Appendix — Campbell v. Department of Transportation

Supreme Court brief1984

Ask Donna

What actually matters in this document.

Text

a I Office -

84-78 4 PILED

JUL 9 1904

No. ...

ALEXANDER L. STEVAS.

+— SEERK

In The

Supreme Court of the United States

October Term, 1983

ff.

ROBERT L. CAMPBELL, et al.,

Petitioners,

V8.

DEPARTMENT OF TRANSPORTATION;

FEDERAL AVIATION ADMINISTRATION,

Respondents.

ray

ON WRIT OF CERTIORARI TO THE

FEDERAL CIRCUIT COURT OF APPEALS

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

raY

KENNETH H. STERN

1763 Franklin Street

Denver, CO 80218

Telephone: (303) 861-8580

Attorney for Petitioner

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

TABLE OF CONTENTS

Page

Decision of Federal Cireuit Court of Appeals in

Campbell, et al. v. Department of Transportation,

Decision of Federal Cireuit Court of Appeals in

Schapansky v. Department of Transportation, FAA

Decision of Federal Circuit Court of Appeals in

Adams, et al. v. Department of Transportation,

FAA; Baracco v. Department of Transportation,

Fe cen eticahne nice nenseeataheiaddemdgeninlatientnnidaaiapeine

Decision of Federal Cireuit Court of Appeals in

Dorrance v. Department of Transportation, FAA ...

Motion for Partial Remand, Campbell, et al. v. De-

partment of Transportation, FAA ....................

Memorandum in Support of Motion for Partial Re-

mand, Campbell, et al. v. Department of Transpor-

tation, FAA .........

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL COURT

Appeal No. 83-1173

ROBERT L. CAMPBELL, ET AL.,*

Petitioners,

DEPARTMENT OF TRANSPORTATION, FAA,

Respondent.

DECIDED: May 18, 1984

Before MARKEY Chief Judge, FRIEDMAN, RICH,

SMITH, and NIES, Circuit Judges.

NIES, Circuit Judge.

This appeal is from a, decision of the Merit System

Protection Board (board) sustaining the removal of Rob-

ert L. Campbell and others by the Federal Aviation Ad-

ministration (agency) from their positions as air traffic

control specialists, Denver Air Route Traffie Control Cen-

ter (DARCC), Longmont, Colorado. The grounds for

removal were striking against the United States and ab-

sence without leave. We affirm.

Background

The general facts coneerning the background of the

strike called by the Professional Air Traffic Controllers

Organization (PATCO) and the action taken by President

8 The names of the petitioners in this appeal are listed in

the appendix.

Reagan are set forth in Schapansky v. Department of

Transportation, FAA, No. 83-663 (Fed. Cir. May 18, 1984),

and are incorporated herein by reference. Other facts

pertinent to the issues considered herein are set out below.

None of the petitioners of this appeal, except Russell

S. Root, reported for duty after August 3, 1981. Between

August 7 and 19, the Chief of the Denver Air Traffic

Control Center, Ralph Kiss, sent a notice of proposed re-

moval to each petitioner after determining that the per-

son had missed his/her deadline shift.

The removal notices each contained the following

statement: “[YJou may reply to this notice personally,

in writing, or both . .. within 7 calendar days after you

receive this letter.” None of the petitioners made a reply

affirming or denying the charges within the seven day

period. Each, however, by letter, requested certain ma-

terials be sent; requested an extension of time within

which to file a reply; and designated Michael Curtis of

PATCO, Local 501, as his/her representative.

Kiss responded promptly in writing to each, denying

the request for an extension and advising that “your re-

sponse, if any, must be made in accordance with the letter

of proposed removal.”

On August 17, Kiss contacted Curtis, the designated

representative, and notified him that oral responses could

be scheduled by having individual controllers call the

Center. No oral reply time was requested by any peti-

tioner or Curtis after that call.

Petitioners were subsequently removed from their po-

sitions by the agency. Petitioners appealed to the Denver

Regional Office of the MSPB, where their cases were con-

solidated. After a 5-day hearing, the presiding official

issued a decision sustaining the removals.' Petitioners

filed a joint petition for review with the full board, alleg-

ing numerous errors committed by the agency and the

presiding official. The board rejected petitioners’ argu-

ments and affirmed the decision of the presiding official.

Issues

Petitioners here put forth positions which are ad-

dressed and rejected in other related cases decided today,

including:

1. The agency committed error in invoking the crime

provision to reduce the notice period to seven

days. See Schapansky, slip op. at 19-20.

2. Petitioners were denied a full seven days to

respond to the notice of proposed removal. See

Adams v. Department of Transportation, FAA,

No. 83-1155, slip op. at n.3 (Fed. Cir. May 18,

1984).

3. The MSPB improperly shifted the burden of

proof to petitioners to prove that they were non-

strikers. See Schapansky, slip op. at 9-11.

4. Petitioners were not on strike or AWOL after

the presidential deadline of 11:00 a.m. (E.D.T.)

1 All petitioners were also held to be AWOL. With re-

spect to petitioner Root, the presiding official found that, be-

cause he had notified the agency that he was ready, willing,

and able to return to work on August 8, his non-duty, non-pay

status after that date constituted an improper suspension. Ac-

cordingly, the presiding official ordered the agency to amend

its records and to place Root in a duty and pay status from

August 8 until September 2, the effective date of his removal.

The full board agreed that Root had been illegally suspended

during this period.

on August 5, 1981, because confusion over the

deadline shift rule caused belief that they could

not return to work. See Adams, slip op. at 4-7.

5. Petitioners received disparate treatment as com-

pared to controllers who returned to work prior

to their deadline shift. See Schapansky, slip op.

at 17.

6. The agency deprived petitioners of the oppor-

tunity to decide, up to the last minute, whether

they would return to work by failing to inform

petitioners of their individual deadlines. See

Adams, slip op. at 6-7.

7. Petitioners’ terminations were tainted by com-

mand influence, in that terminations were con-

trolled by decisions of high Government officials,

including the President, who usurped responsi-

bilities specifically delegated to the agency. See

Schapansky, slip op. at 20-23; DiMasso v. Depart-

ment of Transportation, FAA, No. 83-1158, slip

op. at 6 (Fed. Cir. May 18, 1984).

8. Petitioners were illegally constructively suspend-

ed. See Adams, slip op. at 9-11.

9. Removal is not the mandatory minimum penalty

for striking against the United States. See Scha-

pansky, slip op. at 18-19.

Petitioners also raise the following issues which we

address in this opinion:

1. Whether the agency committed error in not

scheduling times for oral replies.

2. Whether the MSPB decision was tainted by im-

proper ex parte communications and advisory

epinions.

In addition, several petitioners raise issues based

on the speciai circumstances of their individual situations,

which we also treat below.

Scheduling of Oral Reply Times

Petitioners assert procedural error by the agency in

failing to schedule orai reply times. Petitioners contend-

ed that it was incumbent on the agency to set a reply time

for each petitioner in view of their requests that a spe-

cific time be set. As proof of such specific requests, pe-

titioners point to a standard request included in the re-

quests for extension of time: “Please inform me specif-

ically of the time and place such a personal presentation

may be made and the date on which my written response

is due.”

Petitioners argue that since the agency had the names

and addresses of all controllers, “it would have been a

simple matter to send each of [the striking controllers] a

letter scheduling a time for an oral response.” Petitioners

claim that the telephone call on August 17 from Kiss

to Curtis indicating that it was each controller’s respons-

ibility to schedule oral presentations “was merely an at-

tempt to correct the previous error that had already taken

place, to-wit: the failure to schedule ora! response as

requested.”

As the MSPB held, while the statute and regulations

clear provide for a right to make an oral response to

agency charges, they do not require the agency to sched-

ule replies sua sponte. Rather, it is incumbent on an

employee to take the initiative in scheduling the time to

exercise that right.

Further, the above-quoted request for scheduling re-

ply times, on which petitioners rely as an assertion of

such right, is taken out of context. The opportunity for

oral reply actually requested by the letter was no earlier

than “20 days from the receipt of [requested] materials.”

An even later time was requested for written reply. No

request was made for the agency to receive a petitioner’s

oral reply within the required seven day period set forth

in the notice. Further, as held in Dorrance v. Department

of Transportation, FAA, No. 83-1175, slip op. at 6-7 (Fed.

Cir. May 18, 1984), there was no obligation on the agen-

ey to extend the time for repiy under the circumstances.

It appears that petitioners turned the scheduling of

oral replies into a “cat-and-mouse” game, defeating the

purposes intended by the statute in granting such right.

The evidence of record indicates that attempts by Kiss

to contact petitioners directly by telephone were fruit-

less. He was unable to reach petitioners’ representative,

Curtis, at his office and pursued him at home to raise

the matter of oral replies. One person to whom he spoke

directly refused to make an oral reply “on advice of

counsel.” We see no bad faith on the part of the agency

in these efforts. On the other hand, Curtis had ample

opportunity to request reply times within the seven day

period and chose not to do so.

Finally, petitioners appear to raise a futility issue

with regard to requesting oral reply times, arguing that

“it would have been impossib!e for the agency to accom-

plish oral responses for all controllers within the time

frame prescribed by Mr. Kiss.” Kiss, on the other hand,

testified that all oral replies would have been heard. We

need not consider this hypothetical situation. The fact

is that no requests for ora! reply times within the seven

day period were made.

For the above reasons, we therefore agree with the

board that petitioners have failed to demonstrate any

procedural error in the agency’s handling of the oral

response requests.

The Ex Parte Communications and Advisory Opinions

by the MSPB

Petitioners allege the occurrence of improper ex parte

communications between Special Presiding Official Ken-

neth Goshorn and agency representative Diane R. | ff

on February 23-24, 1984. Petitioners’ representative noti-

fied the board of the communications by letter dated

March 7, 1983. After a thorough investigation, the

board’s Ethies Officer determined that the conversations

were procedural in nature, did not relate to the merits

of a board appeal, and, therefore, did not constitute a

prohibited ex parte communication under 5 C.F.R.

§ 1201.102. The full board concurred in that determina-

tion.

Petitioners, in their reply brief, admit that the ez

parte communications in issue are themselves insufficient

to warrant reversal of the board’s decision. Rather, they

request that the incident be considered along with “other

due process violations” that occurred.

The “other due process violations” petitioners delin-

eated are the promulgation of “advisory opinions” by

the General Counsel’s office of the MSPB. In response

to an FOIA request, petitioners obtained copies of legal

memoranda which were sent by the board’s General Coun-

sel to the board’s then Acting Assistant Managing Direc-

tor for Regional Operations and which were transmitted

to regional directors under cover of a memorandum which

identified the enclosures as “Advisory Opinions from Of-

fice of General Counsel.”

Petitioners’ contention is that the “creation, circula-

tion and incorporation” of advisory opinions viclates 5

U.S.C. § 1205(g).2- According to petitioners, “[FJor the

Board to pre-determine the resolution of a number of legal

issues violates [their] right to meaningful review.”

In the subject memoranda the General Counsel ad-

dressed the issues of:

1. Challenges to the constitutionality of 5 U.S.C.

§§ 3333 and 7311(3) and the board’s power to

pass on constitutional questions.

2. Whether first amendment rights of controllers

were violated.

3. Whether disputes over pay, safety, and working

conditions justified the strike.

4. Whether violation of 5 U.S.C. § 7311(3) requires

removal.

5. Whether presiding officials can take “official no-

tice” of the strike.

The memoranda contain analyses of the pertinent

case law and legal commentary and, in some instances,

state the author’s conclusions. The transmittal memoran-

dum from the Assistant Managing Director advised pre-

siding officials that they were “not obligated” to follow

the analysis, stating: “Indeed, presiding officials are re-

sponsible for conducting their own research of the is-

”

sues....

2 5 U.S.C. § 1205(g) reads:

(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 opin-

ions. All regulations of the Board shall be published in

the Federal Register. [Emphasis added. ]

We agree with respondent that 5 U.S.C. § 1205(g)

does not prohibit the General Counsel from issuing legal

memoranda reflecting research into common issues in these

proceedings.’ Indeed, under 5 C.F.R. § 1200.10(c), the

primary function of the Office of General Counsel is to

provide “legal advice to the Board and its staff,” which

necessarily includes the Office of the Managing Director

and the field offices. That some presiding officials adopt-

ed part of the language from the memoranda does not

indicate an abdication of their responsibilities or dicta-

tion of result by the General Counsel’s Office.

In any event, the thrust of 5 U.S.C. ¢ 1205(g) appears

to be to prohibit the board from issuing advisory opinions

to the public, a prohibition comparable 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. A viola-

tion by action of this nature is not asserted by petitioners.

For these reasons, therefore, we affirm the decision

of the board that these procedural issues are meritless.

Individual Fact Situations

Russell S. Root

Root was originally scheduled for annual leave from

August 1 through August 6, had regular days off on Au-

gust 7 and 8, and was, therefore, due to returr to work

on August 9. Before the presiding official, the agency

3 In a motion for remand, petitioners appear to concede that

the General Counsel’s memoranda were not per se unlawful

but sought remand to determine if some presiding officials

were unduly influenced.

introduced a telephone memorandum, as well as the testi-

mony of Kiss, indicating that on August 2, 1981, Root’s

supervisor, Gutenberg, had called Root’s home and in-

formed Root’s wife that Root’s leave had been cancelled,

and that Mrs. Root had agreed to forward the message

to her husband.

In a subsequent conversation on August 4, Kiss spoke

directly with Root and requested that he return to work

but Root said he could not do that. Cancellation of annual

leave was admittedly not discussed during this conversa-

tion.

On August 8, 1981, petitioner Root called Kiss and

requested to return to work on August 9.4 Kiss refused

this request, indicating to Root that he had missed his

agency deadline for returning to duty on August 6.

Root asserts that the agency has failed to present

any evidence indicating that he actually received word

from his wife that his annual leave had been cancelled;

moreover, he “does not concede” that the phone call to

his wife was even made.’ He discounts all evidence pre-

sented on this issue as hearsay.

4 As mentioned in n.1, since Root indicated a willingness to

return to work, the board found his suspension to be unlaw-

ful, and ordered that he be placed in a duty and pay status

from August 8 until his removal on September 2.

5 Root also argues that his leave was not properly cancelled.

The propriety of the agency’s cancellation of annual leave is

affirmed in Letenyei v. Department of Transportation, FAA, No.

83-1174 (Fed. Cir. May 18, 1984). Unlike Letenyei, Root offered

no testimony that he was not a striker, so that remand is not

appropriate.

The board considered Root’s argument but found it

unpersuasive. Root never denied receiving the message

from his wife. We believe the board was correct in draw-

ing an adverse inference from Root’s failure to testify

and contest the evidence presented by the agency. See

Adams, slip op. at 7-9

With regard to Root’s hearsay argument, we note that

it does not appear that counsel for Root objected to the

introduction of the evidence at issue. But, in any event,

hearsay evidence is admissible and may be sufficient in

board proceedings. Richardson v. Perales, 402 U.S. 389

(1971); Peters v. United States, 408 F.2d 791 (Ct.Cl.

1969). See also, Dorrance, slip op. at 4-5.

David Gold

Petitioner Gold seeks reversal of his removal on the

basis of a defective notice of proposed removal. The

notice of proposed removal sent by Kiss to Gold on Au-

gust 18 indicated that he was being charged with striking

and with being AWOL beginning at 3:15 p.m. on August

13. At the hearing, Kiss admitted that he had learned

subsequently that Gold’s Time and Attendance Record,

on which he based the notice, was in error and that Gold

had, in fact, been on pre-approved spot leave through

August 16. The board noted that Gold did not dispute

that August 17 was his deadline, and upheld his removal

solely on the basis of his failure to report on that date.

Gold claims that because of the “defective” notice

of proposed removal, he was given no advance notice

of the “real” reason for his termination. Gold points to

5 U.S.C. § 7513(b)(1) which requires an agency to state,

in a notice of removal, “the specific reasons for the pro-

posed action.”

Contrary to Gold’s view, a notice of proposed re-

moval or removal notice which contains charges which are

not sustained is not “defective.” An adverse action may

be sustained even though not all charges on which the ac-

tion is stated to be based are sustained. See, e.g., Pascal

v. United States, 543 F.2d 1284, 1289 (Ct.Cl. 1976). The

question here is whether the notice adequately apprised

Gold that he would have to defend the charge of striking

on August 17, the ground on which the action was sus-

tained. Viewed this way, there is no question but that

he was advised that his removal was proposed for partici-

pation in a strike against the United States during a

period which specifically included August 17. Gold was,

thus, well aware that he would be required to explain

his absence from the facility on that date and raises here

no valid defense to that charge. Proof of one day of

striking was entirely sufficient to warrant removal.

We hold that the agency notice supplied sufficient

information upon which Mr. Gold could make an “informed

reply.”

6 Before the MSPB, Gold asserted that the strike ended on Au-

gust 5. However, based on the evidence, the MSPB held that

the strike continued at least through August 17, 1981 at the

DARCC. Substantial evidence supports that finding. The elim-

ination of some dates did affect the days for which Gold could

be charged as being AWOL and receive no pay. No complaint

is raised here that he did not receive the amounts due as a

result of the correction in his record.

Thaddeus W. Wallace

Petitioner Wallace was on approved annual leave

and days off from August 1 through August 12. The

agency attempted, but was unable, to contact Wallace to

cancel his annual leave. Kiss testified at the hearing that,

on August 10, Wallace telephoned his supervisor, Hodges,

and stated that he was aware of the strike and would re-

turn to work on August 11. Wallace failed to report for

work on the 11th or on the 13th, his next scheduled shift

after the expiration of his authorized leave. He was

charged with strike participation and absence without

leave from August 13 through August 19. The MSPB

upheld the removal on the basis of his absence on Au-

gust 13.

As we stated previously with respect to Gold, sub-

stantial evidence supports the board’s finding that the

strike lasted at least through August 17, and Wallace’s

absence on August 13 is unexplained. We therefore af-

firm the board’s finding that the agency established a

prima facie case of strike participation by Wallace on

August 13.

Wallace’s specific arguinent appears to be that Kiss’s

testimony could not establish his actual awareness of the

sirike on August 11. There is no indication that the board

relied on this testimeny and no explanation by petitioner

how exclusion of the testimony would have affected his

case.

Conclusion

For the reasons state herein and in the related cases

decided today, the decision of the Merit Systems Protec-

tion Board affirming the removal! of petitioners is af-

firmed.

AFFIRMED

Appendix

ISIAH BAILEY TERESA M. MICHAELS

PETER J. BAKER BARTHOLOMEW H. MUNOZ

RICK W. BAWEK MICHAEL M. MURPHY

BARBARA |. BICKFORD MICHAEL A. NORD

WILLIAM R. COLLIER ROBERTS M. O’GRADY

DENNIS L. DOWSE DARRELL G. OTTERSBERG

RICHARD B. DUNCAN EDWARD E. PHILLIPS

STEPHEN G. FINCHER ROGER E. PRICE

DAVID GOLD THOMAS A. PUTNEY

GILBERT R. GULICK SHANNON K. REDDING

DAVID C. HARRISON RUSSELL S. ROOT

JOHN F. HAYES, JR. ALFRED SAENZ

TIMOTHY F. HIPSHER JAMES L. SCHILTHUIS

FREDERICK L. HOOD DAVID W. SHALLCROSS

JAMES R. HUME JERRY W. SOUKUP

ROBERT K. KEBARTAS JAMES T. SPINUZZI

TERRY T. KELLING DARRELL L. TAYLOR

KEITH T. KEMPTER PAULA J. VAN DUSEN

LESLIE H. KLAHN, JR. ROBERT L. VAN DYKE

ROBERT E. KOVACH PAUL D. VAUGHAN

LAWRENCE J. KRAUSS MICHAEL J. VIOLETTE

JOSEPH J. KREUZER THADDEUS W. WALLACE

BRADLEY P. LIGHT RICHARD D. WALLER

BRUCE C. MEACHUM ROBERT E. WARD

DANNY M. MITCHELL THOMAS G. WEIMER

RODNEY P. MICHAELS DEBRA J. WILLIAMS

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

May 18, 1984

ERRATUM

Appeal No. 83-663

Roy L. Schapansky v. Department of Transportation,

FAA, Decided:

Please make the following changes:

Page 13, first full paragraph, line 1, insert after

“Transportation” —F AA ,—.

Page 15, line 5, delete “No. 83-859, slip op. at 11 (Fed.

Cir. Dec. 30, 1983)” and insert after “Develop-

ment,” —724 F.2d 943, 949 (Fed. Cir. 1983).—.

Page 17, first full paragraph, line 6, insert a comma after

“jones” and delete “v. U. S.,”.

Page 18, line 7, correct “Don” to read—Dow—.

line 10, change “Patco” to—PATCO—and insert

comma after “(7th Cir.)”.

Page 20, first full paragraph, line 8, delete “United

States”.

Page 22, first full paragraph, line 3, delete “Jn Re:”.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal No. 83-663

ROY L. SCHAPANSKY,

Petitioner,

DEPARTMENT OF TRANSPORTATION, FAA,

Respondent.

DECIDED: May 18, 1984

Before MARKEY, Chief Judge, FRIEDMAN, RICH,

SMITH and NIES, Corcutt Judges.

MARKEY, Chief Judge.

Appeal from a decision of the Merit Systems Pro-

tection Board (Board), Docket Number DA075281F1130,

sustaining the August 26, 1981, permanent removal of Roy

LL. Schapansky (Schapansky), by the Department of Trans-

portation’s Federal Aviation Administration (agency)

from his position as Air Traffic Control Specialist at the

Air Route Traffic Control Center in Fort Worth, Texas.

We affurm.

BACKGROUND

Removal was based on charges of participation in a

strike against the United States from August 3 to August

5, 1981, absence without leave for the same period, and

violation of the “loyalty and striking” provision of 5 U.S.C.

§ 7311." Sehapansky appealed to the Board’s Dallas Re-

gional Office, which sustained the removal on May 14,

1982. On timely petition for review, the full Board af-

firmed the presiding official’s decision and sustained

Schapansky’s removal on October 28, 1982.

Presiding Official

The presiding official determined that the agency

had established by a preponderance of the evidence: (1)

that Schapansky was a member of the union, the Profes-

sional Air Traffie Controllers Organization (PATCO) ;

(2) that he was aware of the strike by the members of

PATCO; (3) that he intended to and did participate in

that strike by refusing, in concert with others, to provide

his services to his employer; (4) that the ageney did not

' “§ 7311. Loyalty and striking

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) advecates the overthrow of our constitution-

al form of government;

(2) is a member of an organization that he nows

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 amember of an organization of employees

of the Government of the United States or of indi-

viduals employed by the government of the District

of Columbia that he now asserts the right to strike

against the Government of the United States or the

government of the District of Columbia.”

err in applying the statutory provision of 5 U.S.C. § 7513

(b) (1);? (5) that the agency was correct under § 7513(b)

(1) in disregarding the requirement for 30 day notice be-

fore deciding upon and effecting an adverse action be-

cause it had “reasonable cause to believe the employee

hafd] committed a crime” and because 18 U.S.C. § 1918°

2 Section 5 U.S.C. § 7513 provides, in pertinent part:

“§ 7513. Cause and procedure

(a) Under regulations prescribed by the Office of

Personnel Management, an agency may take an action cov-

ered 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,

unless there is reasonable cause to believe the em-

ployee has committed a crime for which a sentence

of imprisonment may be imposed, stating the spe-

cific reasons for the proposed action;

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

to answer orally and in writing and to 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.”

3 “§ 1918. Disloyalty and asserting the right to strike against

the Government.

Whoever violates the provision of section 7311 of

title 5 that an individual may not accept or hold a posi-

tion in the Government of the United States or the gov-

ernment of the District of Columbia if he—

_ (1) advocates the overthrow of our constitu-

tional form of government;

(Continued on next page)

makes striking by federal employees a crime; (6) that

once an agency invokes § 7311, removal of the employee

is mandatory; and (7) that removal was required to pro-

mote efficiency of the service under § 7513(a).

Board

Before the Board, Schapansky reiterated his basic

contention that no evidence supported a finding that he

had participated in the strike. He conceded that he was

absent without leave on August 3, 4, and 5, 1981, and that

his absence was a protest against the same conditions that

other PATCO members were protesting by withholding

their services. Schapansky said other PATCO members

were “thinking different”, but he viewed his absence as a

legal protest and PATCO’s “lawyers would take care of

it.” The presiding official, in finding that Schapansky

was aware of and intended to participate in the strike,

cited Schapansky’s own testimony that he voted “yes” when

a “strike vote” was taken by PATCO members on August

(Continued from previous page)

(2) is a 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 indi-

viduals employed by the government of the District

of Columbia that he nows 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.”

2, 1981, and that the agency had informed him that the

strike would be in violation of law. The Board found no

basis on which to disagree with the presiding official’s

finding or assessment of the hearing testimony.

The Board noted that Schapansky in his petition for

review neither challenged the presiding official’s discred-

iting of his assertion that he was absent because of har-

assment and fear for his personal safety, nor asserted

any other basis on which his absence might be determined

to have been involuntary.

Schapansky challenged the agency’s consideration of

a photograph showing him among PATCO picketers, say-

ing he is not shown as carrying a sign and that nothing

showed him among picketers on August 3 or 4. The Board

said that voluntary withholding of services in concert

with others, not physical presence on a picket line, con-

stitutes the gravamen of the charge. Schapansky’s chal-

lenge of the photograph was therefore found unavailing.

On the merits of the basic charges, the Board held

that the agency had proved the charges, that Schapansky

had not rebutted the evidence of his knowledge of the

strike and of his intent to withhold his services along with

other PATCO members, and that he had made no showing

that his absence was due to any factor other than strike

participation.

Objecting to the absence of a 30-day advance written

notice, Schapansky argued that he had not been formally

charged with or convicted of a crime and that the agency

had not proved his intent to do anything illegal. The

Board pointed out that it has not adopted criminal charges,

convictions, or proof of illegal intent as prerequisites to

a finding of “reasonable cause to believe” that a crime

had been committed in support of a decision to disregard

the notice provision. The Board went on to say that be-

cause 91918 makes participation in a strike against the

United States a felony punishable by up to one year and

a day of imprisonment, and because Schapansky’s conduct

evidenced such participation, it would sustain the finding

that the agency had reasonable cause to believe that a

crime had been committed and that disregard of the no-

tice requirement was thus permissible under § 7513(b)

(1).

Reading §7311(3) as mandating removal when a

charge of striking is sustained, the Board rejected Scha-

pansky’s contention that removal was unreasonable. The

Board further noted the self-evident gravity of Schapan-

sky’s offense in participating in a strike against the Gov-

ernment, that by its very nature such action disrupts the

Government’s performance of its mission, that it is a

criminal offense, that the position ot air traffic controller

is highly sensitive, the incumbent being directly respon-

sible for the safety of passengers, and that that respon-

sibility entails maintenance of the confidence of his em-

ployer and the public who rely on him. The Board viewed

a controller’s intentional and ongoing abdication of that

responsibility, by participating in the strike and by con-

tinuing to strike despite the President’s 48-hour grace

period,* as constituting particularly egregious conduct

* At approximately 11:00 a.m. E.D.T. on August 3, 1981, the

President of the United States announced:

(Continued on next page)

which destroyed the controller’s unique relationship of

trust. The Board therefore held that the agency’s re-

moval penalty cannot be deemed excessive, disproportion-

ate, or unreasonable.

Sustaining the finding that removal will promote the

efficiency of the service, § 7513(a), the Board determined

that 47311 reflects the belief of Congress that removal

of an employee for participation in a strike promotes that

efficiency, and that there is a clear and direct relation-

ship of such misconduct to the employee’s satisfactory

accomplishment of his duties and to the agency’s ability

to fulfill its mission.

Issues?

(1) Whether the Board correctly determined that

the agency proved the charges by a preponder-

ance of the evidence.

(2) Whether the penalty of removal was too harsh

and unreasonable and should be mitigated.

(3) Whether the removal here was effected with

harmful procedural error.

(Continued from previous page)

This morning at 7:00 a.m. the union representing those

who man America’s air traffic facilities called a strike.—I

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.

While more than 1,200 controllers heeded the President's call

to return to work; approximately 11,500 continued to strike.

17 Weekly Comp. of Pres. Doc. 845 (August 3, 1981).

5 Because this and nine other “lead” cases involving air con-

trollers were argued before the same panel on the same day,

(Continued on next page)

OPINION

(1) The Charges

In discussing the issues, the briefs of Schapansky

and amici cite the lauguage of court opinions dealing

with matters and questions totally divorced from those

in a case dealing with the propriety of the government’s

action in removing those who strike against it. 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 mitigation is irrelevant when strik-

ing is proved, infra). Nonetheless, the facts of this case,

and the differences between them and those in other

types of cases, are such as to render without purpose a

discussion here of the many other types of cases cited in

the briefs.

The Board properly held that though the agency

could establish a prima facie case of striking by showing

an employee’s unauthorized absence during a strike of

(Continued from previous page)

counsel were permitted to present issues which may not have

been presented to the Board in the particular case argued by

counsel, but which had been presented to the Board in one or

more of the lead cases.

Similarly, the court has taken judicial notice, at Schapan-

sky’s request, of the materials in his Supplemental Appendix,

the Board having considered major segments of that appendix

in another lead case.

Briefs amicus curiae were received from three sets of

counsel collectively representing many hundreds of air con-

trollers whose cases are described by amici as likely to be

controlled by the outcome in this case. Issues and arguments

presented by amici in this case are addressed here.

general knowledge and his presence on the picket line,

the latter element is not essential, and the charge of

striking is proven when it is shown that the employee

withheld his services in concert with others, regardless

of whether the employee joined a picket line. Sec United

Federation of Postal Clerks v. Blount, 325 F. Supp. 879,

884 (D.D.C.), affirmed, 404 U.S. 802 (1972). The Board

did not, as amici assert, accept mere absence during a

strike as proof of the charges. On the contrary, as ap-

pears below, it took into account all of the facts and cir-

cumstances. The Board’s decision was not even remote-

ly ‘‘arbitrary, capricious, an abuse of diseretion or other-

wise not in accordance with law ...°? 5 U.S.C. ¢7703(e).

The record demonstrates unequivocally that the strike

was well and widely known, that Schapansky knew it was

illegal to strike against the government, that he knew

FAA considered PATCO’s ‘‘job action” an illegal strike,

that his absence was unexplained, that he never attempted

to contact the agency to advise it of any reason for his

absence, and that under the circumstances his absence

constituted evidence of participation in the strike. Proof

of a wide-spread strike of general knowledge, together

with proof of Schapansky’s absence without authoriza-

tion or explanation during the strike, must in the prac-

tical world constitute at least a prima facie case of his

participation in the strike.

Once an agency has made a prima facie showing, the

burden of going forward with evidence to rebut that

showing necessarily shifts to the employee, who is in the

best position to present explanatory evidence to counter

that showing. The burden of proving the charge by pre-

ponderance of the evidence is and remains throughout

upon the agency. The order of presentation, however,

is allocated in such a way that each party is required to

give evidence in the area in which it has the better aec-

cess to information. It may be that little countering

evidence would be required, where, for example, the prima

facie ease was minimally supported. We need not dis-

cuss that relationship here, however, for the prima facie

ease here was more than minimally supported and Seha-

pansky submitted no evidence effective to counter it.

The agency’s burden of proof respecting strike par-

ticipation may be deseribed as a burden of ‘‘persuasion”,

because it has ‘‘in form the alfirmative allegation’? and

must bear the burden of persuasion from start to finish.

See, 9 J. Wigmore, Wigmore on Evidence 2486, 2489 (J.

Chadbourn rev. ed. 1981).

Schapansky points to language in the Board’s opin-

ion in which it appeared to be placing a burden of per-

suasion on him. It is clear, however, from a reading of

the challenged phrase in the context of the entire opinion

that the Board in actuality placed a burden of produc-

tion, not persuasion, on Schapansky following presenta-

tion of the agency’s prima facie case. The Board spe-

cifically stated that it required the agency to “ultimately

establish”’ the employee’s participation in a strike. Thus

the Board did not, as Schapansky asserts, craft some new

approach for use in his case.

Absent effective rebuttal, the agency must be held

to have earried its burden of persuasion. Schapansky

concedes that the agency demonstrated existence oi the

strike and his absence during it without authoriz:tion or

explanation. It is undisputed that Schapznsky offered

no evidence before the Board that his absence was due

to other factors. Though that state of the record would

have been sufficient, the Board noted additional evidence

of Schapansky’s strike participation (his ‘‘yes’’ vote on

PATCO’s strike, his presence on the picket line, and his

admission that, simultaneously with his fellow union mem-

bers who were withholding their services, he withheld his

in what he eailed, after the fact, protest”).

Schapansky’s argument that the Board ignored the

intent element involved in the striking charge is without

merit. Before us, Schapansky says his only offense was

absence and that he visited the picket line only out ot

curiosity. The argument ignores the circumstances which

give meaning to his conduct. The Board specifically

noted that an intent to strike can be proved by circum-

stantial evidence. Circumstantial evidence can be more

persuasive and conclusive than direct evidence. Michalic

v. Cleveland Tankers, Inc., 364 U.S. 325 (1960). The un-

rebutted prima facie case here constitutes such circum-

stantial evidence. An employee who did not intend to

strike could, under the present circumstances, be expect-

ed to advise his employer of the true reasons for his

absence at the earliest possible moment. If extraordi-

nary circumstances (not here shown) prevented commu-

nication with his employer until the employee was mis-

takenly charged with strike participation, the employee

could certainly be expected to explain his absence when

(at the very latest) he responded to the agency’s pro-

posal to remove him. Schapansky’s intent to withhold

his services in concert with others is established on this

record.

Schapansky is equally incorrect in asserting that

proof of the charge requires proof of an employee’s spe-

cific intent to implement an agreed plan. Neither par-

ticipation in strike planning nor express agreement with

others to perpetrate the strike is a necessary ingredient

of proof that a particular employee participated in a

strike. If 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 sacrifices. Unex-

plained absence during a strike of general knowledge es-

tablishes that the employee ‘‘intended” to strike. The

law, like life, recognizes that one may not eat his cake

(strike for benefits) and have it too (escape removal

when the strike fails by merely denying intent).

In Moylan v. Department of Transportation, No. 83-

1150, also decided today, the amicus curiae argues that

the Board’s theory of proof announced in the present

ease denied the controllers due process because it retro-

actively subjected them to a ore onerous burden of

proot than the Board previously had applied. The ami-

cus’ argument is that the 3oard’s prior standard required

proof of active involvement in the strike, such as picket-

ing, to establish a prima facie case of striking, and that

in Schapansky’s case the Board eliminated that additional

element of proof.

The amicus’ argument rests upon an erroneous as-

sumption. There was no earlier rule requiring proot of

active involvement in the strike to establish strike par-

ticipation. Although earlier cases in which strike par-

ticipation was found involved picketing and other active

strike involvement, the Board never held that such ac-

tivities were an essential element of the proof of strike.

participation. The Board’s decision in the present case

did not change the standard of proof necessary to show

strike participation, but merely clarified it. Moreover,

although the amicus in Moylan argues that the Board’s

allegedly new standard of proof denied the controllers

a fair opportunity to present evidence under that stand-

ard, the amicus points to no specifie evidence that the

controllers would have introduced if they had known that

the Board would evaluate their cases under that standard.

All of the controllers had a due process opportunity be-

fore the Board to introduce evidence that they had not

participated in the strike, and many took that opportunity.

The charges of absence without leave and volation

of 5 U.S.C. 47311 are supported by the same evidence

found to support the charge of striking.

The Board found that the agency proved by a pre-

ponderance of the evidence the charges forming the basis

for Schapansky’s removal. Applying the statutory stand-

ard applicable to our review, we hold the Board’s decision

supported by substantial evidence and not to have been

arbitrary, capricious or otherwise not in accordanee with

law.

(2) The Penalty

Sustaining the agency’s determination that discharge

was an appropriate penalty, the Board declined to rule

on whether it had authority to mitigate it. In light o/

5 U.S.C. § 7311, it held that dismissal ‘‘cannot be deemed

clearly excessive or disproportionate to a sustained charge

of striking”.

Determination of the appropriate penalty is a mat-

ter committed primarily and largely to the discretion of

the employing agesyy. Jones v. United States, 617 F.2d

233, 236 (Ct. Cl. 1930). Only in the exceptional case, in

which the penalty exceeds that permitted by statute or

regulations or is so harsh that it amounts to an abuse

of diseretion, may its imposition be overturned. Weston

v. U. S. Department of Housing and Urban Development,

No. 83-859, slip op. at 11 (Fed. Cir. Dee. 30, 1983).

Whether the court would have chosen a different penalty,

had it been making the initial choice, is in the normal

ease irrelevant. ‘‘[PJenalty decisions are judgment calls

that should be ieft to the diseretion of the employing

agency.” Weiss v. Postal Service, 700 F.2d 754, 758 (1st

Cir. 1983). The penalty here was clearly not dispropor-

tionate to the offense.

Striking against the government is a grave offense

and a violation of the solemn oath an employee signs, as

did Schapansky, as a condition of his employment. Strik-

ing, moreover, is a criminal offense. See Jones, supra,

617 F.2d at 237. It disrupts the functioning of the gov-

ernment itself. In this case, the inescapable and thus

intentional goals of Schapansky and his striking cohorts,

absent prompt governmental capitulation, were to inflict

harm of the highest magnitude upon the national trans-

portation system, to cause great public inconvenience, to

injure the national economy, and to place at risk the pub-

lie safety. PATCO v. Federal Labor Relations Authority,

685 F.2d 547, 622 (D.C. Cir., 1982) (Mackinnon, J., con-

curring). Removal under such circumstances was clearly

justified, and the nexus between removal and efficiency

of the service is clear.

It is argued that removal of many striking controll-

ers actually injured the air traffic system, which was

forced *» rely on supervisors and new, rapidly trained

controllers. The argument is inappropriate here. Wheth-

er the long range efficiency of the service is better served

by capitulation, with its risk of encouraging future strikes,

or by a temporary reduction in service while new con-

trollers are trained, is solely a policy choice reserved to

the executive branch.

Nothing of record supports Schapansky’s assertions

that the permanent removal penalty should have been

mitigated and that mitigation considerations applicable

to other types of charges must be applied here. Sehapan-

sky cites the length and quality of his past service. How-

ever, the gravity and effects of Schapansky’s offense are

so great, and the statutes relating to strikes against the

United States are so unequivocal, that they do not merely

limit the extent of appropriate mitigation; they render

mitigation irrelevant. Congress has determined that re-

moval is an appropriate penalty for striking against the

government. It is therefore not necessary, as amc? con-

tend, to remand for a more complete record respecting

mitigation factors. An individual with the longest and

finest record may be removed when found to have irre-

vocably sullied that record by participating in the strike

at bar against the United States. Long and excellent ser-

viee creates no license to violate a criminal statute against

striking, and to violate one’s oath taken on the day of

employment that one would not strike. Congress cannot

be held to have acted unconstitutionally in enabling the

United States to refrain from continuing to employ one

who strikes against the federal government; nor can that

enablement be impeded by mitigating factors that may

be applicable to lesser offenses and different cireum-

stances.

Lastly with respect to the penalty, Schapansky has

not shown that his removal should be considered in light

of the government's failure to remove those who returned

to work during the Presidential grace period or ‘‘mora-

torium.’* Unevenness in application of a penalty is not

a ground for invalidating it, Jones v. U. S., supra, 617

F.2d at 288, Bute v. Glover Livestock Commission Co.,

411 U.S. 182, 187, 188 (1973). Moreover, the argument

relating to returnees does not involve unevenness. Those

who returned oceupy a status entirely different from that

of those who did not. Schapansky could have availed

himself of the opportunity (as 1,200 air controllers did),

but chose not to do so. ‘The President having established

a grace period, no reason exists for considering those

who elected to accept the presidential invitation as though

they were in the same category with those who dis-

dained it.

Similarly, also, amici’s reliance on the allegedly less

harsh response of the government to earlier and dilfer-

ent controller actions (a eall-in-sick and a slowdown)

which amict say the ageney considered to have been

strikes, is irrelevant. That other government workers

have struck and been allowed to return to work, see Mill-

er v. Bond, 641 F.2d 997 (D.C. Cir. 1981) and Benson v.

Don, 520 F. Supp. 231 (W.D. Pa. 1981), or that a court

may have viewed it permissible under some circum-

stances to continue government strikers in employment,

see U.S. v. Patce, 653 F.2d 1134 (7th Cir.) cert. denied,

454 U.S. 1083 (1981), cannot be viewed as forever bind-

ing the government against the removal of any striker

under any circumstances. Whether removal is manda-

tory under 5 U.S.C. $7311 or 18 U.S.C. § 1918 need not

be here decided. Removal is permissible under those

statutes and no statute prohibits removal of any who

strike against the United States. Beyond differing cir-

cumstances surrounding earlier events, nothing in the

law requires that its enforcement with less than full vigor

in the face of one violation of the law binds the govern-

ment against full and fair enforcement in the face of a

later and distinct violation of that law. Ideal justice,

and government personnel regulations, envisage equal

treatment of persons similarly situated. Whether those

involved in earlier events were similarly situated is not

here determinable. What is clear is that merey and

compassion, if such were shown in response to earlier

and differing infractions, should not be forged into

handeuffs restricting the government’s response to the

present strike of air controllers in 1981.

Similarly, amici’s strong assertion that the Board

disregarded here its own approach to determination of

the appropriateness of a penalty, see Douglas v. Veter-

ans Adminstration, 5 MSPB 313 (1981) and Woody v.

General Services Administration, MSPB Docket No.

SF07528110028 (June 2, 1981) is unsupported in the

record. That the penalty includes a barrier to reem-

ployment as a controller is not unreasonable in view of

the statute, 5 U.S.C. $7311 (‘‘may not accept or hold a

position’’), and does not require Schapansky’'s reinstate-

ment as a controller.

We hold that the penalty here was not arbitrary,

capricious, or otherwise not in accordance with law.

(3) Procedures

Schapansky says that because his unauthorized and

unexplained absence during the strike did not constitute

a ‘‘reasonable cause to believe” he had committed a crime,

his discharge with less than thirty days notice was pro-

cedurally defective.

Section 7513(b) makes the normal 30 days’ notice

unnecessary when the agency has “reasonable cause to

believe the employee has committed a crime for which a

sentence of imprisonment may be imposed.” As above in-

dicated, 18 U.S.C. § 1918 makes participation in a strike

against the goverament such a erime. Schapansky’s un-

explained absence during a well known strike established

reasonable basis for the agency to believe that he was

engaged in such participation and thereby automatically

established a reasonable basis for its belief that he had

committed the erime of striking against the government.

That a second charge, absence without leave, does not

relate to a crime is irrelevant. An ageney is not required

to wait 30 days to respond to an employee’s miseconduet

when that misconduct is reasonably believed to constitute

a erime.

Though Schapansky complains of tie lack of 30-day

notice, he makes no attempt to demonstrate that the

shortened time of notice was harmtul. The Civil Service

Reform Act specilies that only harmful procedural errors

may vitiate an agency action. 5 U.S.C. § 7701(c)(2)(A)

(Supp. 11 1978). To be harmtul the error must substan-

tially impair the employee’s rights. Shaw v. Postal Ser-

vice, 697 F.2d 1078 (Fed. Cir. 1983); Brewer v. United

States Postal Service, 647 F.2d 1093 (Ct. Cl. 1981), cert.

denied, 404 U.S. 1144 (1982). Nothing of record would

indicate that if the shortened time of notice were error

(and as above indicated it was not), it impaired Scha-

pansky’s rights in any manner.

Schapansky argues that the President’s August 3,

1981 announcement was a final decision to discharge him

and that the agency’s removal proposal did not afford him

a meaningful opportunity to reply. Amici argue that

Schapansky should have been given the right to reply to

the President and to demand that the President state his

reasons for his action. The argument is without merit.

The President’s announcement said those who re-

turned would retain, and those who continued to strike

would forfeit, their positions. Some 1200 controllers re-

turned. Having elected to continue on strike, Schapan-

sky could hardly have been surprised when the promised

removal notice arrived. There was, contrary to Scha-

pansky’s argument, no discharge of Schapansky or of

anyone else on August 3, 1981. After August 5, 1981,

the agency carefully gave Schapansky all possible oppor-

tunities to reply under an entire panoply of rules, proce-

dures, and regulations. Indeed, Schapansky filed three

written responses and responded orally. Nothing what-

ever of record supports Schapansky’s implication that he

would not have been retained if he had shown a basis for

his absence other than participation in the strike.

The President in no manner usurped the authority

and responsibility of agency officials to determine wheth-

er each individual had continued to engage in the strike

after the August 5, 1981 deadline. In view of the need

to continue a safe air transportation systein for the pub-

lic, the President’s dispensation was, as has been well

described, a ‘‘grace” period that ‘‘worked’’ insofar as

it enabled 1200 controllers to return promptly to main-

tenance of that system. One who commits a crime by

striking against the government can be seen to have done

so from the first moment he withholds his services in con-

cert with others. Schapansky, along with all other strik-

ing air controllers, was in this case given a chance to

rethink for two days and thereafter was yiven a full and

complete due process opportunity to show that he had

not in fact struck against the United States. The Presi-

dent bears a constitutional duty to ‘‘take care that the

laws be faithfully executed,” U.S. Const., Art. II, 43,

el. 4. His action here was directly within his official

responsibility, not merely within its ‘‘outer perimeter”

as was found permissible in Harlow v. Fitzgerald, 457

U. S. 800 (1982). The President acted here in a manner

obviously ealculated to balance the public interest in a

continuation of air transportation, immediate enforce-

ment of the law, and an opportunity for violators to re-

consider. An argument that the President’s grace period

somehow denied due process comes with poor grace trom

one who ignored it.

Schapansky cites decisions in contempt actions against

PATCO and individuals for noncompliance with court

orders to return to work: Jn re: Professional Air Traf-

fic Controllers Organization, Atr Transport Assoctation

of America v. Pro,essional Air Traffic Controllers Or-

ganization, 699 F.2d 539 (D.C. Cir. 1983); PATCO v.

Federal Labor Relations Authority, 685 F.2d 547 (D. C.

Cir. 1982); United States v. Phillips, 525 F. Supp. 1, 8 n.

6 (N.D. Ill. 1981); United States v. PATCO, 525 F. Supp.

820, 822 (K.D. Mich. 1981); United States v. Haggerty,

528 F. Supp. 1286, 1296 (D. Colo. 1981) and language in

opinions accompanying those decisions indicating that

return to work was not possible after failure to meet the

President’s deadline. The citations are irrelevant here.

That Schapansky lacked after his deadline a unilateral

authority to simply return to work at will, and could not

therefore be held in contempt of a return to work order,

bears no relation to whether the procedures applied to

his removal were proper. That those procedures were

cnided from agency headquarters, and spelled out that

controllers would be removed if it were proven that they

participated in the strike, speaks for, not against, an ex-

ercise of care for employee rights under ditfieult and

unusual circumstances.

Amici assert that the agenecy’s procedures giving

Schapansky an opportunity to explain his absence were

a “sham” because the ageney was “forced” by the Presi-

dent’s announcement to fire him. At the same time, amici

complain that there was disparate treatment because

some controllers, having apparently made adequate ex-

planations (deseribed by Amici as ‘‘settlements’’), were

not discharged. Amici further say: the President’s mora-

torium was an improper exercise of his power to pardon

(U. S. Constitution, art. I], §2 el. 2): the ageney had

no power to extend the President’s return to work dead-

line to the first scheduled shift following that deadline;

and that the agency failed to notify Schapansky that he

wonld not be removed if he met his next scheduled shift.

All of those arguments have been fully considered and

found without merit. Lastly, amici’s assertions concern-

ing the suffering of controllers’ families invoke our syim-

pathy; they cannot under the law invoke a reversal.

There is no basis whatever for Schapansky’s claim

that it was improper for the government to adopt a uni-

form policy of removing each employee whose participa-

tion in the illegal strike was proven, or that that policy

denied Schapansky a full and meaningful opportunity to

reply. Sehapansky has not in the slightest demonstrated

that any agency officials were unreceptive to evidence

that the faets supporting the charge were not as alleged,

and, as above indicated, mitigation is not an issue. The

Court of Claims has rejected the argument that an agen-

ey’s predetermination to remove an employee if the

charges against him were proven is improper. Pascal v.

United States, 543 F.2d 1284, 1289 (Ct. Cl. 1976). The

court there noted that the ‘‘erucial point is that the plain-

tiff has failed to demonstrate that the [ageney] would

have been impervious if the proof failed to show that

the facts were as charged.’’ Id.

We hold that the ageney’s procedures were ‘n accord-

ance with law and that their application involved no harm-

ful error.

DECISION

Accordingly, the Board’s decision sustaining the Au-

gust 26, 1981 permanent removal of Schapansky by the

agency from his position as Air Traffic Control Special-

ist at the Air Route Traffie Control Center in Fort

Worth, Texas, is affirmed.

AFFIRMED

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal No. 83-1155

RICHARD T. ADAMS, et al.,

Petitioners,

DEPARTMENT OF TRANSPORTATION, FAA,

Respondent.

Appeal No. 83-1156

GARY S. BARACCO,*

Petitioner,

DEPARTMENT OF TRANSPORTATION, FAA,

Respondent.

DECIDED: May 18, 1984

Before MARKEY, Chief Judge, FRIEDMAN, RICH,

SMITH and NIES, Circwit Judges.

MARKEY, Chief Judge.

Appeals from decisions of the Merit Systems Pro-

tection Board (Board), Docket Numbers NY 075281F0424,

DC 075281F0895, sustaining the August 1981 removal of

*Under Rule 43, Federal Rule of Appellate Procedure,

Marjorie F. Baracco, surviving spouse and personal represen-

tative of petitioner Gary S. Baracco (deceased), was substituted

as a party on motion.

Richard T. Adams, Gary Baracco, and others (Adams) by

the Department of Transportation’s Federal Aviation Ad-

ministration (agency) from their positions as Air Traffic

Control Specialists. The bases for removal constituted

proven charges of striking against the United States and

absence without leave. We affirm.

Background

The reader of this opinion is referred to this court’s

opinion accompanying its decision in Schapansky v. De-

partment of Transportation, FAA, No. 83-663, (Fed. Cir.

May 18, 1984) issued of even date. The discussion in

Schapansky of facts and issues common to that case and

this are adopted and incorporated in this opinion.

Except for instances in which a petitioner is iden-

tified by name, “Adams” should be read as applicable to

all petitioners in these present appeals.'

Issues raised by Adams and Amici and differing in

substance or detail from those discussed in Schapansky

are discussed ir tuis Opinion.

Unlike Schapansky, petitioners here made no oral

response to the notice of removal and were not shown to

have voted for the strike. Only Baracco was shown to

have engaged in picketing. Each present petitioner re-

ceived an agency letter proposing removal for strike par-

ticipation and absence without leave. Each responded

only by submitting union (PATCO) prepared forms re-

1 Listed in Appendix A are petitioners whose appeals are

hereby decided under Appeal No. 83-1155.

questing time enlargements and production of documents.

No petitioner denied the charges.’ No petitioner requested

opportunity for oral response, beyond the requests for

extension of time to answer “in writing and orally”. Nor

did any petitioner testify before either the ageney or the

Board. Other fact differences will appear in the course

of discussion on the issues.

Issues

(1) Whether government officials created such eon-

fusion concerning the Presidential deadline and

controller’s ability to return to duty as to have

prevented formation of an intent to strike.

(2) Whether the Board properly drew an adverse

inference from petitioners’ failure to testify.

(3) Whether the ageney unlawfully suspended peti-

tioners during ageney proceedings by placing

them in a non-duty, non-pay status without fol-

lowing the procedures of 5 U.S.C. § 7513.

(4) Whether the Board correctly found that the strike

lasted at least through August 19, 1981.

2 Adams’ assertion that a sentence in one stock PATCO re-

sponse (challenging any basis for a charge of committing a

crime) was a denial of the charges is creative, but unavailing.

The sentence was directed at the agency’s use of a shortened

notice period.

3 Amici want the removals vacated for lack of a 30 day notice,

asserting: (1) notice was sent before petitioners were found

striking; and (2) 18 U.S.C. § 1918, (making strikes a crime) vio-

lates the Thirteenth Amendment. Argument (1) is unfounded.

5 U.S.C. § 7513(b) requires only a “reasonable cause to be-

(Continued on next page)

OPINION

(1) Alleged Confusion

Adams’ brief contends that the President's announce-

ment and ageney actions respecting controllers’ ability to

avoid removal by returning te work were so confusing

that controllers were unable to form an intent to strike.

Petitioners have not told the agency, the Board, or this

court what their intent was in absenting themselves from

work throughout the time of the strike. Nor have they

pointed to any evidence upon which anything but an intent

to strike may be found, or which might counter the eir-

eumstantial evidence establishing an intent to strike.

(Continued from previous page)

lieve” an employee has committed a crime. Argument (2),

impressively stated, attempts too much. Nothing in § 1918

compels anyone to work against his or her will. It neither

prohibits nor impedes resignations.

Adams, Baracco, and Amici say the removal notice pro-

vided for reply “within 7 calendar days,’’ thus providing ef-

fectively for 6 days, in violation of 5 U.S.C. § 7513(b) (2) (reply

in “not less than 7 days’). The argument is semantic and

senseless on this record. The Board held the notice itself in-

clusive of 7 days, though it found harmless error in a letter

denying time enlargement to Baracco. Each petitioner re-

sponded to the notice within 7 days. In requesting time en-

largements, petitioners said they did not think ‘seven days

is a reasonable time’. If there were error, it was harmless,

no request for an oral reply time having been made within

the seven day period. The burden to show harm is petition-

ers’, 5 CFR § 1201.56(b) (1), Shaw v. Postal Service, 697 F.2d

1078, 1080 (Fed. Cir. 1983); yet no effort was made to show

that any additional reply was or would have been attempted

on the seventh day. The argument might be appropriate if

the agency hac refused to consider a reply filed on the seventh

day because not filled ‘within 7 calendar days.’’ This court

does not sit, however, to decide hypotheticals.

The President announced at 11:00 a.m., E.D.T., on

August 3, 1981, that controllers then striking who did not

report for duty within 48 hours would forfeit their posi-

tions and “will be” terminated. Because of differences

in shift schedules and time zones, the agency allowed con-

trollers to return to work at the time of regularly-sched-

uled shifts that began after 11:00 a.m., on August 5, 1981.

The briefs say controllers thought they had been fired

when they did not report to work before 11:00 a.m. on

August 5, 1981, and thus “could not” take advantage of

the permission to return at the time of their first regular-

ly-scheduled shift following that ending of the President’s

grace period. The argument is disingenuous. First, the

President’s announcement terminated no one, least of all

nonstrikers. Second, petitioners’ brief do not explain why

they did not, as did 1200 other controllers, report before

11:00 a.m. on August 5, 1981, or why they did not notify

the agency at any time before their next scheduled shifts

that they were not on strike, or why they did not simply

report and announce their readiness to work at the time

of their scheduled shifts, 1f they had no intention of strik-

ing at any of those times.

None of the present petitioners testified that he was

confused. Nor is there any evidence whatever that any

controller was confused.* Apparently recognizing the im-

possibility of an agency’s proving what was in an em-

ployee’s mind, Adams’ brief concedes that intent can be

4 The assertion that petitioner Miller did not understand the

charges is directly refuted in Miller’s letter, the only evidence

cited in the briefs as indicating that at least one petitioner was

confused.

sin

shown by circumstantial evidence. It makes no effort,

however, to blunt the thrust of the view that a controller

absent at commencement of the strike, but truly not in-

tending to participate in it, would, promptly upon hearing

or hearing of the President’s announcement, contact the

agency and relieve it of any presumption that his absence

was in any manner related to the strike. Petitioners alone

knew their true intent.

Nor is there a logical, common sense basis for believ-

ing that the President’s announcement envisaged an ac-

tual, simultaneous “return to work” of 15,000 controllers,

or for believing that all non-reporting controllers had been

“fired” as of August 5. If any such belief existed, the

notice petitioners received of a proposal to remove them

and of their opportunity to reply should have disabused.

them of it. That one having no intent to strike would so

cavalierly accept the loss of one’s job as of August 5, or

would fail to inquire, or would fail to report or return be-

fore 11:00 a.m. on August 5, 1981, or would fail to report

for work at the next scheduled shift, or would fail to ex-

plain his absence at the agency proceeding or before the

board, simply defies rationality.

The citations of criminal cases, in which proof must

meet a beyond-a-reasonable-doubt standard and in which

mere proof of absence was found consistent with resigna-

tion, e.g., United States v. McCubbm, Nos. 81-2059 through

2063, (10th Cir., Aug. 22, 1983); United States v. Mar-

tinez, 686 F.2d 334 (Sth Cir. 1982), are inapt.

Petitioners’ argument that the agency had a burden

to notify each controller individually that he or she had

until the specific time of that controller’s next scheduled

shift in which to take advantage of the President’s grace

period is without merit. Each petitioner knew when his

next regularly-scheduled shift commenced and elected not

to show up at that time. Having disregarded the initial

48 hour moratorium, petitioners can hardly complain that

they were not specifically and personally notified that

each had an opportunity to also disregard an extension of

that moratorium. There is nothing whatever of record

to indicate that any petitioner would have returned or

had any interest whatever in returning to work at the

time of his next regularly scheduled shift. Nor is there

any evidence whatever to indicate that every returning

petitioner would have been turned aside. Indeed, the evi-

dence is to the contrary.

Ad hoc speculations of lawyers cannot substitute for

evidence of what actually occurred. Though the court has

in the rare circumstances of these cases permitted counsel

substantial leeway in argument, there must be evidence

in the record somewhere in these cases to support coun-

sel’s arguments, for this court’s decision must be based

on a “review [of] the record”. 5 U.S.C. § 7703(c).

The argument that confusion prevented formation

of an intent to strike is at best unpersuasive.

(2) The Adverse Inference

Once the agency had presented evidence of strike

participation, it was not improper to draw an adverse in-

ference from petitioners’ refusal to testify or otherwise

offer rebuttal evidence before the Board.

Adams concedes the propriety of adverse inferences

in civil cases when a party is silent in the face of proba-

set hal abet at RAL ENN RS waht

tive adverse evidence. See Baxter v. Pa'’migiano, 425 U.S.

308, 318-19 (1976); Book v. Postal Service, 675 F.2d 158

(8th Cir. 1982). The briefs say failure to deny the charg-

es is irrelevant because the agency had not presented suf-

ficient adverse evidence. The argument is meritless. The

agency had presented before the Board a prima facie case

of strike participation fully adequate to support the

charges in the absence of countervailing rebuttal.

Attacking the presiding official’s decision, Adams’

brief says failure to rebut the agency’s allegations was

in that decision considered part of the prima facie case

itself. Petitioners declined twice, however, to explain

their absences, once during the agency removal proceed-

ings and again during the Board hearing. The first fail-

ure to deny the charges left those absences unauthorized

and unexplained, thereby adding to the sufficiency of the

agency’s prima facie case. It is the Board’s decision we

review, and petitioners’ silence before the Board, after

the agency had established a prima facie case, fully war-

ranted the Board’s drawing of an adverse inference.

“Silence is often evidence of the most persuasive char-

acter”. United States ex rel. Bilokumsky v. Tod, 263

U. S. 149, 153-54 (1923).

The judicial process is not entirely divorced “from

common sense and the everyday experiences of human-

kind. Petitioners had every reason and incentive to

strenuously deny the charge of strike participation 4

they were not in truth strikers. But fear of prosecution

for perjury, one may devoutly hope, has not entirely dis-

appeared. The law and experience teach that a striker

ean be expected to refrain from falsely testifying under

oath that his absence was due to non-strike reasons.

No error occurred in the Board’s drawing of an ad-

verse inference in this case.

(3) Suspension

Petitioners argue that they should be given back pay

because they were constructively suspended during the

period between the notice proposing removal and the date

of removal.

Petitioners say that if they had reported for duty

after failing to report after their deadlines, they would

not have been permitted to work. Hence, say petitioners,

reporting would have been a futile act, and that failure

to place them in a non-duty-with-pay status was a con.

structive suspension. The Board, however, correctly held

as a matter of law that petitioners had to show that they

were ready, willing, and able to work after their receipt

of notice. No such evidence was offered by these petition-

ers.

When petitioners failed to report to work as sched-

uled, they were considered absent without leave and were

not paid. Like most federal employees, petitioners were

not paid for unworked time, unless that time was sched-

uled as paid leave. Petitioners nonetheless claim entitle-

ment to pay during a time when, through their own voli-

tion, they were absent from work without authorization,

and during which they gave the agency no reason to be-

lieve they wanted to come to work. Choosing to absent

themselves, petitioners created a situation in which the

agency could not pay them, and at least an ambiguity in

their pay status clarifiable only by action on their part.

The view that one need not perform a knowingly futile

act may be applicable to strikes in the private sector and

to employer-created ambiguities. It is clearly inapplie-

able here. To order that petitioners be paid under the

present circumstances is impermissible in view of long-

standing federal pay policy and the necessity of distin-

guishing between those controllers who chose to report

for duty between the receipt of notiee and the date of

removal and those controllers who, like petitioners, did

not.

Petitioners, moreover, bear the burden of establish-

ing the Board’s jurisdiction, Stern v. Department of the

Army, 699 F.2d 1312 (Fed. Cir. 1983), and their failure

to establish that they were ready, willing, and able to

work during the involved period constitutes a failure to

carry that burden. Procedures under 5 U.S.C. § 7513 are

inapplicable to “voluntary actions initiated by the em-

ployee”. 5 CFR § 752.401(¢)(3) (1981). See Taylor v.

United States, 591 F.2d 688 (Ct. Cl. 1979). Non-duty

status here was voluntary. It was not agency-enforeed

or agency-initiated disciplinary action. There was no sus-

pension, constructive or otherwise. See Armand v. United

States, 136 Ct. Cl. 339 (1956).

The argument based on a constructive suspension the-

ory must fail.

(4) Tie Strike Period

Petitioner Giannattasio was not required to report

for work until 11 a.m., August 12, 1981, apparently because

he was on annual leave until that time. When he failed

to report, he was served with a notice of proposed remov-

al dated August 12, 1981, charging him with striking as

of that date. Giannattasio contended before the Board

that the agency had not proved the strike was still in

progress on August 12. The Board rejected that asser-

tion, finding that the strike continued at least through

August 19, 1981.

It has been said that the agency must prove: (1)

that a strike was in progress on the date striking is

charged; and (2) that the employee could have returned

to work on that date. Aetcham v. Federa! Aviation Ad-

ministration, 82 FMSR{ 7026 (May 28, 1982).

The unrebutted evidence in the present case shows

conclusively that the New York Center air traffie con-

trollers were not fired at 11 a.m. on August 5, 1981, and

were not locked out at that time. Guiannattasio concedes

that the agency interpreted the President’s August 3,

1981 announcement as permitting air traffic controllers

to return to work at the time of their first assigned shift

beginning atfer 11 a.m., on August 5, 1981.

There is no evidence in this record that if Giannat-

tasio had attempted to return to work at 7 a.m. on August

12 he would not have been allowed to do so. Indeed, the

evidence is to the contrary. As the Board noted, the

chief of the New York Center “testified that each of the

appellants would have been permitted to return to work

prior to the deadline shift with which they were charged

with striking.” Nor is there any evidence that Giannat-

tasio was removed before August 28, 1981, after he had

received the notice of proposed termination and filed a

written reply thereto.

Xeni Fed anivadianines Seteieitats

. ETE ae

The only remaining issue is whether substantial evi-

dence supports the Board's findings that the strike still

continued on August 12, 1981, and that Giannattasio’s

failure to report on that date constituted participation in

the strike. There is no doubt that a strike began on Au-

gust 3, 1981. That strike continued until some event

ended it.

There is no evidence that the union terminated the

strike before August 12, 1981. Substantial absences con-

tinued at the New York Center well into September, as did

picketing with signs stating “PATCO LOCAL 201 ON

STRIKE” and numerous statements by union officials

that the strike of Loeal 201 was continuing. Neither did

the government end the strike before that date by termi-

nating the employment relationship between itself and the

controllers. Although the government had begun proced-

ures to remove the controllers by August 12, Giannattasio

and many of his fellow controllers were still employees

on that date. a

Giannattasio relies on pronouncements and _ press

statements of various government officials indicating that

the strike ended before August 12, 1981, and on state-

ments in court opinions indicating that the strike ended

before August 19, 1981. See United States v. Haggerty,

528 F. Supp. 1286 (1D. Col. 1981).

The government cites other authority in support of

the Board’s finding that the strike continued substantially

beyond August 5, 1981. See Umited States v. Taylor, 693

F.2d 919 (9th Cir. 1982) (air traffic controller convicted

of participating in the PATCO strike on August 8, 1981) ;

PATCO v. F.L.R.A., 685 F.2d 547 (D. C. Cir. 1982) (hold-

ing that strike lasted until November 1981) ; United States

v. PATCO, 527 F. Supp. 1344 (N. D. Ill. 1981) (prelim-

inary injunction on November 11, 1981, restricting place

and manner of picketing by striking air traffic control-

lers); PATCO v. Federal Aviation Administration, 7 F.L.

R.A. No. 10 (Nov. 3, 1981) (supplemental opinion of Chair-

man noting PATCO had neither disavowed nor attempted

to end the strike as of November 3, 1981).

The evidence upon which Giannattasio relies does not

undermine the Board’s findings that the strike continued

until at least August 19, 1981. However government of-

ficials may have viewed the strike, the objective facts out-

lined above support the Board’s findings.

We hold that substantial evidence supports the

Board’s finding that the strike continued at the New York

Center at least until August 19, 1981. Our review function

thereupon ends.

Petitioners having made no attempt to rebut the fore-

going evidence before the Board, Adams’ brief suggests

before us that the sign-carrying picketers may not have

been striking controllers, but “just members of the public

merely exercising their first amendment rights.” The

argument is imaginative but without merit in light of all

the evidence.*

S An amicus in appeal No. 83-1156 chastises the Board for

taking “official notice’ that a nationwide strike continued

through August 6, 1981. The issue does not appear to have

been raised before the Board in any of the “lead” cases, by

way of petition for reconsideration or otherwise. Because,

also, the agency proved Baracco was on strike through August

(Continued on next page)

(5) Other Petitioners

Listed in Appendix B to this opinion are other peti-

tioners whose appeals were consolidated for decisional

purposes before the Board in MSPB Docket No. NY0752-

81F'0424 and who filed individual appeals under the num-

bers listed. The issues in those appeals appear to have

been considered and decided in this or another of the

decisions handed down by the court today. Petitioners

listed in Appendix B shall notify the court within 14 days

of th date of this opinion regarding their intent to with-

draw or further prosecute their appeals. Absent notifica-

tion within that period, the appeals listed in Appendix B

will be dismissed. See Asberry v. U. S. Postal Service,

692 F.2d 1378, 215 USPQ 921 (Fed. Cir. 1983).

DECISION

Accordingly, the Board’s decisions sustaining the re-

moval of petitioners in Appeal Nos. 83-1155 and 83-1156

are affirmed.

AFFIRMED

(Continued from previous page)

7, 1981, because Baracco made no effort to refute the facts

noticed, see Ohio Bell Tzlephone Co. v. Public Utility Com-

mission, 301 U.S. 292 (1937), and because the Board did not

deny petitioners their due process right to establish the non-

existence of a strike at their location or their nonparticipation

as strikers, the issue is inappropriately argued here.

Appendix A

Petitioner MSPB Docket No. Court Docket No.

Richard T. Adams NYO75281F0424)

)

Richard J. Bender NY075281 P0435)

)

Richard Bronleben N Y075281F0454)

)

Antonio Chevalier NY075281F0477) 83-1155

)

Thomas R. Connelly NY0752810486)

)

Thomas J. Contegni NY075281F 0488)

)

Gerard Curran N Y075281 0500)

)

James N. Frv NY075281 F0548)

)

Allen Giannatasio NY075281 F0556 )

Appendix B

Petitioner MSPB Docket No. Court Docket No.

Raymond Miller NY075281F0671 83-1159

Edward Rocks NY075281F 0748 83-1160

Wiliam Amodeo NY075281F0430 83-1162

Robert Biancamano NY075281F0439 83-1163

Bruee Bonaecum NYO75281F 0442 83-1164

John Brunner N YO75281 10457 83-1165

Richard Burns NY075281F0460 83-1166

Kenneth Carlstrom NYO75281F0469 83-1167

William Cecil NY075281 F0473 83-1168

Charles Contegni NYO75281F 0487 83-1169

Charles Darey N YO75281LF 0507 83-1170

Wayne linnis N Y075281F0531 83-1171

James Finnegan NY075281F 0538 83-1172

Gary Dawson NY075281 F0509 83-1176

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal No. 83-1155

RICHARD T. ADAMS, et al.,

Petitioners,

DEPARTMENT OF TRANSPORTATION, FAA,

Respondent.

Appeal No. 83-1156

GARY 8S. BARACCO,*

Petitioner,

DEPARTMENT OF TRANSPORTATION, FAA,

Respondent.

NIES, Circuit Judge, concurring.

I join in the majority opinion and write only because

I see a need for treatment of the issue of harmful error

to a greater extent than it has been given in note 3 of

the majority opinion.

The Baracco appeal is the lead case on interpretation

of the harmless error provision found in 5 U.S.C. $7701

(e)(2)(A) vis-a-vis the statutorily mandated time period

for reply to the notice of proposed removal. Baracco as-

serts that he was given only 6 days to reply, but for rea-

sons not discussed in the majority opinion or pertinent to

other controllers.

Baracecce was sent the same notice as other controllers.

Thus, under the majority decision here, he was initially

given a 7-day notice period. The notice was mailed August

7 by regular mail with a duplicate sent the same day by

certified mail. Since Baracco did not testify, we do not

know when he received the notice by regular mail which,

*Under Rule 43, Federal Rules of Appellate Procedure,

Marjorie F. Baracco, surviving spouse and personal represen-

tative of petitioner Gary S. Baracco (deceased), was substituted

as a party on motion.

if before receipt of the certified mail, would have started

the running of the reply period. In any event, he signed

for the certified mail on August 11. In an undated letter

from Baracco to the agency received August 14, he re-

quested an extension of time to file written reply on the

ground that “seven days” was not a reasonable time for

filing a response. At that time he knew he had 7 davs,

as the MSPB found. In reply, the agency denied “an ex-

tensio nof time to submit a written reply beyond the seven

day period.” Had the agency letter stopped there, Barac-

co would have no basis for argument that he is in a differ-

ent situation from others. However, in the same letter,

the agency stated that the written response was to be

submitted “prior to August 18, 1981, the expiration of the

seven day notice period.”

Treating this as arguably creating an ambiguity as

to the final date for reply, the presiding official ruled

that Baracco would have had to show, in any event, that

a 6-day reply period was barmful error, that is, that the

error might have affected the outcome of the case. Since

Baracco had made a written reply within 7 days and of-

fered no evidence at any time of individual circumstances

which might have changed the outcome, the presiding of-

ficial ruled that Baracco failed to show harmful error.

The board agreed that Baracco was required to show that

the asserted procedural error was harmful.

Baracco’s position is that harmful error should not

have entered into resolution of the issue of the shortened

notice period. Baracco maintains that his right to a min-

imum 7-day reply period, unquestionably required hy 5

U.S.C. § 7513(b) (2), rendered the action “not in accord-

ance with law” within the meaning of 5 U.S.C. § 7701(c)

(2) (C), set out below, and that, therefore, reversal is

required. In essence, Baracco argues that a statutory pro-

cedural requirement is not subject to the harmful error

provision of 5 U.S.C. § 7701(c) (2) (A). Stated another

way, violation of a statutory procedural requirement is

harmful per se.

The statutory provisions under consideration here

read in pertinent part:

7701(c) (2) [T]he agency’s decision may not be sus-

tained ...if the employee ...—

(A) shows harmful error in the application of

the agency’s procedures in arriving at such

decision.

* _ —

ance with law.

The MSPB carefully reviewed the statutory history

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

452, 92 Stat. 1111 (1978) (Reform Act) to discern the re-

lationship of these two provisions and found no clear

guide to their interpretation. However, it found direc-

tion, in favor of the presiding official’s ruling, in the nu-

merous expressions of concern during hearings on the

Reform Act about unnecessary procedural reversals of

agency actions.'

In rejecting Baracco’s argument, the board also found

guidance in the need to give effect to all parts of the

1 See Hearings Before the Senate Committee on Governmen-

tal Affairs on S. 2640, S. 2707 and S. 2830, 95th Cong. 2d Sess.

22, 43, 101, 146 (1978); Hearings Before the House Committee

on Post Office and Civil Service on H.R. 11280, 95th Cong.,

2d Sess. 31, 122-23 (1978).

statute. The board reasoned that procedural regulations

have the force of law and that, if the harmful error pro-

vision could not be applied in connection with procedures

established by statute, by the same token, it could not be

applied to procedures established by regulations which

have the force of law. Therefore, the statutory provision

on harmful error would be meaningless.

Tke board then reviewed and reconciled its own de-

cisions with its holding here, and, finally, found support

for its interpretation in precedent of this court, particu-

larly, Doyle v. Veterans Administration, 667 F.2d 70, 72

(Ct. Cl. 1981); Brewer v. U.S. Postal Service, 647 F.2d

1093, 1097 (Ct. Cl. 1981), cert. dented, 454 U.S. 1144 (1982)

and Shaw v. U.S. Postal Service, 697 F.2d 1078 (Fed. Cir.

1983). For example, as stated by Senior Judge Cowen

in Brewer, the first case reviewed by the Court of Claims

under the Reform Act:

In enacting the Civil Service Reform Act of 1978,

Congress declared that this court should reverse agen-

ey actions for procedural error “only if the proced-

ures followed substantially impaired the rights of the

employees.” S.Rep.No. 969, 95th Cong., 2d Sess. 64,

reprinted wm [1978] U.S. Code Cong. & Ad. News 2723,

2786.

647 F.2d at 1097.

In support of the contrary position, petitioner cites

cases, for example Ryder v. United States, 585 F.2d 482

(Ct. Cl. 1978) and Washington v. United States, 147 F.

Supp. 284, (Ct. Cl.) cert. denied, 355 U.S. 801 (1957), which

are clearly no longer controlling in view of the addition

to the statute of the harmful error provision.

Turning again to the precise language of the statute,

I conclude that paragraphs (A) and (C) are directed at

different evils. Harmful error in procedures (paragraph

A) raises the question: Did the wrongful procedure harm

the employee in the presentation of his defense so that a

different result might have been reached? Petitioner here

has not asserted such harm. He asks simply for a per se

rule. That is not a “showing” of harm as the statute re-

quires. Paragraph (C), on the other hand, is directed

to the decision itself. Was the decision in its entirety in

accordance with law? Since the harmful error rule is part

of the law, the question becomes: Is the decision in accord-

ance with the law including the harmful error provision?

Tested against this standard, the Baracco decision cannot

be reversed since no harmful error has been shown.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal No. 83-1175

BERNARD DORRANCE,

Petitioner,

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION,

Respondent.

DECIDED: May 18, 1984

Before MARKEY, Chief Judge, FRIEDMAN, RICH,

SMITH, and NIES, Circuit Judges.

RICH, Circuit Judge.

This appeal is from the April 25, 1983, decision of the

Merit Systems Protection Board (Board) sustaining the

removal of Bernard Dorrance from his position as Air

Tratfie Control Specialist by the Department of Trans-

portation’s Federal Aviation Administration (ageney).

The bases tor the removal were proven charges of striking

against the United States and absence without leave. We

affirm.

Background

Dorrance was employed as an air traffic controller

at the New York Air Route Traffic Control Center, Ron-

konkoma, New York. On August 3, 1981, the Professional

Air Traffic Controllers Organization (PATCO) ecom-

menced a nation-wide strike against the ageney. Dor-

rance failed to report for duty as scheduled at 3 p.m. on

August 3, 1981. By letter of August 6, the Chief of the

air traffie center notified Dorrance that he was charged

with striking against the United States Government and

with being absent from duty with authorization, and was

apprised of his proposed dismissal. In a letter of August

10, Dorrance requested an extension of time in which to

file a written response to the charges. By separate letter

on that date, he also requested certain material relevant

to the ageney’s proposed action, under the Freedom of

Information Act. A third letter by Dorrance on August

13 noted that “because of ambiguities in the notice and

the statutes that apply, I cannot deny or affirm the charges

at this time.”

The request for an extension of time was denied by

letter of August 12, and, by letter of August 19, the cen-

ter’s Chief, Louis C. Pol, dismissed Dorrance effective

August 22, 1981. Dorrance appealed to the Board and,

after a hearing, a Presiding Official sustained the agen-

ey’s removal, as did the Board on petition for review in

Adams et al. v. Department of Transportation (Docket

No. NY075281F0424, April 25, 1983). Dorrance did not

deny the charges against him at any stage of these pro-

ceedings, nor did he elect to testify during the hearing

before the Presiding Official.

More details concerning the air traffic controllers’

strike are set forth in related cases decided concurrently

herewith: Schapansky v. Department of Transportation,

No. 83-663 (Fed. Cir. May 18, 1984); and Adams v. De-

partment of Transportation, 83-1155 (Fed. Cir. May 18,

1984).

Issues

Dorrance challenges the agency’s removal action on

several grounds, principally, (1) the agency failed to meet

its burden of proof that he participated in a strike; (2)

the agency erred by invoking the “crime” provision of 5

U.S.C, 7513(b) to shorten the advance notice period ty

Dorrance before his dismissal; (3) that his removal does

not promote the efficiency of the service; and (4) that

the penalty of removal is grossly disproportionate to the

nature of the offense. Such issues were raised in Scha-

pansky, supra, and Dorrance’s appeal on these grounds

is rejected for the reasons set forth in Schapansky.

Dorrance further contends that (5) the Presiding

Official erred in drawing a negative inference from Dor-

rance’s failure to testify in his own behalf. This argu-

ment is unavailing. Silence added to the sufficiency of

the agency’s case when it follows the agency’s establish-

ment of a prima facie case, as discussed in our decision

in Adams, supra.

Additional arguments by Dorrance for reversal of

the Board’s decision are: (6) the Presiding Official im-

properly relied upon hearsay evidence, i.e., the Time and

Attendance Reports of the agency used to corroborate

Dorrance’s absence from work on August 3, 1981; (7) the

harmful effect of consolidating Dorrance’s case with those

of 63 other air traffic controllers before the Presiding

Official; (8) the harmful effect of the agency’s denial of

Dorrance’s request of August 10 for an extension of time;

(9) the violation of due process represented by alleged

“dilatory” tactics of both the agency and the Presiding

Official; and (10) that the agency prevented his return

to work.

OPINION

Initially, we note that our standard of review for

decisions of the Board is prescribed in 5 U.S.C. 7703(¢).!

The Presiding Official heard the testimony of Chief

Pol, and noted that he identified schedules, jogs, and time

and attendance records which documented, inter alia, the

1 5 U.S.C. 7703(c) provides in pertinent part:

Appeals for the Federal Circuit, the court review the rec-

ord and hold unlawful and set aside any agency action,

findings, or conclusions found to be—

(1) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

(2) obtained without procedures required by

law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence; .. .

absence of Dorrance commencing on August 3, 1981. Dor-

rance contends that the unsupported testimony of the

Center Chief is not sufficient to prove that he was strik-

ing, and that these various records are hearsay and also

ineffective because of evidentiary deficiencies such as a

lack of testimony as to their accuracy or the manner in

which they were made and maintained.

s explained in Schapansky, proof of a wide-spread

strike of general knowledge, together with Dorrance’s ab-

sence without authorization or explanation during the

strike constitutes at least a prima facie case of his par-

ticipation in the strike. Dorrance neither denied his ab-

sence nor the existence of a strike; nor does he argue that

he objected to Chief Pol’s testimony or documents relied

upon therein at the time of the hearing. The Board found

that the unrebutted testimony of Chief Pol was sufficient

to establish a prima facie case of striking. Furthermore,

the documents appear probative and would be competent

evidence though hearsay before the Board in any event.

See, e.g., Borinkhof v. Department of Justice, 5 MSPB

150, 153 (1981); and Brewer v. United States Postal Serv-

ice, 647 F.2d 1093, 1097-98 (Ct. Cl. 1. 381); cert. den., 454

U.S. 1144 (1982).

Dorrance next claims that the consolidation of his

case along with 63 “other appeals on one day” was harm-

ful error, and violated his due process rights to a fair

hearing. Dorrance admits that the Presiding Official has

2 5 U.S.C. 7701(c) (2) provides that the Board may not sustain

an agency decision “if the employee . . . (a) shows harmful

error in the application of the agency’s procedures in arriving

at such decision; ... .”

discretion to consolidate appeals under 5 U.S.C. 7701(f);

however, he contends that this consolidation “rendered the

hearing a sham” and “chilled and reduced his opportunity

as a matter of law, to introduce evidence in his own de-

fense.” This contention is at best disingenious because

Dorrance did not object to the consolidation until now,

and because he made no attempt to introduce evidence

in his own defense. The consolidated appeals involved

substantially the same issues and questions of fact and

the same counsel represented all of the appellants. Fur-

thermore, the one controller who did present an individual

defense, Mr. Copping, was singled out for separate treat-

ment in the Presiding Official’s decision. Dorrance has

not shown any harm to his opportunity to defend himself

nor that this consolidation was an abuse of the Presiding

Cfficial’s discretion.

The agency denied a request by Dorrance in his let-

ter of August 10, 1981, for an extension of the time in which

to respond to the charges set forth in Chief Pol’s letter

of August 6, 1981. This request was based on three rea-

sons: (1) the agency improperly decreased the statutory

thirty days advance notice of removal on the ground that

he had committed a crime; (2) even if the crime exception

is invoked, he is entitled to a reasonable time to reply

and the seven days granted was not reasonable; and (3)

he needed time to view materials that the agency reed

upon to support its proposed removal as well as other

documents requeste) under the Freedom of Information

Act (FOICA). ‘Phe first two contentions were rejected

in Schapansky and Adams, supra. In its letter of August

12, the agency rejected the request for extension but ad-

dressed only part of Dorrance’s third reason, noting that

the material requested under the FOIA had not been

relied upon by the agency for the proposed action.

On appeal here, Dorrance argues that extension re-

quests “should be liberally granted,” and that had “he

received the extension of time, he very well may have re-

plied to the proposed dismissal.” Dorrance thus contends

that lack of documents and lack of response time pre-

cluded an opportunity to make a meaningful response.

The Board ruled that the wording of the August 3 notice

of proposed dismissal did not lack sufficient particularity

as to the charges against him. We agree. See Anderson

v. Department of Transportation, No. 83-1153 (Fed. Cir.

May 18, 1984). Dorrance attributes harmful effect to this

denial, but he has not shown that the agency’s decision

precluded a meaningful response to the charges. The

mere allegation of harm is unpersuasive.

Dorrance contends that the agency engaged in dila-

tory tactics during the course of proceedings, including

failure to meet certain deadlines and to respond to cer-

tain of his motions and requests, and that this violated

his due process rights. Indeed, Dorrance moved for sanc-

tions against the agency, but these were not granted by

the Presiding Official. Dorrance contends that it was “a

gross perversion of justice for, on [the] one hand to hold

that petitioner could not have more than seven days to

respond to the charges; but on the other hand, to essen-

tially give respondent all the time it required....” The

Board held that. absent a showing that the Presiding Of-

ficial had abused his discretion, his determinations will

not be found to constitute reversible error. To be “harm-

ful error” necessitating our reversal of the Board, the

error must substantially impair an employee’s rights.

Brewer, supra; Shaw v. United States Postal Service, 697

F.2d 1078 (CAFC 1983).

The Board considered the special circumstances of

this strike in which approximately 11,000 related air traf-

fie controller “appeals can and should be recognized.”

Notwithstanding agency delays the Board concluded that

the Presiding Official’s management of the case and the

agencey’s conduct were not shown to have caused any “pre-

judicial harm to appellants’ presentation of their cases.”

On appeal to this court, Dorrance has demonstrated no

such harm to his rights, and we find no deprivation of due

process.

Finally, Dorranece urges reversal of the Board on the

ground that he was effectively “locked out” of the Air

Route Traffic Control Center and prevented from return-

ing to work. This contention is based both on an announce-

ment by Chief Pol over the public address system on Au-

gust 5, 1981, at 11 a.m., that any air traffic controllers then

outside the facility who wanted to report for work would

be escorted into the facility, and upon President Reagan’s

announcement, 48 hours earlier, that controllers who had

not reported for work within 48 hours would be fired.

Chief Pol testified that the gates were not locked at the

time of the announcement. The Bard found that, “Viewed

in a light most favorable to appe.iants, the most that can

be found from these circumstances is that anyone within

hearing distance of the announcement (which appellants

do not claim to have been) was specifically informed not

that he or she could not return to work, but rather that

he or she could.”

The Board also found that it was incumbent upon the

individuals removed from service to seek “any necessary

clarification” as to the actual time of the deadline for their

return to work. Additionally, the Board found that any

perceived futility in attempting to return to work did not

relieve them from attempting to contact the facility. The

Board’s holding that Chief Pol’s statements did not serve

to “lock out” Dorrance was supported by substantial evi-

dence.

Summary

We hold that the agency’s procedures were in accord-

ance with the law and that its actions and those of the

Presiding Official involved no error. Accordingly, for

reasons stated herein and in the related cases decided

today, the Board’s decision sustaining the August 22, 1981,

permanent removai of Dorrance by the agency from his

position as Air Traffic Control Specialist at the New York

Air Route Traffic Control Center is affirmed.

AFFIRMED

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal No. 83-1173

ROBERT L. CAMPBELL, et al.

Petitioners,

V8.

DEPARTMENT OF TRANSPORTATION; FEDERAL

AVIATION ADMINISTRATION

Respondents.

MOTION FOR PARTIAL REMAND

COMES NOW the above named petitioners, by and

through their attorneys, KARP, GOLDSTEIN & STERN,

and moves this court to enter its Order remanding, in

part, the instant appeal to an appropriate Administrative

Law Judge to conduct evidentiary hearings, as described

below, and as grounds therefore states the following.

1. Section 5, U.S.C. §1205(g¢) of the Civil Service

Reform Act of 1978, states that the Ment Systems Pro-

tection Board (hereinafter referred to as “Board”), shall

not issue advisory opinions.

2. On February 1, 1983, after having received infor-

mation regarding the existence of advisory opinions, Mr.

Rex B. Campbell, the former representative of the above

named petitioners (hereinafter referred to as “Representa-

tive Campbell”) filed a Freedom of Information Act re-

quest with the Denver Regional Office of the Board. In

response to this request, Mr. Jack B. Toll, Regional Direec-

tor of the Board, supplied Mr. Campbell with a number

of documents that had not been previously provided dur-

ing the course of the Pre-Hearing and Hearing proceed-

ings in the instant case. The documents in question con-

tain legal opinions regarding a number of the major issues

to be adjudicated in the former air traffic controller cases.

These legal opinions are preceeded by a cover memoran-

dum which describes these documents as “Advisory Opin-

ions from Office of General Counsel” (the Freedom of In-

formation Act response, the cover memorandum, and the

advisory opinions are attached hereto as Exhibit A). At

this point in time, the undersigned has no way of knowing

whether there are other documents or communications,

either written or oral, which could be described as “ad-

visory opinions” which were not contained in the response

to the aforementioned Freedom of Information Act re-

quest.

3. After receiving the above-described advisory opin-

ions, Mr. Campbell filed a motion with the Board entitled

“Violations of 5 U.S.C. $1205(g)”. (This motion is at-

tached hereto as Exhibit B).

4. At footnote 19 of its Opinion and Order in the

instant case, the Board states that the above-described

advisory opinions do not constitute a violation of 5 U.S.C.

§1205(¢). This aspect of the Board’s decision contained

a number of factual statements that the petitioners are

unable to evaluate or contest without the granting of this

Motion for Partial Remand.

5. The petitioners concede that the possibility exists

that the manner in which the attached advisory opinions

were created, distributed, and incorporated in specific

decisions does not violate either 5 U.S.C. §1205(g), or the

petitioners’ right to the due process of law. It is equally

possible, however, that the use of the advisory opinions

does constitute such a violation (See attached Memoran-

dum). It is clear, therefore, that this issue cannot be

fairly adjudicated and resolved without affording the

petitioners an opportunity to develop the record on this

point. This would require taking the testimony of Pre-

siding Official Skaggs; Jacqueline R. Bradiey, Assistant

Managing Director for Regional Operations who circu-

lated the advisory opinions; Evangeline W. Swift, who

authored the opinions; and, perhaps other Board em-

ployees who were involved in the decision to create and

SR mR nee een

distribute said opinions. The testimony would focus on

the circumstances surrounding the creation and distribu-

tion of the advisory opinions and their affect on Presiding

Official Skaggs and her interim decision in the instant

case.

6. With respect to the procedure to be employed in

connection with this Motion, petitioners would recommend

that this court retain jurisdiction of this appeal and re-

mand it, in part, to an Administrative Law Judge to con-

duct a hearing regarding the issues raised herein. It is

further recommended that an Administrative Law Judge

should be chosen who has had no connection to any of the

former air traffic controller cases.

7. It is the petitioners’ hope that the hearing pur-

suant to the partial remand could ke held as expeditiously

as possible and would not interfere with the briefing and

oral argument schedule to be imposed by this court.

WHEREFORE, the petitioners respectfully request

that this Court enter its Order remanding, in part, the

above captioned appeal, to the appropriate authority for

the scheduling and conducting of an evidentiary hearing

on the development, distribution, and use, of the attached

advisory opinions.

Respectfully submitted,

KARP, GOLDSTEIN & STERN

BY:/s/ Kenneth H. Stern

Attorney for Petitioners

1763 Franklin Street

Denver, Colorado 80218

(303) 861-8580

CERTIFICATE OF MAILING

I hereby certify that I have mailed a true and correct

copy of the foregoing Motion for Partial Remand by plac-

ing same in the United States mail this 6th day of July,

1983, postage pre-paid and properly addressed to:

Lorraine B. Halloway

Department of Justice

Civil Division, Commercial Litigation Branch

Washington, D.C. 20520

/s/ Naney Thienes

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal No. 83-1173

ROBERT L. CAMPBELL, et al.

Petitioners,

vs.

DEPARTMENT OF TRANSPORTATION; FEDERAL

AVIATION ADMINISTRATION

Respondents.

MEMORANDUM IN SUPPORT OF MOTION

FOR PARTIAL REMAND

COMES NOW the above named petitioners, by and

through their attorneys, KARP, GOLDSTEIN & STERN,

and submit the following memorandum in support of

their Motion for Partial Remand:

I. BACKGROUND

In October of that year, the U.S. Congress passed

the Civil Service Reform Act of 1978. The Act created

the Merit Systems Protection Board (hereinafter re-

ferred to as ‘‘Board”) to assume the adjudicatory fune-

tions that had previously been handled by the United

States Civil Service Commission. To a large extent, the

Board:

Emerges as an adjudicatory agency explicitly

established against preceived defects in the adjudi-

eatory functions of the Civil Service Commission.

Vaughn, The Opinions of the Merit Systems Protection

Board: A Study ia Administrative Adjudication, 24

AD.L.R. 25 (1980). See also Guttman, A Development

and Exercise of Appellate Powers in Adverse Action Ap-

peals, 19 A.M.U.L.R. 323 (1970); General Accounting Of-

fice, Design and Administration of the Civil Service Com-

mission’s Adverse Action and Appeals Systems Need to

be Improved, B-19810 (1970); Vaughn, The Spoiled Sys-

tem: a Call for Cwil Service Reform (1975). Even the

legislative history reflects Congress’ concern that an

adjudicative body be created that is above reproach

1978 U.S. Code Cong. and Adm. News pp. 2723, 2727-2729:

There is little doubt that a vigorous protector

of the Merit System is needed. The lack of ade-

quate protection was painfully obvious during the

Civil Service abuses only a few years ago.

Id. at 2729.

In recognition of the adjudicatory shortcomings of

the U.S. Civil Service Commission, Congress created, in

the form of the Board, a more formal, quasi-judicial

body that has been endowed with a high level of due

process rights. One aspect om this new, formal adju-

dicatory process was the explicit prohibition against

the issuance of advisory opinions. 5 U.S.C. §1208(g).

“I

In the Act, Congress commands the Board to promul-

gate regulations that are consistent with the concerns

and mandates contained therein. In conjunction with the

publication of their final rules, the Board underscores

this clear mandate from Congress. In response to a large

number of comments criticizing the Board’s proposed

rules as being “too legalistic’? the Board makes the fol-

lowing observation:

Based on a careful analysis of the legislative his-

tory of the Act, it is the Board’s position that Con-

gress intended it to function it as a quasi-judicial

agency and therefore it is essential that formalized

procedure be implemented to process cases. This is

particularly necessary given the Congressional man-

date that employees receive full due process rights

in the adjudication of their appeals. Accordingly,

it was necessary to set forth required standards and

procedures in some detail.

44 F.R. No. 127 at 3834 (June 19, 1979).

In promulgating its regulations, as mandated by stat-

ute, the Board created the office of “Presiding Official”.

Presiding Officials were intended to be independent hear-

ing officers who would conduct pre-hearing and hear-

ing proceedings, consider and make rulings regarding

evidence adduced at the time of hearing, and make in-

dependent determinations regarding the law and facts

to be applied in a given case. See 5 C.F.R. §§ 1201.4,

1201.41, and Weaver v. Department of Navy, 2 MSPB 297

(1980).

The Board, itself, has often underscored the necessity

for strong, independent presiding officials. In a recent

proceeding before the Federal Labor Relations Author-

ity, the Board filed a brief opposing a move by presiding

officials and attorneys in the General Counsel’s Office

and the Office of Appeals to form a single bargaining

unit. MSPB v. MSPB Prefessional Association, »o.

83-0103. In the Board’s brief in opposition to this move,

it makes the following strong policy statement:

While the agency recognizes that the proposed

unit employees do share common general personnel

policies and practices, the agency is also compelled

to establish and maintain the highest stendards of

integrity due to its role as an adjudicating body.

This principle clearly requires the agency to insulate

itself from the preception of an inherent conflict of

interest. The establishment of a regional system

with no review by the Board members prior to the

issuance of an initial decision, was designed to insti-

tutionalize the independence of presiding officials.

Id., MSPB Brief in Opposition (Emphasis added).

One leading commentator, in an important law re-

view article, discusses the significance of having presid-

ing officials conduct hearings as opposed to Administra-

tive Law Judges. In response to the suggestion that

presiding officials may be more suceptible to the abuses

found in the United States Civil Service Commission,

this commentator states the following:

Too much can be made of this distinction. The

Board benefits by insulating its presiding officials

from intervention of the Board in pending cases

other than through proper adjudicatory procedures.

The sense of independence given to presiding offi-

cials protects them and enhances the reputation of

the Board. The regulations of the Board limit the

involvement of officials of the Board other than

through review authority (Footnote omitted).

Vaughn, The Opinions of the Merit Systems Protection

Board: A Study in Administrative Adjudication, supra,

at p.40.

In accessing the impact of the issuauce of advisory

opinions in the instant case, it is imperative to con-

sider the administrative and legislative history leading

to the creation of the Board.

Il. THE EXISTENCE AND USE OF ADVISORY

OPINIONS IN THE INSTANT CASE

The case of Robert L. Campbell, et al., proceeded to

hearing, before Presiding Official Gayle E. Skaggs, on

May 19-21, 24-25, 1982. On August 7, 1982, Presiding Of-

ficial Skaggs rendered her initial decision in the Camp-

bell case.

On February 1, 1983, lay representative Rex B.

Campbell filed a Freedom of Information Act request

with the Denver Regional Office of the Board. In re-

sponse thereto, on February 3, 1983, Representative

Campbell received the cover memorandum and advisory

opinions which are attached as exhibits to the Motion for

Partial Remand.

In the first instance, the cover memorandum de-

scribes the attached documents as ‘‘advisory opinions

from Office of General Counsel’. A reading of said

documents indicates that this title is not a misnomar.

The Board, in its Order and Opinion in the instant case,

attempted to circumvent the prohibition contained in

5 U.S.C. §1205(¢) by stating that the opinions case from

the Office of the General Counsel. This distinction is a

matter of form over substance in that the Ofiice of Gen-

eral Counsel was created by and is part of the staff of

the Board. See 5 CFR 1200, et seg. The Office of Gen-

eral Counsel is not an independent agency but rather is

an arm of the Board.

LP we

The cover memorandum does contain a proviso that

“presiding officials are not obligated to adopt the an-

alysis and conclusions contained in the opinion’? (See Ex-

hibit A, of the Metion, emphasis added). One would have

to question the motivation for putting such a disclaimer

in the cover memorandum. Perhaps there was a con-

cern that the document would be made public and that

a great deal of controversy would flew from such a dis-

closure. Such an interpretation is given support by

the admonition that ‘‘this opinion should not be placed

in the record of any appeal’’ (See Exhibit A).

A comparison between the advisory opinions and the

decision in the instant case, as well as others, clearly

reflects the fact that the advisory opinions did influence

and were incorporated into the decisions of presiding

officials. Specifically, at a number of pertinent points,

the decision of Presiding Official Skaggs in this ease is

taken almost verbatim from the advisory opinions. For

example, see pages 52-56 of Skaggs’ Interim Decision as

compared with the advisory opinion dated April 21, 1982,

dealing with the proper penalty to be employed. See also

pages 48-49 of the same initial decision as compared with

the advisory opinion dated April 29, 1982 at page 5 with

respect to the Constitutionality of §7311.

Decisions by other presiding officials in the Denver

Regional confirm the impact of the advisory opinions

issued by the Board. Attached hereto as Exhibit A is a

copy of the interim decision in the case of Janet L. Apple,

et al, Case #DE075281F0653. The interim decision, is-

sued by Presiding Official Stephen L. Chaffin, aiso bor-

rows liberally from the advisory opinions. For example,

compare Apple’s initial decision pages 16-19 with April

21, 1982, advisory opinion regarding penalties. Also

compare initial decision pages 37-38 with advisory opin-

ion dated April 29, 1982, regarding the constitutionality of

§7311,.

The purpose of the discussion above is to establish

a prima facia case that the advisory opinions did affect

presiding officials generally and the outcome of the

instant case. A stronger, more comprehensive record

ean only be established through an evidentiary hearing

pursuant to the petitioners’ Motion for a Partial Remand.

Ul. CONCLUSION —

The arguments and documents contained in and at-

tached to the instant motion and memorandum clearly

demonstrates that advisory opinions were issued and did

have an impact on the interim decision rendered in Robert

L. Campbell, et al. The nature and degree of this im-

pact, as well as its legality, can only be resolved if the

case is partially remanded pursuant to the petitioners’

motion.

Respectfuily submitted,

KARP, GOLDSTEIN & STERN

BY: /s/ Kenneru H. Srern

Attorney for petitioners

1763 Franklin Street

Denver, Colorado 80218

(303) 861-8580

CERTIFICATE OF MAILING

I hereby certify that i have mailed a true and cor-

rect copy of the foregoing Motion in Support of Motion

for Partial Remand by placing same in the United States

mail this 6th day of July, 1983, postage pre-paid and

properly acdressed to:

Lorraine B. Halloway

Department of Justice

Civil Division, Commercial

Litigation Branch

Washington, D.C. 20530

/s/ Nancy Thienes

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.