legislative history regarding the

relative applicability of the ‘‘harmful error’’ subsection

of 5 U.S.C. §$7701(e) (2), 5 U.S.C. §$7701(¢)(2)(A) and the

‘‘not in accordance with law” subsection, 5 U.S.C.

§7701(e)(2)(C) is admittedly unclear.

In arguments before the Federal Circuit, the respond-

ents relied on the Senate Report S. 2640, $205, 95th

Cong. 2d Sess., reprinted in 2 House Committee on Post

Otfiee and Civil Service, 96th Cong., Ist Sess., Legisla-

tive History of Civil Service Reform Act of 1978, 1331

(Comm. Print. No. 96-2, 1979) (hereinafter referred to as

“Leg Hist’, while the petitioners cited passages from

the House Report, H.R. Rep. No. 95-1403 95th Cong. 2d

Sess. 7 (1978), reprinted in 1 Leg Hist 636, 644.

In Footnote 3 of its decision in the Adams case (Ap-

pendix, pp. 40-41), the Federal Cireuit Court of Appeals

adopts the “harmful error” approach, without even re-

ferring to or discussing the Stringer decision. In addition

to resolving the cases of these petitioners, guidance is

needed from this Court regarding the applicable standard

to be applied in determining whether an error on the part

of a federal agency requires reversal of an agency deci-

sion.

E. The Promulgation Of Advisory Opinions By The

General Counsel’s Office Of The MSPB Violated 5 U.S.C.

§ 1205(g) (1982).

After a decision was rendered in the instant case by

the MSPB, the Petitioners discovered through the Free-

dom of Information Act that advisory opinions had been

issued by the General Counsel’s office and had been cir-

culated to presiding officials. After making this discov-

9]

ery, the Petitioners filed a Motion for Partial Remand for

the purpose of conducting a hearing in order to determine

the effeet of the advisory opinions on the decisions issued

by presiding officials. (See Appendix, pp. 66-70.) This

motion was denied by the Federal Cireuit Court of Ap-

peals.

The Petitioners argued that the creation, circulation

and ineorporation of advisory opinions in the instant ease

violated 5 U.S.C. § 1205(g) (1982), as well as the Peti-

tioners’ due process right to have a meaningful review of

the issues raised in the administrative process. The Peti-

tioners cited passages of the decision in their ease which

were lifted verbatim from the advisory opinions. (See

Memorandum in Support of Motion for Partial Remand,

Appendix, pp. 70-77.)

In its decision in the Campbell case, the Federal Cir-

euit Court of Appeals stated, “The thrust of 5 U.S.C.

§ 1205(g) appears to be to prohibit the boards from is-

suing advisory opinions to the public, a prehibition com-

parable to the prohibition against federal courts issuing

advisory opinions, and in contrast to other agencies which

are authorized to issue advisory opinions as a guide to

future conduct.” (Appendix, p. 9.) <A decision of the

Federal Cireuit on this point is a matter of first impres-

sion which, if allowed to stand, would seriously undermine

the purposes behind the promulgation of 5 U.S.C.

§ 1205(g) (1982).

The Civil Service Reform Act of 1978, Pub. L. No. 95-

454, 92 Stat. (1978) established the MSPB to take over the

functions of the Civil Service Commission. This change

was motivated in large part as a reaction to the perceived

defects in the latter agency (see Memorandum in Support

yy

eS

of Motion for Partial Remand, Appendix, pp. 70-77). See-

tion 1205(¢) of the Civil Service Reform Act of 1978, 5

U.S.C. 1205(g} (1982) was promulgated to protect the

integrity of this new adjudicatory process. The interpre-

tation given to this statutory enactment by the Federal

Circuit would significantly undercut its effectiveness, and

therefore review by this Court of the Federal Circuit’s

hmiting interpretation is necessary.

F. Removal Is Not The Mandatory Minimum Pen-

alty For Striking Against The United States.

In rendering its decisions in the lead cases, the MSPB

held that removal is the mandatory minimum penalty for

striking against the United States. The Petitioners raised

this issue before the Federal Cireuit, which chose not to

address the issue head-on. (See Schapansky decision, pp.

18-19; Appendix, pp. 31-32.)

The statute in question, 5 U.S.C. 4 7311 (1982), reads

in pertinent part:

An individual may not aecept or hold a position in

the government of the United States or the govern-

ment of the District of Columbia if he... (3) partici-

pates in a strike, or asserts the right to strike, against

the government of the United States or the govern-

ment of the District of Columbia... .

Clearly, 5 U.S.C. § 7311 (1982) is a penal statute which

must be strictly construed against the United States gov-

ernment. 3 Sutherland Statutory Construction, § 59.03.

If one is to look at the plain meaning of the statute,

it indicates that removal is not mandatory. Section 7311

conspicuously uses the word “may” rather than the more

mandatory term “shall”. The use of the term “may” dis-

23

tinguishes § 7311 from other statutory enactments which

are mandatory in their approach.

The previous enactment of § 7311 read as follows:

[nJo person shall accept or hold office or employ-

ment 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

im 1955 U.S. Code Cong. & Ad. News 704.

The current phraseology emanates from Pub. L. 89-554,

80 Stat. 378, which was enacted in 1966. Presumably,

Congress had an expressed purpose in making this change.

It stands to reason that this change from the mandatory

language to the discretionary language was intended to

give the government more flexibility in dealing with em-

ployees who have engaged in strike or strike-related activ-

ities. Perhaps, this was the codification or acceptance of

the reality that many federal employees have engaged in

strike or strike-related activities and not been terminated.

In fact, statistics show that between the years of 1962 and

1979, there were 22 work stoppages involving a total of

more than 200,000 employees. “Work Stoppages in Gov-

ernment, 1979”, Government Employee Rel. Rep. (BNA)

reference file 71:1011, 1014. This study by the Bureau of

Labor Statistics indicates that the government has expli-

citly, or at least implicitly, recognized and accepted the

fact that a penalty Jess than removal may be applied in

eases where federal employees engage in work stoppages

or strikes.

This recognition on the part of the government is also

reflected in the fact that injunctions obtained by federal!

agencies in the face of strike activity have regularly in-

24

cluded “back to work” clauses. For example, see 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); Un ted States v. PATCO, 107 LRRM 3210, 3213 (D.

D.C. 1981). If § 7311 was to be interpreted in the manner

asserted by the Board, then these back to work clauses

would be illegal. Furthermore, if the government serious-

ly believed that § 7311 was an absoluate bar to federal

employment, it would not have taken the position that air

traffic controllers, who had been removed for striking,

could apply for employment in federal agencies other than

the FAA. See Federal Personnel Bulletin No. 731-6. The

longstanding interpretation of agencies within the execu-

tive branch, that striking 2mployees need not be termi-

nated, is entitled to legal recognition. See Miller v. Youa-

kim, 440 U.S. 125, (1978).

In United States v. PATCO, 438 F.2d 79 (2nd Cir.

1970), cert. den., 402 U.S. 915 (1971), a case which was

litigated in the context of the 1970 sick-out/strike of air

traffic controllers, the Second Circuit Court of Appeals

stated the following:

Although [7311] appears to speak in absolute terms

... there is a substantial question whether this statute

must be read in a manner which would require the

government to dismiss a!l controllers and thereby

end air travel until replacements could be trained.

Id. at 82 n.3.

In the ease of Miller v. Bond, 641 F.2d 997 (D.C. Cir.

1981), the D.C. Cireuit Court of Appeals implicitly agreed

that participation in a strike could be punished less than

removal. In that case, the Court stated:

Though participation in a strike can be grounds for

termination of a federal employee, by March 31, 1970,

i amma aati

25

the FAA had decided that suspension would be a

more appropriate punishment for those who took

part in the 1970 sick-out.

Id. at 1000. See also United States v. PATCO, 653 F.2d

1154 (7th Cir. 1981), cert. den., 102 S.Ct. 639 (1980).

Finally, in a recent Congressional Research Service

Memorandum, Congressional Research Service, Library

of Congress, ‘‘The Federal Employee Strike Ban and the

Patco Strike,” 41-45 (February 22, 1982), the following

conclusion is stated:

It does not appear that the underlying purpose of

the anti-strike laws, to prevent the interruption of

a central government service, would be furthered by

construing this statute in such an inflexible manner.

Id. at 44-45.

The MSPB has the final administrative word on the

rights, duties and obligations of federal employees. By

implicitly affirming the decision of the MSPB on this

issue, the Federal Circuit has established removal as

the mandatory minimum penalty for strike activities

against the United States which stands in conflict with

the authority cited above and which therefore necessi-

tates review by this Court.

°

CONCLUSION

Based upon the statements and facts discussed here-

in, the Petitioners respectfully request that their Petition

for Writ of Certiorari be granted.

Respectfully submitted,

By: /s/ Kenneth H. Stern

1763 Franklin Street

Denver, Colorado 80218

(303) 861-8580

Attorney for Petitioners