Appendix — Darnell v. Department of Transportation
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Supreme Gout U.S.
No. ; | APR 30 1987
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“HOSEPH F. SPANIOL, JiR,
Cc:
IN THE suenenmannel
SUPREME COURT OF THE UNITED STATES
October Term, 1986
LINDA J. DARNELL (ROSE), et al.,
etitioners,
Vv.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
FOR THE FEDERAL CIRCUIT
Richard J. Leighton
Counsel of Record
1667 K Street, N.W.
Suite 801
Washington, D.C. 20006
(202) 955-3900
Counsel for Petitioners
LEIGHTON & REGNERY
Of Counsel
April, 1987
FP ic
TABLE OF CONTENTS
Page
APPENDIX A, Decisions Below.........la-70a
APPENDIX B, Judgments..........22--71a-80a
APPENDIX C, Rehearing and En Bane
Pas be aa ak eka hk eee a whe eee eee
APPENDIX D, MSPB Opinions and
S| a Pr ne rrr ees te TT
APPENDIX E, MSPB Presiding Official Deci-
SIONB. cccccscccsscsescecscesscccslseanmalie
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
- ry
Appeal No. 85-1578
MSPB Docket Nos. DC075281F1026 and
DC075281F1097
LINDA J. DARNELL (ROSE), ET AL.,
2 Petitioners,
V.
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION,
Respondent.
DECIDED: November 26, 1986
Before RICH and DAVIS, Circuit Judges, and
COWEN, Senior Circuit Judge
RICH, Cireuit Judge
This appeal is from the February 25,
1983, final decision of the Merit Systems
Protection Board (board), in Nos.
DC075281F1026 and DC075281F1097, sustain-
(la)
2a
ing the decisions of the Federal Aviation
Administration (FAA) to remove petitioners
Linda J. Darnell and Robert Martinkovic
from their positions as air traffie con-
trollers based on their participation in
the illegal strike called in 1981 by the
Professional Association of Air Traffic
Controllers (PATCO) and for being absent
without leave (AWOL) during the strike.
Oral argument was heard on April 28, 1986.
We affirm.
I. Background and Issue Presented
The background facts of the PATCO
strike are set forth in the “lead cases"
of this court in the air traffie control-
ler litigation. See Schapansky v. Depart-
ment of Transportation, Federal Aviation
Administration, 735 F.2d 477 (Fed. Cir.),
cert denied, 105 S.Ct. 432 (1984).
3a
Petitioner Robert Martinkovie was on
approved leave or regular days off from
sometime in July, 1981, through August 9,
1981. He was charged with striking and
being AWOL on August 10 after he failed to
report for duty on his deadline shift that
day.
Petitioner Linda J. Darnell (Linda J.
Rose at the time of these events) was
charged with striking and being AWOL from
August 4 to 6, 1981, in a notice of pro-
posed removal issued August 6, 1981.
Both petitioners replied in writing’/
to their notices of proposed removal with-
dé
3 These were identical “lawyer letters," obviously
provided by PATCO, appointing a Mr. Ferman of
PATCO to be their representative, and asserting
various demands and legal propositions under sta-
tutes and regulations. Petitioners simultaneously
signed and sent identical requests to FAA under the
Freedom of Information Act for multifarious kinds
of information and documents in three different
categories. See Dorrance v. DOT, FAA, 735 F.2d
516, 518 (Fed. Cir. 1984).
4a
in the proper seven-day period, notifying
their facility chief of their intent to
answer the charges in person, requesting
an opportunity to review the evidence on
which the charges were based and stating,
inter alia, that “there is no basis to the
charge that I have committed a crime for
which a sentence of imprisonment may be
imposed." Petitioners were removed before
these written replies were received. Upon
receipt, the agency reviewed the replies
and determined and advised petitioners
that they contained nothing to alter the
removal decisions.
Petitioners appealed to the MSPB urg-
ing reversal of their removal on various
technical grounds.
The broad issue presented by this
appeal is whether petitioners' constitu-
tional rights were abridged because the
5a
FAA did not give them "an explanation of
the employer's evidence and an opportunity
to present their side of the story” basing
their arguments on Cleveland Board of Edu-
cation v. Loudermill, 470 U.S. 532 (1985).
"Their side of the story" includes the
specific arguments made to the MSPB which
presumably would have been made to the
agency including adequacy of the notice of
proposed removal, failure of the FAA to
prove the strike was still going on when
they were AWOL, that the facility would
not have permitted petitioners to work if
they had tried, and the fact the FAA made
a mistake in sending out a form letter
saying they had made no reply.
II. OPINION
In Loudermill, the United States Sup-
reme Court stated that "[t]he opportunity
6a
to present reasons, either in person or in
writing, why proposed action [to remove a
public employee] should not be taken is a
fundamental due process requirement." 470
U.S. at 546. All that is required to meet
the essential requirements of due process
"are notice and an opportunity to reply.”
Id at 546. The August 6 and August 10,
1981, notices of proposed removal provided
petitioners with detailed reasons for the
adverse action and the location and the
person to contact for review of the
materials relied upon by the agency to
support the removal action. The notices
further stated that “you may reply to this
notice personally, in writing or both, and
furnish affidavits and other documentary
evidence in support of your answer to me,
within 7 calendar days after you receive
this letter."
7a
Hence, the agency clearly met the
first two parts of the tripart test set
forth in Loudermill. “The tenured public
employee is entitled to [1] oral or writ-
ten notice of the charges against him, [2]
an explanation of the employer's evidence,
and [3] an opportunity to present his side
of the story." Loudermill, 479 U.S. at
546. Implicit in the third part of the
test is that an opportunity be given an
employee to present his side of the story;
not a guarantee that the employee must
present his story to the agency prior to
removal. An opportunity to present is
quite ditferent from a presentation in
fact.
Both petitioners replied in writing
to these notices within the seven-day per-
iod. Unfortunately, the replies were not
received by the agency until after the
8a
expiration of the seven-day period and
after issuance of the removal letters.
However, the agency reviewed the replies
and determined and advised petitioners
that they contained nothing to alter the
removal decision. Hence the petitioners
were afforded an opportunity to present
their side of the story at the agency
level and any errors committed by _ the
agency were in the nature of procedural
errors and were not errors of constitu-
tional dimension.
In the context of criminal cases, the
Supreme Court has stated that the Consti-
tution entitles a criminal defendant to a
fair trial, not a perfect one. Delaware
v. Van Arsdall, No. 84-1279 (U.S., April
7, 1986), slip op. at 8; United States v.
Hasting, 461 U.S. 499, 508-09 (1983).
9a
Similarly, in the context of federal em-
ployee cases, the Supreme Court stated:
We do not believe that Congress
intended to force the Government
to retain these erring employees
solely in order to "penalize the
agency" for nonprejudicial proce-
dural mistakes it committed while
attempting to carry out the con-
gressional purpose of maintaining
an effective and efficient
Government.
Cornelius v. Nutt, 105 S. Ct. 2882, 2891
(1985) (citation and footnote omitted).
Title 5 of the U.S. Code, §7701(c¢)(2)(A)
provides specifically that the agency's
decision should be overturned only "if the
employee shows harmful error in the appli-
cation of the agency's procedures." 5 CFR
1201.56(¢)(3) defines “harmful error" as
error which. might have caused the agency
to reach a different conclusion than the
one reached Accord Cornelius v. Nutt,
supra.
10a
Petitioner's (sic) standardized PATCO
form "reply" to the agency's notice of
proposed removal stated merely that "there
is no basis to the charge that I have
committed a crime for which f sentence of
imprisonment may be imposed." Such a
response cannot suffice to overcome a
prima facie showing of strike participa-
tion. An unrebutted prima facie case of
strike participation amounts to proof of
the charges by a preponderance of the
evidence. Hale v. Department of Transpor-
tation, 772 F.2d 885 (Fed. Cir. 1985).
The initial replies filed by peti-
tioners in this case do not indicate that
petitioners could or would have presented
proof prior to the issuance of the removal
letters that could heve affected the FAA's
factual conclusion that both petitioners
participated in the = strike. Thus, the
lla
perhaps premature issuance of the removal
letters in the context of this case, where
the written replies by the petitioners
were considered by the agency after the
fact and do not on their face give any
indication that receipt of the replies
prior to issuance of the removal letters
could have affected the agency's underly-
ing factual conclusion, was’ harmless
error. Moreover, petitioners had a full
opportunity to present their additional
defenses at their de novo hearings before
the board. None of the defenses were leg-
ally sufficient, and none was a defense
which might invoke the discretion of the
agency's deciding officia’ not to remove
them. Thus, they were not denied "the
only meaningful opportunity to invoke the
discretion of the decision-maker."
Loudermill, 470 U.S. at 543. Accord Smith .
12a
v. U.S. Postal Service, 789 F.2d 1540
(Fed. Cir. 1986). The arguments in the
briefs before this court have all been
considered and none justifies any change
in the board decision.
III. Conelusion
Accordingly, the decision of the
board is affirmed.
AFF IRMED
l3a
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
Appeal No. 85-1578
MSPB Docket Nos. DC075281F1026 and
DC075281F1097
LINDA J. DARNELL (ROSE), ET AL.,
PETITIONERS
V.
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT.
COWEN, Senior Circuit Judge, dissenting.
I cannot agree with the court's deci-
sion. I believe that the crucial facts,
most of which are omitted from the opinion
of the majority, demonstrate that’ the
rights guaranteed to petitioners by the
Due Process Clause were violated, because
they were not granted a pretermination
hearing before they were discharged. A
a
14a
discussion of the constitutional rights to
which petitioners were entitled is set
forth in the recent decision of the
Supreme Court in Cleveland Board of Educa-
tion v. Loudermill, 470 U.S. 532 (1985).
I am convinced that in holding that the
denial of due process in this case was
harmless error, the majority failed to
follow the teaching of the Supreme Court
in that case.
I.
Most of the facts upon which I rely
are established by documentary evidence,
copies of which are included in the appen-
dix to this dissent. Except for immate-
rial differences in dates, the facts per-
tinent to the cases of both petitioners
are substantially identical, so that an
account of the facts pertaining to the
15a
claim of Linda J. Darnell will suffice for
both petitioners.
On August 7, 1981, petitioner Darnell
received a form letter (App. Exhibit 1)
from the Department of Transportation,
Federal Aviation Administration (FAA),
dated August §5, 1981, and signed by the
Facility Chief at Andrews Air Force Base
Control Tower, Camp Springs, Maryland.
The letter stated that the chief proposed
to terminate petitioner's position as an
air trafffie control specialist for parti-
cipation in an illegal strike ("a crime
for which a sentence and imprisonment can
be imposed"), and for being AWOL. The
letter gave notice that the material rel-
ied on to support the action was available
for review at the Control Tower, and stat-
ed that petitioner had a right, within 7
calendar days after receipt of the letter,
il
16a
to reply personally, in writing or both,
and furnish affidavits or other documen-
tary evidence in support of her answer.
The letter did not use the _ facility
address in Camp Spring, Maryland, as the
return address for the reply. Instead,
the return address shown on the notice was
the address of the Eastern Region of the
FAA in Jamaica, New York, hundreds of
miles away.
On August 11, 1981, petitioner res-
ponded to the notice by letter (App. Exhi-
bit 2), which was received in the Jamaica,
New York office of FAA on August 17, well
within the 7-day reply period. The reply
requested (1) an extension of time in
which to file a written answer to the
notice of proposed action; (2) copies of
the materials relied on to support her
proposed removal, and (3) an extension of
17a
20 days time after receipt of the mate-
rials to personally answer the charges.
The reply also stated: "There is no basis
to the charge that I have committed a
crime for which a sentence of imprisonment
may be imposed."
On August 11, 1981, petitioner sent a
written request (App. Exhibit 3) to the
Washington office of the FAA, under the
Freedom of Information Act, for. three
categories of information. The request
stated that the information was needed by
petitioner because of the disciplinary
proceeding that had been initiated against
her. She stated that if the charges for a
search and for the copies she needed covld
not be waived, she would pay reasonable
charges. The record before us does not
indicate that there was any response to
this request.
18a
Petitioner's reply to the charges,
timely received in the Jamaica, New York,
office on August 17, 1981, was not for-
warded to and received by the Camp Springs
facility until August 20, 1981. In the
meantime, by form letter (App. Exhibit 4)
dated August 18, 1981, signed by the Faci-
lity Chief, petitioner was notified of her
removal. The letter stated that the chief
had given full consideration to the fact
that petitioner had made no oral or writ-
ten reply, and that the evidence fully
supported the charges and warranted peti-
tioner's removal. The letter, referred to
herein as the initial decision, also show-
ed the Jumaica, New York address as the
return address for replies. Apparently
the chief had not seen and did not know
that petitioner had replied to the pro-
19a
posed action by letter to the New York
address.
On August 22, 1981, petitioner Robert
Martinkovie and another air traffie con-
troller delivered an unsigned letter (App.
Exhibit 5) to the Camp Springs Facility.
The letter stated that the responses to
the letters proposing the removal of
several air traffie controllers had not
been received at the facility, because of
the slow processing of the replies by the
Eastern Region of the FAA in Jamaica, New
York. In her handwritten note on this
letter, the chief stated that there would
be no response since the letter from
Martinkovie had been received after the
issuance of the initial decisions in which
petitioners were terminated.
iciteee eile
20a
After petitioner's initial reply of
August 11, 1981 had been forwarded to Camp
Springs from Jamaica, the Facility
Chief issued her final decision (App.
Exhibit 6) in a letter dated August 21,
1981. The letter stated that petitioner's
reply requesting additional time to res-
pond had been received, but that since the
request had not been received until after
the end of the 7-day period, the removal
decision of August 18 had been issued.
This letter further stated: “However, we
have carefully considered your request and
find no reason to alter our decision."
This letter, referred to herein as the
final decision of the Facili*y Chief, used
the Camp Springs, Maryland return address
2la
for the first time in the correspondence
between the parties. !/
In Loudermill, the Supreme Court pre-
scribed the minimum requirements of a pre-
termination hearing as follows:
The essential require-
ments of due process * * *
are notice and an opportunity
to respond. The opportunity
to present reasons, either in
person or in writing, why
proposed action should not be
taken is a fundamental due
process requirement. See
Friendly, “Some Kind of Hear-
ing,” 123 U.Pa.L.Rev. 1267,
1281 (1975). The tenured
public employee is entitled
to oral or written notice of
the charges against him, an
explanation of the employer's
evidence, and an opportunity
to present his side of the
story. See Arnett v. Ken-
L/ Petitioner Martinkovic's notice of proposed removal
was sent August 10 and received by him August 12.
His reply was sent August 14, and received at
Jamaica, New York August 18. It was received at
Camp Springs and rejected on August 25. The
removal notice was sent August 21 and received by
Martinkovic on August 25.
———E
22a
nedy, 416 U.S. at 170-171, 94
S.Ct., at 1652-1653 (opinion
of POWELL, J.) * * *.
(470 U.S. at 546.)
It is implicit in the Court's deci-
sion that the employee's constitutional
right to respond to a proposed dismissal
must be a meaningful opportunity and one
which receives the consideration of the
decision maker. That much is clear from
the Court's observation in Loudermill, as
follows:
Even where the facts are
clear, the appropriateness
or necessity of the dis-
charge may not be; in such
cases, the only meaningful
opportunity to invoke’ the
discretion of the decision-
maker is likely to be before
the termination takes ef-
fect.
(Id. at 543.)
When the quoted pronouncements of the
Supreme Court are applied to the facts of
this case, it is plain that each petition-
23a
er was denied "an opportunity to present
his side of the story" or to invoke the
discretion of the Facility Chief (the
decision maker) before being terminated.
Although the petitioners sent timely res-
ponses to the return address shown on the
notices, the Facility Chief terminated
them without seeing the responses in the
mistaken belief that they had made no oral
or written reply. The delay in the deci-
Sion maker's receipt of the replies wae
due to the slow processing of the replies
by the Eastern Region of the FAA and was
not the fault of petitioners.
As indicated above, petitioners' res-
ponses consisted almost entirely of
requests for extensions of time to answer
the charges with the aid of documents they
hoped to obtain, After their replies had
been forwarded from Jamaica, New York, to
24a
the Facility Chief, she should have rea-
lized that the letter terminating peti-
tioners had been erroneously issued. At
that time, she could have rescinded the
removal actions and granted petitioners’
requests to reply in person. Instead, the
Facility Chief denied the requests in a
decision, which I think was nothing more
than a perfunctory reiteration of her
erroneous conclusion that petitioners had
failed to submit oral or writtn replies
within the required 7-day period.
It is true that the final decision
contained the statement that after careful
consideration of petitioners' requests,
the chief had found no reason to alter the
decision terminating them. However, I
would hold that this statement did not
remedy the denial of due process. The
statement was part of a printed form (App.
25a
Exhibit 6), which had been prepared long
before, and when the final decision was
made, the chief did not have petitioners'
answers to the charges, -which they would
have submitted if the chief had rescinded
the removal actions and granted them an
oral hearing. Consequently, except for
petitioners’ assertions that they had not
committed a criminal offense, there was
nothing for the Facility Chief to consider
-- nothing to “invoke the discretion of
the decision maker" -- except the requests
for extensions of time. By that time,
petitioners had already been fired (App.
Exhibit 4) because of the chief's errone-
ous belief that they had not responded
within the 7-day period. Thus, all the
‘ Circumstances indicate that the final
decision was based mainly, if not entire-
ly, on that erroneous assumption.
26a
The net result of the documentary
evidence discussed above is that peti-
tioners were denied the minimum require-
ments of the due process to which they
were entitled under the holding in Louder-
mill.
tft.
Although the majority holds that the
denial of a pretermination hearing in
these cases was harmless error, it is my
opinion that the harmful error rule, which
is codified in 5 USC § 7701(¢c)(2)(A) and 5
CFR § 1201.56(¢)(3), does not apply to the
denial of due process in this case.
In the first place, the majority
bases its econelusions on Cornelius V\V.
Nutt, 105 S.Ct. 2882 (1985) and Smith v.
United States, 789 F.2d 1540 (Fed. Cir.
27a
1986) -- two decisions which are inappo-
In Nutt, the Supreme Court held that
the harmful error rule does not permit an
arbitrator to overturn agency disciplinary
action on the basis of a significant vio-
lation of the collective-bargaining agree-
ment that is harmful only to the union.
The Supreme Court also upheld the inter-
pretation by the Merit Systems Protection
Board that the rule requires the indivi-
dual employee to show error that causes
Substantial prejudice to his individual
rights. However, the constitutional issue
before us was in no way involved in Nutt.
It was never raised by the parties, nor
was it considered or even mentioned in the
Supreme Court's decision.
Smith v. United States is even less
pertinent. The controlling facts on which
|
28a
that decision was based do not bear even a
remote resemblance to the facts in this
case. In contrast to the facts before us
here, the court's decision in Smith shows
that his union representative made an oral
reply to the agency's deciding official,
and the court found that there was nothing
of record to indicate that Smith attempted
to present, or that he was prevented from
presenting, either an oral or a written
reply to the deciding official. The court
also found that Smith had failed to avail
himself of his statutory right to answer
orally, and that he made no effort to
obtain a Step 1 hearing at which he might
be present. The court concluded: "No
basis exists for Smith's assertion respec-
ting constitutional due process." 789
F.2d 1541-1542.
ME MN ner
29a
Secondly, the majority declares that
Since none of the defenses which peti-
tioners presented at the de novo hearing
before the Merit Systems Protection Board
was legally sufficient, the premature
issuance of the removal letters was harm-
less error which would not have affected
the agency's decision. The majority then
moves from this premise to the conclusion
that since petitioners did not prevail in
the MSPB hearing, none of petitioners'
defenses was a defense which might have
"invoked the discretion of the decision-
maker," In my opinion, these conclusions
ignore the teaching of Loudermill that the
tenured employee who is denied due process
is not required to establish that if he
had been granted a proper pretermination
hearing, his presentation would have met
with "certain success," Specifically, the
30a
Supreme Court stated that the employee's
"right to a hearing does not depend upon a
demonstration of certain success." Id. at
544.
For that proposition, the Supreme
court cited Carey v. Piphus, 435 U.S. 247,
266 (1978), in which the Court declared:
Because the right to proce-
dural due process is "“absolute"
in the sense that it does not
depend upon the merits of a
claimant's substantive asser-
tions, and because of the impor-
tance to organized society that
procedural due process be obser-
ved, see Boddie v. Connecticut,
401 U.S. 371, S¢3 CiSTi}s ANti-
Fascist Committee v. McGrath, 341
U.S. at 171-172 (Frankfurter, J.,
concurring), we believe that the
denial of procedural due process
should be actionable for nominal
damages without proof of actual
injury. (Emphasis supplied).
[Footnote omitted.]
IV.
For the reasons stated, I would
vacate the decision of the Merit Systems
=
3la
Protection Board and remand the case, with
instructions to the agency to restore
petitioners to their former positions and
to grant them back pay as provided by law.
32a
APPENDIX TO DISSENTING OPINION
Linda J. Darnell (Rose), et al.,
Petitioners
Department of Transportation
Federal Aviation Administration,
Respondent.
Appeal No. 85-1578
33a
APPENDIX TO DISSENTING OPINION
EXH. #1, page 1
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
EASTERN REGION
FEDERAL BUILDING
JOHN F. KENNEDY
INTERNATIONAL AIRPORT
JAMAICA, NEW YORK 11430
August 6, 1981
Linda J. Rose
3331 Huntley Square Drive, Tl
Temple Hills, MD 20748
Dear Ms. Rose
This is notice that I intend to remove you
from your position of Air Traffie Control
Specialist, GS-2152-9/01, $ 18,535 per
annum at the Andrews AFB Control Tower,
Camp Springs, MD. The reasons for the
proposed action are:
Reason 1: Violation of 5 U.S.C. 7311,
which states in pertinent part, "An
individual may not accept or hold a
34a
positin in the Government of the
United States ... if he... parti-
cipates in a strike against’ the
Government of the United States...";
and 18 U.S.C. 1918, which makes parti-
cipation in a strike against’ the
Government of the United States a
crime for which a sentence of impri-
sonment can be imposed.
Specification: Beginning at approxi-
mately 7 A.M. EDT, on August 3, 1981,
a nationwide strike by air traffie
controllers occurred. Beginning at
4:00 PM , on August 04 , 1981, when
you failed to report for duty, until
the present, you participated in a
strike against the United States
Government. .
35a
Reason 2: Unauthorized Absence
Specification: Beginning first at the
4:00 PM EDT to 12:00 AM EDT shift on
August 04 , 1981, you failed to report
for your scheduled tour of duty. On
August 903 , 1981, you were sent a
telegram that an illegal strike was in
progress, and that you must return to
duty for your regularly scheduled
shift. You failed to return to duty,
and instead remained absent without
authorization.
The materiai relied upon to support this
proposed action is available for review at
Andrews AFB Control Tower, Camp Springs,
MD , If you wish to review this
material, please contact Charlesan
Neugebauer
36a
APPENDIX TO DISSENTING OPINION
EXH. 1 - page 2
The foregoing action constitutes a strike
against the government prohibited by 18
U.S.C. 1918, and 5 U.S.C. 7311. This
gives me reasonable cause to believe you
have committed a crime for which a sen-
tence of imprisonment can be_ imposed.
Therefore, you may reply to this notice
personally, in writing or both, and fur-
nish affidavits and other documentary
evidence in support of your answer to me,
within 7 calendar days after you receive
this letter. In making a reply you have
the right to be represented by an attorney
or other representative. As soon as pos-
sible after your reply is received, or
after the expiration of the 7-day limit if
37a
you do not reply, I will issue a written
decision on the proposed removal.
s/Charlesan Neugebauer
Facility Chiet
Andrews Tower
In this space is.a copy In this space
of a postal receipt is a copy of
signed by Linda Rose the correspond-
on August 12, 1981 ing senders
receipt
38a
APPENDIX TO DISSENTING OPINION
EXH. 2
11 August 1981
Department of Transportation
Federal Aviation Administration
Eastern Region, Federal Building
John F. Kennedy International Airport
Jamaica, New York 11430
Re: Linda J. Rose
Dear Ms. Neugebauer:
This is to request an extension of time in
which to file a written answer to the
notice of proposed action against me for
the reasons stated below.
rirst, there is no basis to the charge
that I have committed a crime for which a
sentence of imprisonment may be imposed.
Therefore, the crime exception to the rule
set forth in 5 U.S.C. $§.7513, which
requires that I be given a thirty (30) day
advance notice of this proposed action, is
inapplicable.
39a
I also understand that even if the crime.
exception to the 30-day rule is invoked,
the controlling criterion is that I am
entitled to a "reasonable time," (which
may not be less than seven days) in which
to file my answer, 5 U.S.C. S$.7513(b)
(2). 1 do not feel that, under the cir-
cumstances that apply, seven days is a
reasonable time for filing a response.
I request that copies of all the materials
relied on by the FAA to support its pro-
posed action be sent to me. By separate
letter to the Freedom of _ Information
Office of the FAA, I am also requesting
disclosure of all notices of proposed
actions issued since January 1, 1978, and
between January 1, 1969, and January 1,
1971. As I am entitled to review all of
the materials relied on by the FAA to
Support its proposed action, see 5 C.F.R.
40a
5.752.404, I request that I be given at
least 20 days from the receipt of these
materials to answer personally the
‘charges.
I hereby designate Mr. Michael W. Fermon
as my representative in this proposed
action, Please send copies of all com-
munications in this action to:
Mr. Michael W. Fermon
Pr A.T.C.o,
1455 Veterans Highway
Hauppauge,- New York 11788
Sincerely,
s/Linda J. Rose
Linda J. Rose
_ 4la
APPENDIX TO DISSENTING OPINION
EXH. 3
11 August 1981
Freedom of Information Act Request
Freedom of Information Office (ATA-10)
Federal Aviation Administration
800 Independence Avenue, S.W.
Washington, D.C. 20591
To Whom It May Concern:
This is to request that the Federal Avia-
tion Administration make disclosure and
provide copies of certain materials avail-
able under the Freedom of Information Act,
5 U.S.C. Section 552, and the relevant
regulations of the agency.
Specifically, I request disclosure to me
of records held in any form that (a) docu-
ment adverse personnel action Serene
and final decisions by the FAA since
January 1, 1978, and from January 1, 1969,
through January 1, 1971; (b) indicate how
42a
FAA determines whether there is "reason-
able cause to believe that a erime for
which a sentence of imprisonment can be
imposed" has been committed, within the
meaning of 5 U.S.C. S.7511; (e¢) indicate
how FAA interprets the meaning of the
words "participates" and "strike" as found
in 5 U.S.C. S.7311(3) and the authority
for such interpretations.
The FAA has initiated disciplinary pro-
ceedings against me, and access to the
materials requested above is necessary for
me to prepare an adequate defense. If any
portion of this request is denied, I
request a detailed statement of the
reasons for the withholding and an index
or similar statement of the nature of the
documents withheld.
Pursuant to the Act, I request waiver of
all charges, but if waiver is denied, |!
43a
promise to pay reasonable charges incurred
for an appropriate search and copying of
these documents upon presentation of an
invoice along with the finished documents.
If search and copying fee will exceed
$25.00, please notify my representative,
Mr. Michael W. Fermon, or ~myself_ at
PsA. T.C.0., 1455 Veterans Highway,
Hauppauge, New York, 11788. You may not-
ify us whether this request will be grant-
ed at the address below. I would appreci-
ate hearing from you as soon as possible
so that I may begin to prepare my defense.
Thank you for your assistance.
Sincerely,
s/Linda J. Rose
Linda J. Rose
3331 Huntley Square Drive, Tl
Temple Hills, Md. 20748
44a
APPENDIX TO DISSENTING OPINION
EXH. 4
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
August 18, 1981 EASTERN REGION
FEDERAL BUILDING
JOHN F. KENNEDY
INTERNATIONAL AIRPORT
J/MAICA, NEW YORK 11430
Linda J. Rose
3331 Huntley Square Dr. Tl
Temple Hills, MD 20748
Dear Ms. Rose
My letter of August 6, 1981, informed you
of a proposal to remove you from your
position of Air Traffie Control Special-
ist, GS-2152-9/01 $18,585 per annum at the
Andrews AFB Control Tower, Camp Springs,
MD. I have given full consideration to
all the facts and circumstances in this
case including:
¢ j Your written reply of
4 Your oral reply of
45a
ee Your written reply of :
and/or oral reply of ;
to the designee, his summary and
recommendation.
(X) You made no oral or written
reply.
I have found that all reasons and specifi-
cations cited in the proposal letter are
fully supported by the evidence and war-
rant your removal to promote the efficien-
ey of the service. It is my decision,
therefore, that you be removed effective
August 22, 1981 __.
The enclosures with this letter explain
your rights to appeal or_ grieve this
action, and include an Appeal /Grievance
Procedure Addendum, the MSPB Appeal Form
and a copy of MSPB Regulations. In this
eonnection you should know that the FAA
has filed an Unfair Labor Practice (ULP)
46a
charge against PATCO for its role in the
Strike and is seeking to have the Union
decertified. The case is now being pro-
cessed by the Federal Labor Relations
Authority and a determination that PATCO
committed a ULP could impact on the pro-
cessing of grievances under the PATCO/FAA
agreement. If the Union is decertified
and the agreement terminated, this avenue
of appeal may not be available to you.
Sincerely,
s/Charlesan Neugebauer
CHARLESAN NEUGEBAUER
Chief,Andrews Tower
Enclosures
Ne ea Rag a
ry 8} mtn Oatian totebenw ae
47a
APPENDIX TO DISSENTING OPINION
EXH. 5
August 19, 1981
Charlesan Neugebaur, Chief
Andrews Air Force Base Control Tower
Camp Springs, Maryland
Dear Ms. Neugebaur;
Certain individuals have received letters
which indicate that your office failed to
receive a timely response to your "“pro-
posed dismissal" correspondence.
The following is a copy of the individuals
receipts with corresponding names as proof
that the letters were sent within the
seven day time parameter after receipt.
The answer to the delay problem is due to
slow processing in the Eastern Region of
the FAA.
The individuals involved plan to have any
future cerrespondence delivered by carrier
with a receipt requested.
48a
[the following is hand written]
Received August 22, 1981 by SATCS Chriz
Matiz. Delivered by David Noble and
Robert Martinkovie
I did not respond to the attached letter
as it was received after the decision
letter was mailed.
s/{Charlesan Neugebauer]
49a
APPENDIX TO DISSENTING OPINION
EXH. 6
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
DATE:
IN REPLY
REFER TO:
SUBJECT:
TO:
Airport Traffic
Control Tower
Andrews Air Force Base
Camp Springs, MD 20331
August 21, 1981
Linda Rose
Your letter dated August 11, 1981
requesting additional time in
which to respond to your notice
of intended removal issued August
7, 1981 was received in this
office on August 20, 1981.
Since substantially more than the
allowed seven days had expired
without any response from you, I
issued the decision letter on
August 18, 1981. The decision
50a
letter was forwarded to you by
first class and certified mail
August 18, 1981.
However, we have carefully con-
sidered your request and find no
reason to alter our decision.
The material relied upon to sup-
port the decision is available
for review at Andrews AFB Control
Tower, Camp Springs, Maryland.
If you wish to review this
material, please contact me.
s/Charlesan Neugebauer
CHARLESAN NEUGEBAUER
Chief, Andrews Tower
5la
Note: This opinion will not be published
in a printed volume because it does not
add significantly to the body of law and
is not of widespread legal interest. It
is a public record. It is not citable as
precedent. The decision will appear in
tables published periodically.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
CHARLES D. POLLEY, ET AL.,
Petitioners,
v.
DEPARTMENT OF TRANSPORTATION,
FAA,
Respondent.
Appeal No. 85-1742
MSPB Docket No. DC075281F1084
DECIDED: December 9, 1986
Before RICH and DAVIS Circuit Judges, and
COWEN, Senior Circuit Judge.
PER CURIAM.
DECISION
The decisions of the Merit Systems
Protection Board, affirming the peti-
52a
tioners' removal by the Federal Aviation
Administration, Department of Transporta-
tion, are affirmed.
OP INION
Counsel declined the invitation to
request oral argument. We have determined
on the basis of the briefs that oral argu-
ment will not be necessary because the
dispositive issue or set of issues has
been authoritatively decided, the facts
and legal argument are adequately present-
ed in the briefs and record, and the deci-
sional process would not be aided by oral
argument. Fed. R. App. P. 34(a).
This case, which involves two peti-
tioners, was adequately handled by the
presiding official. In this court they
primarily assert that the agency committed
harmful error in removing them. The pre-
siding official considered this very issue
93a
and determined that to the extent an error
was committed, it was not harmful. Peti-
tioners proffer mo adequate reason why
that determinatiom should be upset. The
Supreme Court decision in Cleveland Board
of Education v. Loudermill, 470 U.S. 532
(1985) did not give federal employees
constitutional rights not recognized
below. See Linda J. Darnell (Rose), et
al. v. Department of Transportation,
Appeal No. 85-1578, decided by this court
on November 26, 1986.
The decisions appealed from were not
arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with
law, were not obtained without procedures
required by law, rule, or regulation hav-
ing been followed, and were supported by
substantial evidence. 5 U.S.C. §7703(c)
(1982); see Hayes v. Department of the
24a
Navy, 727 F.2d¢ 1838, 1837 (Fed. Cir.
1984).
85-1742
95a
Note: This opinion will not be published
in a printed volume because it does not
add significantly to the body of law and
is not of widespread legal interest. It
is a public record. It is not citable as
precedent. The decision will appear in
tables published periodically.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
CHARLES D, POLLEY, ET AL.,
Petitioners,
v.
DEPARTMENT OF TRANSPORTATION,
FAA,
Respondent.
Appeal No. 85-1742
MSPB Docket No. DC075281F1084
COWEN, Senior Circuit Judge, dissenting.
To the extent that this case involves
the same issues that were decided November
26, 1986, in Linda J. Darnell (Rose), et
al. - Department. of Transportation,
Appeal No. 85-1578, I dissent for the
reasons stated in my dissenting opinion in
that case.
ee
56a
Note: This opinion will not be published
in a printed volume because it does not
add significantly to the body of law and
is not of widespread legal interest. It
is a public record. It is not citable as
precedent. The decision will appear in
tables published periodically.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
LEROY D. ALEXANDER,
Petitioner,
Vv.
DEPARTMENT OF TRANSPORTATION
FAA
Respondent.
Appeal No. 85-1738
MSPB Docket Nos. DC075282F1173 &
DC075281F1173
DECIDED: December 9, 1986
Before RICH and DAVIS Circuit Judges, and
COWEN, Senior Circuit Judge.
PER CURIAM.
Ns 0 Td hl i RIAN NAA
a
07a
DECISION
The decision of the Merit Systems
Protection Board, affirming the peti-
tioner's removal by the Federal Aviation
Administration, Department of Transporta-
tion, is affirmed.
OPINION
Counsel declined the invitation to
request oral argument. We have determined
on the basis of the briefs that oral argu-
ment will not be necessary because the
dispositive issue or set of issues has
been authoritatively decided, the facts
and legal argument are adequately present-
ed in the briefs and record, and the deci-
sional process would not be aided by oral
argument. Fed. R. App. P. 34(a).
Petitioner's case was adequately
dealt with by the presiding official and
the full Board. His version of events was
38a
permissibly found “patently ineredible,"
and it is settled that he was required to
make greater efforts to find out his dead-
line and whether he could return. See
Schapansky v. Department of Transporta-
tion, FAA,, 735 F.2d 477 (Fed. Cir.),
cert. denied, 105 S. Ct. 432 (1984);
Dorrance v. Department of Transportation,
FAA, 735 F.2d 516 (Fed. Cir.), cert. den-
ied, 105 S. Ct. 432 (1984); Adams v.
Department of Transportation, FAA, 735
F.2d 488 (Fed. Cir.), cert. denied, 105 S.
Ct. 432 (1984). In addition, the agency
did not harmfully err (in the cireum-
Stances here) in its efforts to give him
notice of the removal proceedings against
him. See Linda J. Darnell (Rose), et al.
v. Department of Transportation, Appel
No. 85-1578, decided by this court on
November 26, 1986.
99a
The decision appealed from was not
arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with
law, was not obtained without procedures
required by law, rule, or regulation hav-
ing been followed, and was supported by
substantial evidence. 5 U.S.C. §7703(c)
(1982); see Hayes v. Department of the
Navy, 727 F.2d 1535, 1537 (Fed. Cir.
1984).
85-1738
60a
Note: This opinion will not be published
in a printed volume because it does not
add significantly to the body of law and
is not of widespread legal interest. It
is a public record. It is not citable as
precedent. The decision will appear in
tables published periodically.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
LEROY D. ALEXANDER,
Petitioner,
Vv.
DEPARTMENT OF TRANSPORTATION
FAA
Respondent.
Appeal No. 85-1738
MSPB Docket Nos. DC075282F1173 &
DC075281F1173
COWEN, Senior Circuit Judge, dissenting.
To the extent that this case involves
the same issues that were decided November
26, 1986, in Linda J. Darnell (Rose), et
al. v. Department of Transportation,
Appeal No. 85-1578, I dissent for the
tO ee DS he
eee eee oe
6§la
reasons stated in my dissenting opinion in
that case.
62a
Note: This opinion will not be published
in a printed volume because it does not
add significantly to the body of law and
is not of widespread legal interest. It
is a publie record. It is not citable as
precedent. The decision will appear in
tables published periodically.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
PATRICK W. MecCORMACK,
Petitioner,
Vv.
DEPARTMENT OF TRANSPORTATION,
FAA,
Respondent.
Appeal No. 85-1763
MSPB Docket No. DC075281F1056
DECIDED: December 9, 1986
Before RICH and DAVIS Circuit Judges, and
COWEN, Senior Circuit Judge.
PER CURIAM.
DECISION
The decision of the Merit Systems
Protection Board, affirming the peti-
ee ee
63a
tioner's removal by the Federal Aviation
Administration, Department of Transporta-
tion, is affirmed.
OP INION
Counsel declined the invitation to
request oral argument. We have determined
on the basis of the briefs that oral argu-
ment will not be necessary because the
dispositive issue or set of issues has
been authoritatively decided, the facts
and legal argument are adequately present-
ed in the briefs and record, and the deci-
sional process would not be aided by oral
argument. Fed. R. App. P. 34(a).
We considered the arguments of
MeCormack based on Cleveland Board of
Education v. Loudermill, 470 U.S. 532
(1985), relating to an opportunity to be
heard against the identical factual situa-
tion in eonnection with other air econtrol-
64a
lers from the same facility (Andrews Air
Force Base Control Tower) and fully dis-
cussed them in a published opinion in
Linda J. Darnell (Rose) et al. v. Depart-
ment of Transportation (Appeal No. 85-
1578, decided November 26, 1986). We held
that none of the arguments would justify
any change in the board decision and we so
hold here.
This appeal otherwise raises no issue
not resolved in, and presents no fact
pattern which differs significantly from
that in Adams v. Department of Transporta-
tion, FAA, 735 F.2d 488 (Fed. Cir.), cert.
denied, 105 S. Ct. 432 (1984); Campbell v.
Department of Transportation, FAA, 735
F.2d 497 (Fed. Cir.), cert. denied, 105 S.
Ct. 247 (1984); and Novotny v. Department
of Transportation, FAA, 735 F.2d 521 (Fed.
Cir. 1984).
a Rt Rt
65a
The decision appealed from was not
arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with
law, was not obtained without procedures
required by law, rule, or regulation hav-
ing been followed, and was supported by
substantial evidence. 5 U.S.C. §7703(c)
(1982); see Hayes v. Department of the
Navy, 727 F.2d 1535, 1537 (Fed. Cir.
1984).
85-1763
66a
Note: This opinion will not be published
in a printed volume because it does not
add significantly to the body of law and
is not of widespread legal interest. It
is a publie record. It is not citable as
precedent. The decision will appear in
tables published periodically.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
PATRICK W. McCORMACK,
Petitioner,
Vv.
DEPARTMENT OF TRANSPORTATION,
FAA,
Respondent.
Appeal No. 85-1763
MSPB Docket No. DC075281F1056
COWEN, Senior Circuit Judge, dissenting.
To the extent that this case involves
the same issues that were decided November
26, 1986, in Linda J. Darnell (Rose), et
al. v. Department of Transportation,
Appeal No. SS-1578, Y dissent tor the
reasons stated in my dissenting opinion in
that case.
67a
Note: This opinion will not be published
in a printed volume because it does not
add significantly to the body of law and
- is not of widespread legal interest. It
is a public record. It is not citable as
precedent. The decision will appear in
tables published periodically.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
RICHARD E. SWAUGER,
Petitioner,
Ve
DEPARTMENT OF TRANSPORTATION,
FAA
Respondent.
Appeal No. 85-1752
MSPB Docket No. DC075281F1133
DECIDED: December 9, 1986
Before RICH and DAVIS, Circuit: Judges,
and COWEN, Senior Circuit Judge.
PER CURIAM.
DECISION
The decision of the Merit Systems
Protection Board, affirming the peti-
68a
tioner's- removal by the Federal Aviation
Administration, Department of Transporta-
tion, is affirmed.
OP INION
Counsel declined the invitation to
request oral argument. We have determined
on the basis of the briefs that oral argu-
ment will not be necessary because the
dispositive issue or set of issues has
been authoritatively decided, the facts
and legal argument are adequately present-
ed in the briefs and record, and the deci-
sional process would not be aided by oral
argument. Fed. R. App. p.34(a).
Petitioner's case was adequately
dealt with by the presiding official and
the full Board. His claim of emotional
incapacity was specifically considered.
We cannot say that the administrative
rejection of that claim was not grounded
Nl MI lit ot me rs ie
69a
in substantial evidence. Accordingly, we
must leave that finding and conclusion
undisturbed. On petitioner's claims that
his constitutional rights under Cleveland
Board of Education v. Loudermill, 470 U.S.
532 (1985), were violated, see this
eourt's recent decision in Linda J.
Darnell (Rose), et al. v. Department of
Transportation, Appeal No. 85-1578, decid-
ed November 26, 1986.
The decision appealed from was not
arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with
law, was not obtained without procedures
required by law, rule, or regulation hav-
ing been followed, and was supported by
substantial evidence. 5 U.S.C. §7703(c)
(1982); see Hayes v. Department of the
Navy, 727 F.2d 1535, 1537 (Fed. Cir.
1984).
70a
Note: This opinion will not be published
in a printed volume because it does not
add significantly to the body of law and
is not of widespread legal interest. It
is a publie record. It is not citable as
precedent. The decision will appear in
tables published periodically.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
RICHARD E. SWAUGER,
Petitioner,
V.
DEPARTMENT OF TRANSPORTATION,
FAA
Respondent.
Appeal No. 85-1752
MSPB Docket No. DC075281F1133
COWEN, Senior Circuit Judge, dissenting.
To the extent that this case involves
the same issues that were decided November
26, 1986, in Linda J. Darnell (Rose), et
al. V. Department of Transportation,
Appeal No. 85-1578, I dissent for the
reasons stated in my dissenting opinion in
that case.
EMA
7la
APPENDIX B
United States Court of Appeals
For The Federal Circuit
Appeal No. 85-1578
LINDA J. DARNELL (ROSE), ET AL.,
Petitioners
V.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
JUDGMENT
ON APPEAL from the Merit Systems Protec-
tion Board in CASE NO(S). MSPB Docket Nos.
DC075281F1026 and DC075281F1097. This
CAUSE having been heard and considered, it
is ORDERED and ADJUDGED:
AFFIRMED
ENTERED BY ORDER OF
THE COURT
Dated: Nov. 26, 1986
Franeis X. Gindhart,
Clerk .
72a
ISSUED AS A MANDATE: Jan. 16, 1987
COSTS: Against, Petitioner.
PRINTING: $81.12
TOTAL: $81.12
73a
United States Court Of Appeals
For The Federal Circuit
Appeal No. 85-1742
MSPB Docket No. DC075281F1084
CHARLES D. POLLEY, ET AL.,
Petitioners,
V.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
J UDGMENT
ON APPEAL from the Merit Systems Protec-
tion Board in CASE NO(S). MSPB Docket No.
DC075281F1084. This CAUSE having been
heard and considered, it is ORDERED and
ADJ UDGED:
AFF IRMED
ENTERED BY ORDER OF
THE COURT
Dated: Dec. 9, 1986
Francis X. Gindhart,
Clerk
74a
ISSUED AS A MANDATE: Feb. 12, 1987
COSTS: Against, Petitioner.
PRINTING: $74.72
TOTAL: $74.72
75a
United States Court Of Appeals
For The Federal Circuit
Appeal No. 85-1538
MSPB Docket Nos. DC075282F1173 &
DC075281F1173
LEROY D. ALEXANDER,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
JUDGMENT
ON APPEAL from the Merit Systems Protec-
tion Board in CASE NO(S). DC075282F1173
and DC075281F1173. This CAUSE having been
heard and considered, it is ORDERED and
ADJ UDGED:
AFFIRMED
ENTERED BY ORDER OF
THE COURT
Dated: Dec. $3, 1986
Francis %. Gindhart,
Clerk
76a
ISSUED AS A MANDATE: Feb. 12, 1987
COSTS: Against, Petitioner.
PRINTING: $101.60
TOTAL: $101.60
77a
United States Court Of Appeals
For The Federal Circuit
Appeal No. 85-1763
MSPB Docket No. DC075281F1056
PATRICK W. McCORMACK,
Petitioner,
Vv.
DEPARTMENT OF TRANSPORTATION,
FEDEXAL AVIATION ADMINISTRATION,
Respondent.
JUDGMENT
ON APPEAL from the Merit Systems Protec-
tion Board in CASE NO(S). MSPB Docket No.
DC075281F1056. This CAUSE having been
heard and considered, it is ORDERED and
ADJ UDGED:
AFF IRMED
ENTERED BY ORDER OF
THE COURT
Dated: Dec. 9, 1986
Francis %. Gindhart,
Clerk
78a
ISSUED AS A MANDATE: Feb. 12, 1987
COSTS: Against, Petitioner.
PRINTING: $82.40
TOTAL: $82.40
79a
United States Court Of Appeals
For The Federal Circuit
Appeal No. 85-1752
MSPB Docket No. DC075281F1133
RICHARD E. SWAUGER
Petitioner,
V.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
J UDGMENT
ON APPEAL from the Merit Systems Protec-
tion Board in CASE NO(S). DC075281F1133.
This CAUSE having been heard and
considered, it is ORDERED and ADJUDGED:
AFF IRMED
ENTERED BY ORDER OF
THE COURT
Dated: Dec. 9, 1986
Francis X. Gindhart,
Clerk
80a
ISSUED AS A MANDATE: Feb. 12, 1987
COSTS: Against, Petitioner.
PRINTING: $69.60
TOTAL: $69.60
8la
APPENDIX C
United States Court of Appeals
For The Federal Circuit
Appeal No. 85-1578
LINDA J. DARNELL (ROSE), ET AL.,
Petitioners,
V.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
Before RICH and DAVIS, Circuit Judges, and
COWEN, Senior Judge.
ORDER
A petition for rehearing having been
filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition rehearing
be, and the same hereby is, denied.
The suggestion for rehearing in bane
is under consideration.
Dec. 21,
1986
Date
ee: Mr. Richard J. Leighton
Ms.
Sandra P.
82a
FOR THE COURT
Franeis X. Gindhart,
Clerk
Spooner,
DOJ
83a
United States Court of Appeals
For The Federal Circuit
Appeal No. 85-1578
LINDA J. DARNELL (ROSE), ET AL.,
Petitioners,
V.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
ORDER
A suggestion for rehearing in bane
having been filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the suggestion for
rehearing in bane is declined.
FOR THE COURT
1-16-87
Date
Franeis X. Gindhart,
Clerk
ce: Mr. Richard J. Leighton
Ms. Sandra P. Spooner, DOJ
84a
United States Court of Appeals
For The Federal Circuit
Appeal No. 85-1742
CHARLES D. POLLEY, ET AL.,
Petitioners,
v.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
Before RICH and DAVIS, Circuit Judges, and
COWEN, Senior Circuit Judge.
ORDER
A petition for rehearing having been
filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for
rehearing be, and the same hereby is,
denied.
The suggestion for rehearing in bane
is under consideration.
85a
FOR THE COURT
2-53-87
Date Francis X. Gindhart,
Clerk
ec: Mr. Richard J. Leighton
Ms. Sandra P. Spooner, DOJ
86a
United States Court of Appeals
For The Federal Circuit
Appeal No. 85-1542
CHARLES D. POLLEY, ET AL.,
Petitioners,
V.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
ORDER
A suggestion for rehearing in bance
having been filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the suggestion for
rehearing in bane is declined.
FOR THE COURT
2-18-87
Date Franeis X. Gindhart,
Clerk
ee: Mr. Richard J. Leighton
Ms. Sandra P. Spooner, DOJ
|
87a
United States Court of Appeals
For The Federal Circuit
Appeal No. 85-1738
LEROY D. ALEXANDER,
Petitioner,
V.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
Before RICH and DAVIS, Circuit Judges, and
COWEN, Senior Circuit Judge.
ORDER
A petition for rehearing having been
filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for
rehearing be, and the same hereby, is
denied.
The suggestion for rehearing in bane
is under consideration.
88a
FOR THE COURT
2-5-87
Date Francis X. Gindhart,
Clerk
ee: Mr. Richard J. Leighton
Ms. Sandra P. Spooner, DOJ
89a
United States Court of Appeals
For The Federal Circuit
Appeal No. 85-1738
LEROY D. ALEXANDER,
Petitioner,
Vv.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
ORDER
A suggestion for rehearing in bane
having been filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the suggestion for
rehearing in bane is declined.
FOR THE COURT
2-18-87
Date Francis X. Gindhart,
Clerk
ec: Mr. Richard J. Leighton
Ms. Sandra P. Spooner, DOJ
90a
United States Court of Appeals
For The Federal Circuit
Appeal No. 85-1763
PATRICK W. MecCORMACK,
Petitioner,
Vv.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
Before RICH and DAVIS, Circuit Judges, and
COWEN, Senior Circuit Judge.
ORDER
A petition for rehearing having been
filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for
rehearing be, and the same hereby is,
denied.
The suggestion for rehearing in bane
is under consideration.
9la
FOR THE COURT
2-5-87
Date Francis X. Gindhart,
Clerk
ee: Mr. Richard J. Leighton
Ms. Sandra P. Spooner, DOJ
92a
United States Court of Appeals
For The Federal Circuit
Appeal No. 85-1763
PATRICK W. McCORMACK,
Petitioner,
Vv.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
ORDER
A suggestion for rehearing in bane
having been filed in this case, |
UPON CONSIDERATION THEREOF, it is
ORDERED that suggestion for rehearing
in bane is declined,
FOR THE COURT
2-18-87
Date Francis X. Gindhart,
Clerk
ce: Mr. Richard J. Leighton
Ms. Sandra P. Spooner, DOJ
a i
ee nt es al
93a
United States Court of Appeals
For The Federal Circuit
Appeal No. 85-1752
RICHARD E. SWAUGER,
Petitioenr,
Vv.
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION,
Respondent.
Before RICH and DAVIS, Circuit Judges, and
COWEN, Senior Circuit Judge.
ORDER
A petition for rehearing having been
filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED _ that the petition for
rehearing be, and the same hereby, is
denied.
The suggestion for rehearing in bane
is under consideration.
94a
FOR THE COURT
2-5-87
Date Francis X. Gindhart,
Clerk
ec: Mr. Richard J. Leighton
Ms. Sandra P. Spooner, DOJ
95a
United States Court of Appeals
For The Federal Circuit
Appeal No. 85-1752
RICHARD E. SWAUGER,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondent.
ORDER
A suggestion for rehearing in banc
having been filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that suggestion for rehearing
in bane is declined.
FOR THE COURT
2-18-87
Date Francis X. Gindhart,
Clerk
ee: Mr. Richard J. Leighton |
Ms. Sandra P. Spooner, DOJ
96a
APPENDIX D
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEROY D. ALEXANDER
RICHARD D. JONES
V.
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
Docket Number
DC075281F1173
DC075281F1174
ORDER
Appellants have petitioned for review
of the initial decision dated January 24,
1983, sustaining their removals from their
positions as Air Traffie Control Special-
ists at the Andrews Air Force air traffic
control facility. The agency based the
removal actions on charges of participat-
ing in a strike against the United States
Government in violation of 5 U.S.C. § 7311
and 18 U.S.C. § 1918, and unauthorized
97a
absence (AWOL).
Upon consideration of the appellants'
petition, we find that the legal issues
raised have been addressed and resolved by
the Board, »/ and that the presiding offi-
cial's findings as to those legal issues
*/With regard to the legal issues, the appellants’ petition
for review and the briefs submitted in support thereof are
identical to those addressed and resolved by the Board in
Bangerter v. Department of Transportation, MSPB Doc-
aaa
ket No. SL075281F0279 (September 27, 1983). Appellants
argue that they were denied the right to reply to the
agency's action because they did not receive either the
notice of proposed removal or the final notice of remov-
al. The record indicates that the agency sent the notices
of proposed removal and_final notices of removal by regu-
lar and certified mail to appellants’ last known addresses.
Appellants did not officially notify the agency of their
address changes, although appellant Jones told his former
supervisor, Andrew Ruth, that his address had changed in
late August or early September 1981. Neither appellant
had any contact with the agency, during or after the
strike, to ascertain their employment status. The presid-
ing official found that the agency's mailing of the notices
to appellants’ last known address was reasonable under
the circumstances and did not constitute error. A show-
ing of harmful procedural error requires the appellant to
show error by the agency in the application of its proce-
dures, and that, in the absence of cure of the error, the
agency might have reached a different result. 5 U.S.C. §
7701(e)(2)(A) and Logistics Agency, 1 MSPB 489 (1980).
Neither appellant has shown that the agency might have
reached a different conclusion.
98a
are essentially consistent with ours.
In addition, to the extent that the
arguments made in appellants' petition
relate to the presiding official's factual
determinations, we find that appellants
have not demonstrated any factual error by
the presiding official, based on specific
references to the record, sufficient to
warrant the Board's full review of the
record. See Weaver v. Department of the
Navy, 2 MSPB 297, 299 (1980).
Accordingly, the Board hereby DENIES
the appellants' petition for review for
failure to meet the criteria set forth at
5 C.F.R. § 1201.115.
This is the final order of the Merit
Systems Protection Board in this appeal.
The initial decision sustaining the appel-
lants' removals shall become final five
one
99a
(5) days from the date of this order. 5
C.F.R. § 1201.113(b).
Each appellant is hereby notified of
the right under 5 U.S.C. § 7703 to seek
judicial review of the Board's action by
filing a petition for review in the United
States Court of Appeals for the Federal
Circuit, 717 Madison Place, N.W.,
Washington, D.C. 20439. The petition for
judicial review must be received by the
Court no later than thirty (30) days after
the appellant's receipt of this order.
FOR THE BOARD:
SEP 30 1983 s/Robert E. Taylor
(Date) Robert E. Taylor
Washington, D.C. Secretary
100a
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICK W. MeCORMACK
v.
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
Docket Number
DC075281F1056
OPINION AND ORD®R
Appellant was removed from his posi-
tion of Air Traffic Controller Specialist,
Andrews Air Force Base, Camp Springs,
Maryland, based on charges of striking
against the United States Government, and
unauthorized absence. Appellant appealed
his removal to the Board's Washington,
D.C. Regional Office.
en en eee sae
Si eka oa See oe
l0la
In an initial decision, dated January
20, 1983, the presiding official found
that the agency had established a prima
facie case of strike participation, which
appellant had failed to rebut, inasmuch as
appellant had admitted that he was absent
without authorization on dates on which a
strike against the Federal Government was
in progress. The presiding official also
found that the appellant's reasons for his
absences failed to rebut the agency's
prima facie case. Therefore, he _ found
that the charges against the appellant had
been sustained by preponderant evidence,
and that removal was an appropriate penal-
ty. Accordingly, the agency's decision to
remove appellant was affirmed.
102a
appel-
In his petition for review, !/
lant contends that the presiding official
erred with regard to his findings related
to appellant's reasons for his absences;
that the initial decision does not contain
findings of fact, conclusions, or reasons
as to the issue of notice as it relates to
invocation of the crime exception; that he
was improperly suspended during the notice
period of his proposed removal; and that
the presiding official should have miti-
gated the agency imposed penalty, as it
was too harsh.
/ Appellant's petition for review appeared to have
been untimely filed and he was provided an oppor-
tunity to show good cause for waiver of the time
limitation for filing a petition for review. On
March 22, 1983, the Board found that inasmuch as
the appellant had shown that the petition for review
had been mailed prior to the date on which the
initial decision would have become sae, that it
would be deemed timely filed.
103a
With respect to appellant's first
contention, when a petition for review
challenges the factual findings of the
presiding official, it must establish that
the challenged factual determinations are
incorrect and identify specific evidence
in the record demonstrating error. Weaver
v. Department of the Navy, 2 MSPS 197, 299
(1980). Appellant has not identified any
specific evidence in the record indicating
error in the presiding official's factual
findings. Appellant's petition merely
reiterates arguments that were raised and
discussed below. Therefore, we find that
appellant has failed to establish any
basis for reversal of such findings. Id.
With respect to appellant's second
and third contentions of failure by the
presiding official to address the issues
of invocation of the crime exception and
104a
of improper suspension, we find that these
issues were not raised in his appeal
before the presiding official. The Board
has consistently held that it will not
consider arguments raised for the first
time in the petition for review, absent
new and material evidence that was
unavailable at the time the record was
closed. See, Epstein v. Department of
Health and Human Services, 6 “SPB 203
(1981). Therefore, we will decline to
give consideration to these contentions on
review.?/
2/ Even if his arguments were timelv raised below, we
would find no error by the agency in view of our
holdings in Schapansky v. D ment of T
tation, MSPB Docket No. DA075281F 1130 (Gctober
3S, 1982), and Martel v. D ment of Tr ta-
tion, MSPB Docket ® 0. BNOTSIBIFOSSS- (Apel 35;
1983).
_———
105a
In support of his final contention,
appellant argues that the combined and
related offenses of strike participation
and unauthorized absences are the only
offenses reflected in his otherwise exemp-
lary employment record, and that the sanc-
tion of removal should be mitigated. In
Schapansky v. Department of Transporta-
tion, MSPB Docket No. DAO75281F1130 at 11
(October 28, 1982), the Board reviewed
similar potentially mitigating elreun-
stances and found them to be insufficient
to warrant reduction of the removal penal-
ty. Threfore, the Board will not disturb
the removal penalty imposed by the agency
in this appeal.
Accordingly, the petition for review
is hereby DENIED. 5 C.F.R. § 1201.115.
This is the final order of the Merit
Systems Protection Board in this appeal.
106a
The initial decision shall become final
five (5) days from the date of this order.
5 C.F.R. § 1201.113(b).
Each appellant is hereby notified of
the right under 5 U.S.C. § 7703 to seek
judicial review of the Board's action by
filing a petition for review in the United
States Court of Appeals for the Federal
Circuit, 717 Madison Place, ae
Washington, D.C. 20439. The petition for
judicial review must be received by the
Court no later than thirty (30) days after
the appellant's receipt of this order.
FOR THE BOARD:
JUN 23 1983 s/Robert E. Tavlor
(Date) Robert E. Taylor
Washington, D.C. Secretary
107a
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD E. SWAUGER
v.
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
Docket Number
DC075281F1133
OPINION AND ORDER
Appellant was removed from his posi-
tion of Air Traffic Control Specialist at
the Washington Tower based upon charges of
participation in a strike against the
Government, and unauthorized absence. He
appealed the removal action to the Board's
Washington, D.C. Regional Office.
In an initial decision, the presiding
official sustained appellant's removal.
The presiding official found that the
108a
agency had shown by preponderant evidence
that appellant participated in a strike
and was absent without leave, and that
appellant failed to rebut this showing.
The presiding official also found that the
agency-imposed penalty of removal was
appropriate.
In his petition for review, appellant
contends that the agency failed to meet
its burden of proof since the evidence
demonstrates that he was too emotionally
disabled to work on the dates in question.
Appellant also contends that the agency:
failed to show that the removal penalty
was reasonable or that it would promote
the efficiency of the service; wrongfully
denied appellant the opportunity to make
an oral reply; and unlawfully suspended
appellant during the removal notice
period.
109a
Appellant asserts that the presiding
official erred in finding that the agency
established a prima facie case of his
participation in the strike. In Schapansky
v. Department of Transportation, MSPB
Docket No. DA075281F1130 at 6 n.2 (October
28, 1982),!/ the Board held that where the
existence of a strike is a matter of
general knowledge, the agency may estab-
lish a prima facie case of an appellant's
participation in the strike by presenting
evidence of his unauthorized absence from
duty during the strike. We find after a
review of the record that the presiding
official did not err in concluding that
appellant's failure to call in requesting
/ We reject appellant's contention that Schapansky
was incorrectly decided and should be reconsidered.
110a
leave on August 4 and the inconsistencies
in appellant's arguments were insufficient
to rebut the agency's case.
Appellant also argues that he _ has
rebutted the agency's prima facie showing
with evidence demonstrating that he was
too emotionally disabled to work on the
days for which his strike participation
and absence without leave are charged.
The evidence indicates that appellant was
spending many hours working on personnel
cases for two fellow controllers, in addi-
tion to his own duties as a controller,
during the summer of 1981. Appellant had
become emotionally involved in these cases
and his emotional condition was further
affected by his mother's serious illness.
Tr. at 44-45, 82, 93-94, 98-99. While
working on July 27, 1981, appellant was
involved in a "system err-r" which result-
lila
ed in a near collision of two aircraft on
intersecting runways. Tr. at 45-46.
Appellant stated that his emotional prob-
lems caused him to forget one of the air-
planes and that the accident was narrowly
avoided when his supervisor pointed out
the problem to him. Tr. at 98-100.
Appellant returned to work the next day
and continued working until his regular
days off on August 1 through August %,
1981. After completing the week, appel-
lant stated that he would not return to
work until he could concentrate fully.
Appellant, therefore requested leave
before departing work on July 31. This
request, owever, was denied. Appellant
again requested leave on one of his regu-
lar days off but this request was also
denied. During this time appellant decid-
ed that he could not return to work
112a
because he felt he would be dangerous in
the control tower. Tr. 100-102, lll.
Appellant, however, did not call the faci-
lity on or after August 4, his next sche-
duled work day, to request leave or
explain his absence because he presumed
his request for leave would be denied and
he would be told that he would be consi-
dered a striker if he did not report. Tr.
at 108.
The presiding official found appel-
lant's contentions unpersuasive for justi-
fying appellant's failure to report for
work as scheduled from August 4 through
August 6, 1981. The presiding official
first relied on appellant's failure to
call the facility during the strike to
explain his absence. Since appellant
previously requested leave, the presiding
official reasoned that appellant could
Ct at a Meili at ini ly: iit aha Cane Sa 4.
ll3a
have renewed this request during’ the
period of his absence. Initial Decision
at 3. Under similar circumstances, the
Board has refused to accept the assertion
that reporting illness and either request-
ing sick leave, or appearing for adminis-
trative duty, would be more likely to be
interpreted as strike support than would
an appellant's complete failure to report.
See Anderson v. Department of Transporta-
tion, MSPS Docket No. SL075281F0347 at 20
(April 25, 1983).
The presiding official also found
that appellant's appearance at the union
hall on August § or 7, 1981, to brief
controllers on their appeal rights was
inconsistent with his claim of emotional
disability. The presiding official found
that appellant's action indicated that
appellant was not as disabled as he con-
114a
tended he was. Initial Decision at 5-6.
The record also contains other examples of
logical inconsistencies which undermine
appellant's contention. Appellant testi-
fied that he reported to work after the
"system error" incident because he didn't
want to leave his team short-handed, yet
appellant failed to even phone the faci-
lity on August 4, when he knew the strike
was in progress and must have known that
the team would also be short-handed. Tr.
at 108-110. Further, appellant stated
that he did not report to work on August
4, because he felt he would be dangerous,
yet he also testified that August 4, was a
scheduled briefing day which did not
involve controlling traffic. Tr. at 111,
113. Thus, the record clearly supports
the presiding official's finding that
1l5a
appellant failed to rebut the agency's
prima facie case. 2/
Appellant contends that the combined
and related offenses of strike participa-
tion and unauthorized absence are the
first and only offenses reflected in his
otherwise exemplary employment record with
the agency and that the sanction of
removal is therefore excessively harsh and
should be mitigated. In Schapansky v.
Department of Transportation, MSPB Docket
No DA075281F1130 at 11 (October 28, 1982),
the Board reviewed similar potentially
mitigating circumstances and found them to
be insufficient to warrant reduction of
2/
Since appellant has failed to show that he was
emotionally incapacitated to perform his duties, his
contentions that he was wrongfully denied sick
leave under 5 C.F.R. § 630.401 and under the rele-
vant provision of the collective bargaining agree-
ment must be rejected.
1l6a
the removal penalty. Therefore, the Board
will not disturb the removal penalty
imposed by the agency in this appeal.
Appellant next contends’ that the
agency failed to show that appellant's
removal would promote the efficiency of
the service. In Schapansky, supra, at ll-
12, the Board found that the removal of an
air traffic controller for striking
against the Government promotes the effi-
ciency of the service as required under 5
C.F.R. § 7513(a), because of the clear and
direct relationship between such miscon-
duct and both the employee's ability to
accomplish his duties satisfactorily and
the agency ability to fulfill its mission.
Therefore, the Board _ § finds that the
removal of appellant in the present case
also promotes the efficiency of the ser-
vice.
eee
~aapeninomaes ;
A ek ee es esas
117a
Appellant next asserts that the pre-
siding official erred in sustaining the
removal because the agency denied appel-
lant an opportunity to be heard as requir-
ed under 5 U.S.C. § 7513. Appellant con-
tends that the agency's failure to do so
constituted action "not in accordance with
law," requiring reversal of the agency
action. In Baracco v. Department of Tran-
sportation, MSPB Docket No. DC075281F0895
at 11, 13 (April 25, 1983), the Board held
that the “harmful error” standard applies
to review of an agency's failure to comply
with a statutory procedure provided in 5
U.S.C. § 7513. Under this standard,
appellant must show by a preponcerance of
the evidence that the procedural error
likely had a harmful effect upon the out-
come of the adverse action before the
agency. See 5 C.F.R. § 1201.56(¢)(3).
118a
See also Parker v. Defense _ Logistics
Agency, 1 MSPB 489, 492-93 (1980).
The record in this case shows that
appellant has failed to meet this burden
of proof. The agency issued its notice of
proposed removal, which was signed by ap-
pellant's chief at the Washington tower,
on August 6, 1981. Appellant responded on
August 11, requesting an extension of
time. Appellant, however, sent this
request to the agency's regiomal offices
in New York rather than to the Washington
tower chief. Agency File Tabs 4 and 5.
While appellant's request was timely
received by the agency in New York, it was
not received by the Washington chief until
August 24. Since the chief had not heard
from appellant at the expiration of the
notice period, he issued the removal let-
ter on August 19. Upon receiving appel-
119a
lant's request, the tower chief issued
another letter informing appellant that
upon consideration of the request, the
agency found no reason to alter its deci-
sion of August 19. Agency File Tab 5.
These facts show that appellant, admitted-
ly experienced in personnel matters, con-
tributed to the confusion by sending his
request to New York, rather to his faci-
lity chief. Further, the agency has shown
that it considered appellant's request
when it was received by the appropriate
official. Thus, appellant has failed to
establish that the agency committed harm-
ful procedural error in denying his
request.
120a
Accordingly, appellant's petition for
review is hereby DENIED. 3/
This is the final order of the Merit
Systems Protection Board in this anpeal.
The initial decision shall become final
five (5) days from the date of this order.
5 C.F.R. § 1201.113(b).
The appellant is hereby notified of
the right under 5 U.S.C. § 7793 to seek
judicial review of the Board's action by
filing a petition for review in the United
States Court of Appeals for the Federal
Circuit, 717 Madison Place, N.W.,
3/ Appellant's contentions that the agency's proposed
removal improperly afforded him-less than seven
days to respond, and that he was in effect suspended
without procedural safeguards during the notice
period are without merit. Baracco v. Department
of Transportation, MSPB Docket No. DCO75261F08-
95 at 8-9 (April 25, 1983); Martel v. Department of
Transportration, MSPB Docket No. BNOTSSOIFOSSS.
at 6-7, 11-12 (April 25, 1983).
12la
Washington, D.C. 20439. The petition for
judicial review must be received by the
Court no later than thirty (30) days after
the appellant's receipt of this order.
FOR THE BOARD:
SEP 16 1983 s/Robert E. Tavlor
(Date) Robert E. Taylor
Washington, D.C, Secretary
122a
APPENDIX E
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WASHINGTON OFFICE
LINDA J. DARNELL (ROSE), ET AL.,
Ve
FEDERAL AVIATION ADMINISTRATION,
CASE NO(S). DC075281F1026 & DC075281F1097
DATE: January 21, 1983
”.
INTRODUCT IO™
Appellants filed appeals from the
agency's actions removing them from the
position of Air Traffie Control Special-
ist.
JURISDICTION
The actions appealed were effected
under subpart D of Part 752 of the Office
.
123a
of Personnel Management regulations, which
was promulgated pursuant to OP™'s author-
ity under 5 U.S.C. §7514. The record
reflects that appellants were covered
employees as defined by subpart D, and
were entitled to appeal these actions to
the Board. See 5 U.S.C. §§ 7511(a)(1)(A),
7512, 7513(d); S$ C.F.R. §§ 752.401(a),
752.401(b)(1), 752.405(a). I therefore
find that the appeals are properly before
the Board for adjudication.
ANALYSIS AND FINDINGS
The agency proposed appellants'
removals on the basis of two charges: (1)
participation in a strike against’ the
United States Government in violation of 5
U.S.C. § 7311 and 18 U.S.C. § 1918; and
(2) umauthorized absence. Both charges
stem from appellants' failure to report
124a
for duty on various dates in August of
1981.
The Board has taken official notice
of the fact that members of the Profes-
sional Air Traffic Controllers Organiza-
tion (PATCO) engaged in an illegal strike
against the Federal Government from August
3, 1981 through at least August 6, 1981.
Ketchem v. Department of Transportation,
MSPB Docket No. DA075281F0713 (5/28/82).
In addition, the Board has found that an
employee's unauthorized absence during the
period of such a strike may constitute a
prima facie case of said employee's parti-
cipation therein. Schapanksy v. Depart-
ment of Transportation, MSPB Docket No.
DA075281F1130 (10/28/82); Jones v.
Tennessee Valley Authority, MSPB Docket
No. AT07528010300 (2/19/82); Dueket and
Yardley v. Tennessee Valley Authority,
MSPB Docket No. AT07528010325 (2/19/82).
125a
Striking has been defined as_ the
"actual refusal in concert with others to
provide’ services to one's employer."
United Federation of Postal Clerks v.
Blount, 325 F. Supp. 879 (D.D.C.), affirm-
ed, 404 U.S. 802 (1971). In Ketchem,
supra at page 9, the Board stated that
where an employee is charged with partici-
pation in the PATCO strike “on dates sub-
sequent to August 6, 1981, the agency
bears the burden of proving by direct
evidence that a strike was in fact in
progress on the date charged, and that the
employee could have returned to work on
the date." In this regard, the agency
presented the testimony of an operations
specialist, as well as photographs of
picketers, and letters from Robert Poli,
then President of PATCO national, all of
which show that’ picketing and_ other
"Strike activities" continued to occur on
126a
and after August 10, 1981. In addition,
the Tower’ Chief testified that Mr.
Martinkovie would have been allowed to
return to duty on August 10, 1981, the
date of his “deadline shift" (the first
regularly scheduled shift after 11:00 a.m.
on August 5, 1981). With respect to Ms.
Rose, her proposal notice was issued on
August 6, 1981, and all of the dates
covered in the agency's charges. against
her fall within the period of official
notice cited above. I therefore find that
the agency has met its burden to show that
the strike was in existence at all times
relevant to the charges against’ both
employees.
In support of its charges, the agency
presented the testimony of the Tower
Chief, Ms. Charlesan Neugebauer, as well
as watch schedules and time and attendance
127a
records, to establish that each of the
appellants was absent without authoriza-
tion on one or more days during the
Strike, and that each failed to report fore
his or her “deadline shift". I find this
evidence to be sufficient to establish a
prima facie case of strike participation
with eas to each of the appellants.
In light of this finding, the burden of
persuasion now shifts to each appellant to
show that he or she "had no knowledge of
the existence of the strike or to demons-
trate that his [or her] absence was due to
some factor other than intentional partic-
ipation in the strike." Schapansky, supra
at 6. Mr. Martinkovie was on approved
annual leave or regular days off from
sometime in July of 1981 through August 9,
i9si. The agency's charges against him
deal only with his failure to report for
128a
duty at 3:54 p.m. on August 10, 1981. Mr.
Martinkovie testified that he was vaca-
tioning in Connecticut when the strike
began and that he heard President Reagan's
speech giving striking controllers 48
hours to return to duty or be fired. He
further testified that he did not report
to duty on August 10, 1981 naeaues he
believed that he had already been fired on
August 5, 1981 by virtue of his failure to
return to hie duty station. However, when
questioned regarding his thoughts upon
hearing ‘the President's August 3, 1981
speech, he testified that he wasn't wor-
ried because he was on approved annual
leave all —s This is in direct conflict
with his prior statement that he believed
that he had to report by August 5, 1981.
Moreover, when asked why, if he had any
doubts regarding his status that week, he
ee —‘(tSt™CisCWCOWw
129a
did not contact the facility to verify or
clarify said status, his response was "I
don't know". I also note that his written
reply contains no allegation that he was
fired on August 5, 1981, but rather sets
forth a totally different claim. In light
of his numerous conflicting statements, as
well as his evasive answers and demeanor
during cross examination, I find Mr.
Martinkovie to be ineredible. I therefore
find that his unauthorized absence on
August 10, 1981 was not due to any honest
belief that he had already been fired.
In his closing statement at the hear-
ing before me, Ms. Rose's representative
presented the argument that Ms. Rose did
not report for duty because there was an
armed guard at the door to the _ tower.
However, Ms. Rose raised no such allega-
tion in her reply to the proposal notice
1308
or in her appeal to the Board. Moreover,
She did not testify at the hearing, or
otherwise present evidence that the pre-
sence of a guard had anything to do with
her failure to report for duty on and
after August 4, 1981.
I find that the agency has estab-
lished a prima facie case of strike part-
icipation with respect to both of the
appellants, and that neither of them has
presented persuasive evidence in rebuttal.
The same evidence establishes that appel-
lants were absent without authorization,
as alleged. I therefore find that the
charges as set forth in -the proposai
notices are supported by a preponderance
of the evidence, and are sustained.
Appellants raise several procedural
arguments. In this regard, they bear the
burden of proving error by the agency in
l3la
the application of its procedures, and
that said error was harmful. § U.S.C.
§7701 (ec)(2)(A); 5 C.F.R. §1201.56(b)
(1). They must show that in the adsence
or eure of such error, the agency might
have reached a different conclusion. 5
C.F.R. §1201.56(c)(3); Parker _v. Defense
Logistics Agency, 1 MSPB 482 (1989).
Appellants allege that the agency's
decisions were driective in that they were
based upon appellants' failure to reply to
the proposal notices when, in fact, they
did submit written replies. In this
regard, both appellants mailed their writ-
ten replies to the agency's Regional
Office rather than to their facility. As
a result, the replies were not received by
the deciding official at the facility
until after she had issued the final deci-
sions. Each decision letter did note that
132a
the employee had made no written or oral
reply. However, I find that such state-
ment was not intented (sic) to, and in
fact did not, constitute an additional
"reason" for the decision or the action.
Moreover, the Tower Chief reviewed the
replies when they were finally received,
and determined that there was nothing in
them which would alter her decisions. I
agree. In the ‘absence of a likelihood
that the agency would have reached a dif-
ferent conclusion, any error with respect
to the late receipt of appellants’ replies
was harmless. Messersmith v. General
Services Administration, MSPR Docket No.
DC07528010253 (12/2/81).
Although not truly articulated in the
context of procedural error, Mr.
Martinkovie alleged that his proposal
notice was issued prior to the starting
~~ Ei ni he =
133a
time of his “deadline shift". In this
regard, appellant's representative sub-
mitted a copy of a receipt (Appellants
(sic) Ex. 1) for the mailing of the certi-
fied mail copy of appellant's proposal
notice which, although partially obscured
by a date stamp, appears to show & time of
"1410" or 2:10 p.m. However, Ms.
Neugebauer testified that the notice was
not in fact mailed until after appellant
had failed to appear for his shift at 3:54
p.m. In light of the lack of clarity of
the document, as well as Ms. Neugebauer's
testimony, I am not persuaded that the
notice was, in fact, mailed prior to the
start of the shift. Moreover, even assum-
ing that it was mailed early, appellant
did not receive it until August 12, 1981.
Its issuance therefore had no effect upon
appellant's ability or inelination to
134a
report for duty on August 10, 1981. I
therefore find that appellant could not
have been prejudiced by such a minimally
premature issuance, and any error in this
regard would have been harmless.
Unauthorized absence, by its very
nature, disrupts the efficiency of the
service. Chiaverini v. United States, 157
Ct. Cl. 371 (1962); Desiderio v. Depart-
ment of the Navy, 4 MSPB 171 (1980). As
cited by the agency, strike participation
by a Federal employee is violative of both
civil and criminal statutes. 5 U.S.C.
§7311(3) provides that an individual may
not hold a position in the Federal Govern-
ment if he participates in a strike. This
has been held to establish removal as the
mandatory penalty for strike participa-
tion. American Postal Workers Union v.
United States Postal Service, 628 F.2d
135a
1280 (9th Cir. 1982). In Schapansky,
supra, the Board did not answer the ques-
tion as to whether it had authority to
mitigate what appears to be a statutorily
mandated penalty. Rather, the Board found
that in light of the nature and gravity of
the offense of striking, as well as the
direct, deleterious effects such conduct
has on the efficiency of the _ service,
mitigation of the penalty would not be
warranted under the standards set forth in
Deuglas v. Veterans Administration, MSPB
Docket No. AT075299006 (4/10/81). I
therefore find that the agency's penalty
selections in these cases were both rea-
sonable and appropriate.
In summary, I find that the agency
effected appellants' removals for. such
cause as will promote the efficiency of
the services. 5 U.S.C. §7513(a).
13fa
DECISION
The agency's actions are_ hereby
affirmed.
NOTICE
This is an initial decision and will
become a final decision of the Merit
Systems Protection Board on February 25,
1983 unless a petition for review is filed
with the Board.
Any petition for review must be filed
with the Board within thirty-five (35)
calendar days after the issuance of this
decision.
Any party to this appeal, the Direc-
tor of the Office of Personnel Management
(OPM) and the Special Counsel may file a
petition for review of this decision with
the Merit Systems Protection Board. The
Director may request review only if he or
137a
she is of the opinion that the decision is
erroneous and will have a_e substantial
impact on any civil service law, rule or
regulation under the jurisdiction of OPM.
5 U.S.C. §7701(e)(2). The petition must
specifically identify the exception taken
to this decision, cite the basis for
exception, and refer to applicable law,
rule or regulation.
The petition for review must be filed
with the Office of the Secretary, Merit
Systems Protection Board, Washington, D.C.
20419 no later than thirty-five (35) cal-
endar days after issuance of this deci-
sion. If a petition for review is filed,
an informational copy of it should be for-
warded to this office.
The Board may grant a petition for
review when a party submits written argu-
138a
ment and supporting documentation which
tends to show that:
(1)New and material
evidence is available
that despite due dili-
gence was not available
when the record’ was
closed; or
(2)The decision of the
presiding official is
based upon an erroneous
interpretation of
statute or regulation,
Under 5 U.S.C. §7703(b)(1)*/, an
appellant has the right to seek judicial
review of the Board's final decision in
this appeal. A petition requesting such
review must be filed with the United
States Court of Appeals for the Federal
Circuit no later than 30 days after appel-
lant's receipt of the Board's final order
or decision.
*/ As modified by §127 of the Federal Court
Improvement Act of 1982, to be codified at 28
U.S.C. §1295(a) (9).
For the Board:
139a
s/Joseph E. Clancy
Joseph E. Clancy
Presiding Official
140a
UNITED STATES OF AMERCIA
MERIT SYSTEMS PROTECTION BOARD
WASHINGTON REGIONAL OFFICE
DAVID F. GARDNER
WILLIAM HILDEBRAND
CHARLES D. POLLEY
DONALD T. SHANKLE
GARY W. SOULIER
Vv.
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION,
CASE NOS. DC075281F0965,
DC075281F0988, DC075281F1084,
DC075281F1107, DCO75281F1119
DATE: January 13, 1983
INTRODUCTION
The appellants filed appeals!/ from
action taken by the Federal Aviation
1/
Appellants Gardner, Hildebrand, Poliey, Shankle,
and Soulier filed appeals on September 10, 15, 14,
15, and 10, 1981, respectively.
l4la
Administration removing them from their
positions of Air Traffie Control Special-
ists for their involvement in a strike
against the Government of the United
States and for absence without leave
(AWOL).
JURISDICTION
Section 7513 (d) and 7701 (a) of
Title 5 U.S.C., permit employees to appeal
to the Board from agency action involving
a removal. I find that the appellants
held positions in the competitive service
at the time the agency proposed their
removal and that they were not serving a
probationary period. I find, therefore,
that these appeals are properly before the
Board. 5 U.S.C. Section 7511 (a).
142a
BACKGROUND” /
Mr. Harry Te Hubbard, Chief,
Washington Tower (Washington National
Airport), advised the appellants on vari-
ous days in August, 1981, that he was
proposing their removal from their posi-
tions of Air Traffie Control Specialists
for two reasons. The first involved an
alleged violation of 5 U.S.C 7311, which
provides that "fa)n individual may not
accept or hold a position in the Govern-
2/ These appeals were initially consolidated for hear-
ing and styled as Richard W. Swauger, et al. At
that time, I expected to provide the appellants’
individual opinions on their appeals. However, since
none of the appellants testified and since the issue
raised by them in their written submissions and
through the representations of their representative
are identical, it would serve no useful purpose to
provide individual opinions. Therefore, I am con-
solidating these appeals for purposes of a decision
thereon, except for an opinion in the case of
Richard E. Swauger which will be issued separately.
In this connection, transcripts of the hearing are
listed under the name of appellant Swauger.
‘ .
143a
ment of the United States ... if he
participates in a strike . . . against
the Government of the United States."
Section 1918 of Title 18, U.S.C., was also
cited and the appellants were also told
that it makes participation in a strike
against the United States a crime for
which "a sentence of imprisonment can be
imposed." The appellants were told that
"(b)eginning at approximately 7 a.m.
on- August 3, 1981, a nationwide strike
by air traffie controllers occurred" and
that beginning on August 3, 1981, for
appellants Polley, Soulier, and Shankle,
and beginning on August 4, 1981, for
appellants Gardner and Hildebrand, "when
[they] failed to report for duty, until
the present, [they] participated in a
strike against the United States Govern-
ment." The second reason for appellants'
144a
removal involved an alleged unauthorized
absence. The notice continued that the
appellants failed to report for their
scheduled tour of duty commencing on the
days indicated supra. The appellants were
reminded that they were sent a telegram on
August 3, 1981 advising them “that an
illegal strike was in progress, and that
[they] must return to duty for [their]
regularly scheduled shift." The notice
concluded that the appellants failed to
return to duty and “instead remained
absent without authorization.
After setting forth the foregoing
facts, Mr. Hubbard concluded that he had
reasonable cause to believe that the
appellants had committed a crime for which
a sentence of imprisonment could be impos-
ed and that he, accordingly, was affording
them an opportunity to "reply to this
cei aceaataiiaceaaiaacaiaiaaiiaaa
145a
notice personally, in writing, or both,
and furnish affidavits and other documen-
tary evidence in support of [their] answer
- « «, Within seven calendar days after
[they] receivel[d) this letter."
On August 11, 1981, the appellants,
in response to Mr. Hubbard's notice of
proposed removal, wrote Mr. Hubbard at the
Eastern Regional Office of the Federal
Aviation Administretion, Jamaica, New
York, rather than to the Washington
National Airport office, to request an
extension of time for filing a written
answer.>/ The appellants went on to state
that they considered no basis existed for
the charge that they committed a crime for
3/ I note that appellant Shankle's letter requesting an
extension is not dated. However, the notation
"8/22/81, 10:30 a.m." is indicated in the top right
hand corner.
146a
which a sentence of imprisonment could be
imposed. Consequently, the appellants
argued, the agency was required to afford
appellants a reasonable period of time
within which to respond.
Additionally, by separate letter also
dated August 11, 1981, the appellants
filed a Freedom of Information Act request
seeking to have the agency disclose cer-
tain documents relating to its conclusions
in the notice of proposed removal and
without which the appellants represented
they could not properly defend the action.
In each instance, appellants' letter
were received by Mr. Hubbard after he
issued final notices removing them from
147a
their positions. 4/ On the same day that
he received the letters, Mr.Hubbards den-
ied appellants' request for an extension
of time, stating that any response to the
notice of proposed removal had to be made
in accordance therewith.
By letters dated as previously indi-
cated, >/ Mr. Hubbard advised the appel-
lants that he [Mr. Hubbard] found "all
reasons and specifications cited in the
proposal letter" supported by the evi-
4/ Appellants Gardner's letter was received on August
20, three days after his decision notice dated
August 17; appellant Hildebrand'’s letter was
received on August 24, five days after his decision
notice dated August 19; appellant Polley's letter
was received on August 21, two days after his
decision notice dated August 19; appellant Shankle's
letter was received on August 24, six days after his
decision notice dated August 18; and appellant
Soulier's letter was received on August 21, four days
after his decision notice dated August 17.
5/ td,
148a
dence, thus warranting appellants' removal
from their positions to promote the effi-
ciency of the service. In so doing, Mr.
Hubbard advised the appellants that they
"made no oral or written reply" to the
notice of proposed removal. These appeals
followed.
ANALYSIS AND FINDINGS
In order for the agency decision
removing the appellants to be sustained on
appeal to the Board, the agency must
demonstrate that the action is supported
by a preponderance of the evidence. 5
U.S.C. 7701 (¢) (1) (B); 5 C.F.R. 1201.56
(a) (ii). The Board's regulations define
the phrase "preponderance of the evidence"
to mean “that degree of relevant evidence
which a reasonable mind, considering the
record as a whole, might accept as suffi-
149a
cient to support a conclusion that the
matter asserted is more likely to be true
than not true." § C.F.R. 1201.56 (c)
(2). In Ketchem v. Department of Trans-
portation, MSPB Docket No. DA075281F0713
(May 28, 1982), the Board found, and took
official notice of the fact, that the
Professional Air Traffic Controllers
Organization (hereinafter referred to as
PATCO) called for an unlawful strike by
air traffic controllers and that’ such
strike “commenced on August 3, 1981, and
was still in progress on August 6, 1981,"
Id., at 9. Since the appellants presented
no evidence to refute this finding, I,
too, will take official notice that the
PATCO strike commenced on August 3, and
continued, at least, through August 6,
1981.
150a
In the foregoing connection, I find
that the President gave the striking con-
trollers a 48-hour grace period commencing
ll a.m., August 3, 1981, to return to
their jobs. See 17 Weekly Comp. Pres.
Doc. 845 (1981). I further find that the
agency, in implementing President Reagan's
ultimatum to return to work, interpreted
the President's directive to mean that
striking controllers could report to work
on their first scheduled shift after the
expiration of the 48-hour grace period.
See United States v. PATCO, 524 F. Supp.
160, 164 (D.D.C. 1981).
I find that appellants' deadline date
fell within the official notice period,
except for appellant Polley whose deadline
was August 7, 1981, 6:48 a.m. With res-
pect to appellant Polley, the Board stated
in Ketchum, supra, that "where an employee
l5la
like the appellant is charged with parti-
cipation in a strike on dates subsequent
to August 6, 1981, the agency bears the
burden of proving by direct evidence that
a strike was in fact in progress on the
date charged, and that the appellant could
have returned to work on that date.
Ketchum v. Department of Transportation,
MSPB Docket No. DA075281F0713, p. 9.
Mr. Hubbard testified that the condi-
tions existing at his facility on August
3, 1981, continued through August 7, and
well beyond that date. Specifically, Mr.
Hubbard testified that he arrived at his
facility early on the morning of August 3,
and observed controllers milling about.
Mr. Hubbard continued that, since he had
been advised of the possibility of a PATCO
strike, he had developed a contingency
Dlan, which ineluded, inter alia, the
152a
utilization of operational team supervi-
sors as controllers, keeping supervisors
on overtime and reducing air traffic. Mr.
Hubbard added that his staff handled 50%
to 60% of normal air traffic on August 3,
1981. The contingency plan also included
the imposition of 24 hour police guards
and requiring individuals entering the
control tower to display ID cards.
Mr. Hubbard further testified that he
observed picketing on August 4, 1981, by
individuals, some of whom he recognized as
his controllers. The picketing, continued
Mr. Hubbard, occurred on Jefferson Davis
Highway, commonly referred to as U.S.
Route 1, near an access ramp to the air-
port.
The agency also submitted documentary
evidence in support of its view that the
PATCO strike was in progress on August 7,
153a
1981. Ineluded therein were two documents
titled "Presidential Update," dated
September 25, and October 8, 1981, respec-
tively, and which contained the purported
signature of Robert E. Poli, President,
PATCO, in which he represents the strike
to be continuing as of the date of each
particular document. See Appeal File of
Charles D. Polley, Tab 3. The agency also
submitted orders issued by the United
States District Court for the Eastern
District of Virginia in civil aetions
filed by the United States against PATO,
containing dates ranging from August 3,
1981, through January, 1982. Again,
implicit in the issuance of each order is
a finding that the strike called by PATCO
continued in existence as of the date of
each respective order.
154a
I find that the appellants were
briefed in June, 1981, about the import of
18 U.S.C. Section 1918, which proscribes
an individual from holding a position in
the United States Government who "partici-
pates in a strike, or asserts the right to
strike, against the Government of the
United States." 18 U.S.C. Section 1918
(3). The record also contains a facsimile
of a telegram sent to the appellants
wherein each was advised that an illegal
strike was in progress, participation
could result in severe disciplinary action
and that an unauthorized absence indicates
participation and that controllers like
the appellants were to report to duty at
their next regularly scheduled shift. Mr.
Hubbard testified that since the appel-
lants did not return to duty at their
scheduled time, nor did any make = an
155a
attempt to call or otherwise contact the
agency, he concluded that the appellants
had “joined a group of other people in an
action . . . to strike against the United
States Government."
In Schapansky v. Department of Trans-
portation, MSPB Docket No. DA075281F1130
(October 28, 1982), the Board noted that
an agency "may establish a prima facie
ease of an employee's voluntary partici-
pation [in a strike] by presenting evi-
dence of his unauthorized absence from
duty during the strike." Id., at 6 n.2.
This, the agency has done.
I find that the agency has made a
prima facie showing that the appellants
did participate in a strike against the
Government of the United States. Duckett
and Yardley v. Tennessee Valley Authority,
MSPB Docket No. AT07528010325 (February
156a
19, 1982) and Jones v. Tennessee Valley
Authority, MSPB Docket No. AT075281010300
(February 19, 1982). I further find that
the appellants were aware of the action
called by PATCO, the agency's knowledge of
it, and the consequences which would
result from their failure to report to
work, as they were so instructed to do. I
find, accordingly, that the agency has
demonstrated that the appellants were
active strike participants.
As indicated supra, neither appellant
testified and thus presented no direct
evidence in rebuttal of the agency's prima
facie case of strike participation by each
of them. In his closing argument, appel-
157a
6 / made reference to
lants' representative
these appellants and certain facts which
were peculiar to each of them, i.e., for
appellant Gardner who was not due _ to
report back until August 5, 1981, at 2:48
p.m., appellants' representative indicated
that August 4 was a briefing day for
appellant Gardner. Similar references
were made with respect to the other appel-
lants but none of them served to explain
or otherwise justify appellants' failure
to report to duty by their deadline shift,
or to demonstrate that their absences were
due to some factor other than intentional
6/ Appellants' representative was Mr. Richard EF.
Swauger, a fired air traffic controller, whose appeal
to the Board was consolidated with those of these
appellants. Substantially all of the direct evidence
presented at the hearing related to Mr. Swauger's
appeal, including the testimony of the witnesses and
the documents introduced by him.
158a
participation in the strike. Schapansky,
Supra, p.6 n.2.
In the petition of appeal filed by
each appellant, I note that their response
to the question "Why do you think the
agency was wrong in taking this action?,”"
were identical, as reflected by Attachment
1 to their petition. I find listed there
eight separate contentions, which, after
my review, I have narrowed to six.
Appellants contend, first, that there
was no meaningful opportunity for a hear-
ing nor was there sufficient notice of
their dismissal. These arguments are
based, apparently, on the fact that the
agency construed striking to be a crime
against the United States, see 18 U.S.C.
Section 1918, and, relying on 5 U.S.C.
Section 7513 (b), reduced the normal 30
day advance written notice period to
159a
seven. The Board has laid this argument
to rest. In Schapansky v. Department of
Transportation, MSPB Docket No. DA075281-
F1130 (October 28, 1982), a case involving
an air traffie controller fired for parti-
cipating in the same strike that the
appellants here are charged with having
participated in, the Board, after discus-
sing pertinent law, concluded that "the
agency had reasonable cause to believe
that the appellant committed a crime for
which a sentence of imprisonment might be
imposed" and that, consequently, its "“in-
vocation of 5 U.S.C. Section 7513 (b) (1)
was justified." Id., at 8. I will give
no further consideration to appellants’
contention.
The appellants argue next that the
agency failed to grant them access to
documents and information relied on by it
160a
in removing them and that the agency den-
ied them access to materials necessary to
present a defense. The arguments are
based, aoparently, on the fact that the
letters dated August 11, 1981, requesting
(1) an extension of time and (2) informa-
tion allegedly covered by the Freedom of
Information Act, were received by Mr.
Hubbard after he issued final decisions
removing the appellants from their posi-
tions. Specifically, the notices of pro-
posed removal advised the appellants that
they could "reply to this notice personal-
ly, in writing, or both, and furnish affi-
davits and other documentary evidene in
support of" their answer to “Vr. Hubbard.
The notices were written on stationery of
the Eastern Region, which is headquartered
in Jamaica, New York. I find that it was
error for the agency not to have been more
irene
l6la
explicit with respect to where the appel-
lants should have directed their reply.
While I note that the agency has argued in
similar appeals that the appellants were
fully aware of where Mr. Hubbard was
located, i.e., Washington National Air-
port, the notices of proposed removal
specifically directed the appellants to
direct their reply to Mr. Hubbard which
reply was apparently to be sent to the
Eastern Regional Office in New York. The
fact that the agency's directive resulted
in -its receiving appellants' letters of
August 11 well after the expiration of the
time in which it directed the appellants
to reply was certainly error.
The question becomes whether the
error was harmful. The Board's regula-
tions define harmful error to mean:
162a
Error by the agency in_ the
application of its procedures
which, in the absence or cure of
the error, might have caused the
agency to reach a_ conclusion
different than the one reach-
ed. The burden is upon the
appellant to show that based
upon the record as a whole the
error was harmful, i.e., caused
substantial harm or prejudice to
his/her rights.
§ C.F.R. 1201.56 (c¢) (3).
I find no evidence that the appel-
lants were substantially harmed by the
circuitous route their letters of August
163a
11, 1981, reached Mr. Hubbard.’/ The
appellants knew upon receipt of their
notices that they had seven days to reply
and, while each acted expeditiously in
responding to their proposed- removal
notices, the appellants chose to request
an extension of time and to argue the
merits of the shortened notice period,
rather than the merits of the removal
action. The appellants have not demon-
ud In his closing statement, appellants’ counsel averred
that the letters were not mailed to New York but
rather they were hand carried to Mr. Hubbard,
apparently hand delievered to him at Washington
National. The record, however, does not support
this statement. The appeal file submitted by the
agency in the case of each appellant contains not
only the letters sent by them, but also a copy of the
envelopes in which the letters were mailed. Each
envelope contained a certified mail stamp and num-
ber as well as a post office cancellation stamp,
which, included herein, is a date on which the let-
ters were mailed. Accordingly, I find no evidence
that these letters were hand delivered to Mr.
Hubbard, at least not before their receipt ir New
York.
164a
strated that, had their letters reached
Mr. Hubbard within a reasonable period of
time, Mr. Hubbard would have (1) granted
the extension and/or (2) accepted their
arguments on the alleged misapplication of
the shortened notice provision. Neither
argument served to explain appellants’
absence from duty during the period of the
shift. Moreover, while I note that the
final decision letters issued by Mr.
Hubbard reflect that the appellants made
"no oral or written reply," it is not
clear whether the decision to remove was
based solely on this fact. The appellants
have the burden in this regard, however,
and they have offered no evidence to en-
able me to conclude one way or the other.
Nor, based on what the appellants have
presented in support of their appeals,
have they shown that, had Mr. Hubbard
165a
considered these same arguments, he would
have been persuaded to reach a conclusion
different than the one reached by him
sustaining the proposed decisions removing
the appellants. Accordingly, I find that
the appellants have not satisfied their
burden under 5 C.F.R. 1201.56 (c) (3).
The appellants also contend that
there was no proof of their participation
in a strike and that their dismissals
constituted a prohibited personnel prac-
tice. With respect to this latter argu-
ment, I note that the burden is on the
appellants to establish this affirmative
defense. 5 C.F.R. 1201.56 (b) (2). The
appellants have offered no evidence in
this regard and I will give this argument
no further consideration. With respect to
the appellants' contention that the agency
has not demonstrated that they partici-
166a
pated in a strike, I find this argument to
be mooted by my findings that the agency
has made a prima facie showing on this
issue.
Finally, the appellants argue that
the facts and circumstances of their case
have not been considered on their indivi-
dual merits. No evidence was presented to
substantiate this claim. I note that one
purpose of an appeal to the Board is to
allow the appellants the opportunity,
which, in this instance, is a statutory
right, to cause the agency to prove its
case against them by a preponderance of
the evidence. That has been done here and
I would note that it has been done with
respect to each individual appellant.
With respect to any defenses an appellant
may have to rebut an agency's case, the
burden lies with him and it is ineumbent
167a
on each appellant to present to this Board
whatever information the appellant
believes should be considered by myself in
arriving at a decision on his appeal.
The agency also charged the appel-
lants with being AWOL for the same days on
which they failed to report to work during
the period of the strike. Sinee I have
found the first charge that the appellants
were engaged in a_e strike against’ the
Government of the United States supported
Dy the evidence, I also find the respec-
tive charges of AWOL equally supported.
The appellant also argued that the
penalty of removal is inappropriate. This
argument, too, was laid to rest »dy
Schapansky, supra, where the Board stated
that "5 U.S.C. Section 7311 can be read to
require removal as the mandatory penalty
for individual federal employees against
.
168a
whom charges of striking are sustained."
Schapansky, supra, at 9. The Board went
on to conclude that, even if mitigation of
the penalty of removal is not foreclosed
under Section 7311 (3), supra, and in
light of the nature and seriousness of the
offense of striking and an_ employee's
involvement therein, the “agency's imposi-
tion of a penalty of removal cannot be
deemed clearly excessive or disproportion-
ate to a sustained charge of striking
against the agency." Id., at 9, 11.
I find, therefore, the agency's
charges that the appellants were involved
in a strike against the Government of the
United States and that they were AWOL
Supported by a preponderance of the evi-
dence, and I further find that the penalty
of removal was reasonable and is for such
cause as will promote the efficiency of
169a
the service. Hampton v. Young, 568 F.2d
1253, 1262, 1264 (7th Cir. 1977);
Schapansky v. Department of Transporta-
tion, MSPB- Docket No. DA075281F1130
(October 28, 1982), pp. 11-12.
DECISION
The agency action removing the appel-
lants is hereby affirmed.
s/William L. Garrett
William L. Garrett
Presiding Official
Notice
This decision is an initial decision
and will become a final decision of the
Merit Systems Protection Board on February
22, 1983 unless a petition for review is
filed with the Board.
*x* * *
170a
For the Board:
s/ William L. Garrett
William L. Garrett
Presiding Official
17la
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WASHINGTON REGIONAL OFFICE
LEROY D. ALEXANDER
RICHARD D. JONES
V.
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
CASE NOS. DCO7&281F1173
and DC075281F1174
DATE: January 24, 1983
INTRODUCTION
Appellants filed appeals in April of 1982
from the agency's actions removing them
from the position of Air Traffie Control
Specialist, GS-12, effective August 22,
1981.
JURISDICTION
The actions appealed were effected under
subpart D of Part 752 of the Office of
172a
Personnel Management regulations, which
was promulgated pursuant to OPM's author-
ity under 5 U.S.C. §7514. The record
reflects that appellants were covered
employees as defined by subpart D, and
were entitled to appeal these actions to
the Board. See 5 U.S.C. §§7511(a)(1)(A),
7512, 7513(d); 5 C.F.R. §8752.401(a),
752.401(b)(1), 752.405(a). As will be
discussed further below, appellants have
shown good cause for waiver of the time
limit for appeal. § C.F.R. $2 1201.12,
1201.22(b). I therefore find that the
appeals are properly before the Board for
adjudication.
ANALYSIS AND FINDINGS
By letters dated August 6, 1981, the
agency proposed appellants’ removals on
the basis of two charges: (1) participa-
173a
tion in a strike against the United States
Government in violation of 5 U.S.C. §7211
and 18 U.S.C. §1918; and (2) unauthorized
absence. Both charges stem from appel-
lants' failure to report for duty on and/
or after August 3, 1981.
The agency sent the August 6, 1981 propo-
sal notices to appellants’ last-known
addresses by regular and certified mail.
On August 18, 1981, having received no
response from either appellant, the agency
issued final decisions, also by regular
and certified mail, which stated that the
charges as set forth in the _ proposal
notices were sustained, and warranted
appellants' removals. Seven of the eight
letters mailed to appellants were subse-
quently returned to the agency marked
"Moved, left no address" or "Unclaimed".
The only letter which was not returned to
174a
the agency was the regular-mail copy of
Mr. Jones' August 18, 1981 final decision.
At the hearing before me, both appellants
denied receiving any letters from the
agency.
Mr. Richard Swauger testified that appel-
lants contacted him sometime within the
first two weeks of September, 1981. Mr.
Swauger was, at that time, representing
numerous people in their avveals to the
Board. He further testified that on
October 1, 1981, he delivered a letter
(attached to the April, 1982 appeals) to
the Board's Washington Regional Office
indicating appellants' desire to appeal
any actions which might have been taken
against them. Although this office has no
record of receiving such a letter, I find
no reason to doubt Mr. Swauger's testimony
that he did attempt to appeal on behalf of
175a
the appellants on October 1, 1981. Appel-
lants' time limit for appeal expired on
September ll, 1981. However, given the
fact that neither had received a final
decision informing him of his right to
appeal or the applicable time limit, I
find that appellants were reasonably dili-
gent in ascertaining and attempting to
pursue, through Mr. Swauger, their right
of appeal to the Board. Moreover, the
agency has not shown that it was pre-
judiced by the untimely filings. I there-
fore find that good cause has been shown
for waiver of the time limit for appeal.
Alonzo v.. Department of the Air Force, 4
MSPB 262 (1980).
The Board has taken official notice of the
fact that members of the Professional Air
Traffie Controllers Organization (PATCO)
engaged in an illegal strike against the
176a
Federal Goverment from August 3, 1981
through at least August 6, 1981. Ketchem
v. Department of Transportation, MSPB
Docket No. DAO75281F0713 (5/28/82). In
addition, the — has found that an
employee's unauthorized absence during the
period of such ea strike may constitute a
prima facie case of said employee's par-
ticipation therein. Schapvansky v. Depart-
ment of Transportation, MPSB Docket No.
DA075281F1130 (10/28/82); Jones v.
Tennessee Valley Authority, MPSB Docket
No. AT07528010300 (2/19/82); Ducket and
Yardley v. Tennessee Valley Authority,
MSPB Docket No. AT07528010325 (2/19/82).
The agency presented the testimony of the
Tower Chief and documentary’ evidence
(watch schedules, sign-on logs and time
and attendance records) to establish that
each of the appellants was absent without
177a
authorization during the period of the
strike, and that each failed to report for
his “deadline shift" the first regularly
scheduled shift after 11:09 a.m. on August
5, 1981). I find this evidence to be
sufficient to establish a prima facie case
of strike participation with respect to
both of the appellants. In light of this
finding, the burden of persuasion now
shifts to each appellant to show that he
"had no knowledge of the existence of the
strike or to demonstrate that his absence
was due to some factor other than inten-
tional participation in the strike."
Schapansky, supra at 6.
Mr. Jones was scheduled to report for duty
at 8:00 a.m. on August 3, 4, 5 & 6, 198f.
He did not report for these, nor any sub-
sequent shifts, and did not otherwise
contact the agency regarding his absences.
178a
Mr. Jones did testify during the "“"time-
liness" portion of the bifurcated hearing
before me. However, he absented himself
during the “merits” portion of the hear-
ing. In his petition for appeal, ap; 2l-
lant stated that he did not report for his
shift on August 6, 1981 because he believ-
ed that anyone who had not reported by
11:00 a.m. on August 5, 1981 had been
fired. However, even assuming that he had
such a belief at the time, he has neither
alleged, nor shown, that he had any inten-
tion or desire to return to duty at any
time. I therefore find that he has failed
to show that his absences were due to
anything other than intentional parti-
cipation in the strike.
With respect to Mr. Alexander, there is no
dispute that at the time the strike began,
he was in Chicago, Illinois in connection
179a
with a Familiarization (FAM) Trip. He was
scheduled to return to the Washington,
D.C. area on a FAM flight on August 5,
1981, and had a regularly scheduled shift
at 8:00 a.m. on August 6, 1981. Appellant
claims on August 4 or 5, 1981 he learned
that his FAM flight had been cancelled by
United Airline. He also testified that he
was afraid to fly because of the strike
and the attendant reduction in the number
of persons controlling air traffic. He
testified that he had to borrow money and
was unable to get a train home until
August 6, 1981, arriving back in
Washington, D.C. sometime on August 7,
1981. He then called a friend who inform-
ed him that she had called the facility on
August 6, 1981 and had been told by some
unidentified person that appellant’ no
longer worked there. He testified that he
180a
had no reason to doubt his friend's word,
and therefore assumed that he had been
fired.
Mr. Alexander's story is patently incred-
ible. He presented no reason why, upon
learning that his FAM flight had _ been
eancelled, he did not immediately contact
his facility to request further instruc-
tions, or to even inform the agency that
he would not be reporting ter duty on
August 6, 1981. In addition, no reason-
able person would assume that he had been
fired based upon a friend's statement that
some anonymous person had said that he no
longer worked there. Moreover, on cross-
examination, appellant admitted that he
attended "gatherings" with PATCO membe>s
at the airport in Chicago. Appellant's
failure to contact the agency at any time
on or after August 5, 1981 to either
18la
request leave or even determine his
status, leads me to find that his unautho-
rized absence was not due to any factor
other than voluntary participation in the
strike.
I find that the agency has established a
prima facie case of strike participation
with respect to both appellants, and that
neither of them has presented persuasive
evidence in rebuttal. The same evidence
establishes that appellants were absent
without authorization, as aileged. I
therefore find that the charges as _ set
forth in the proposal notices are support-
ed by a preponderance of the evidence, and
are sustained.
Appellants claim that they were denied the
right to reply to the agency's proposed
actions, and that this constituted harmful
procedural error. In this regard, they
182a
must show error by the agency in the
application of its procedures, and that,
in the absence or cure of the error, the
agency might have reached a different
conclusion. 5 U.S.C. §7701(¢e)(2)(A)3 5
C.F.R. §1201.56(b)(1). Parker v. Defense
Logistics Agency, 1 MSPB 489 (1980).
However, appellants' non-receipt of the
proposal notices was the result of their
own failure to inforin the agency of their
correct addresses. The agency's mailing
of the notices to appellants' last known
addresses was reasonable under the circum-
stances, and did not constitute error.
Stockton v. Department of the Navy, MSPB
Docket No. SF07528110536 (5/11/82). More-
over, neither apppel lant has shown that
the agency might have reached a different
conclusion had any reply been made. I
therefore find that appellants have failed
183a
to establish harmful error, as alleged.
Unauthorized absence, by its very nature,
disrupts the efficiency of the service.
Chiaverini v. United States, 157 Ct. Cl.
371 (1962); Desiderio v. Department of the
Navy, 4 MSPB 171 (1980). As cited by the
agency, strike participation by a Federal
employee is violative of both civil and
criminal statutes. § U.S.C. §7311(3)
provides that an individual may not hold a
position in the Federal Government if he
participates in a strike. This has been
held to establish removal as the mandatory
penalty for strike participation.
American Pystal Workers Union v. United
States Postal Service, 628 F.2d 1280 (9th
Cit. 1962). In Schapansky, supra, the
Board did not answer the question as to
whether it had authority to mitigate what
appears to be a statutorily mandated pen-
184a
alty. Rather, the Board found that in
light of the nature and gravity of the
offense of striking, as well as_ the
direct, deleterious effects such conduct
has on the efficiency of the service,
mitigation of the penalty would not be
warranted under the standards set forth in
Douglas v. Veterans Administration, MSPB
Doeket No. AT075299006 (4/10/81). I
therefore find that the agency's penalty
selections in these cases were both
reasonable and appropriate.
In summary, I find that the agency effect-
ed appellants' removals for such cause as
will promote the efficiency of the
service. 5 U.S.C. §7513(a).
DECISION
The agency's actions are hereby affirmed.
185a
NOTICE
This decision is an initial decision and
will become a final decision of the Merit
Systems Protection Board on February 22,
1983 unless a petition for review is filed
with the Board.
For the Board:
s/William L. Garrett
William L. Garrett
Presiding Official
186a
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WASHINGTON REGIONAL OFFICE
PATRICK W. McCORMACK
Vv.
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
CASF NO. DCO75281F1056
DATE: January 20, 1983
INTRODUCT 1 ON
Appellant filed an appeal from the
agency's action removing him from the
position of Air Traffic Control Special-
ist, GS-12, effective August 24, 1981.
JURISDICTION
The action appealed was effected under
subpart D of Part 752 of the Office of
Personnel Management regulations, which
187a
was promulgated pursuant to OPM's author-
ity under 5 U.S.C. §7514. The record
reflects that appellant was a covered
employee as defined by subpart D, and was
entitled to appeal this action to the
Board. See 5 U.S.C. §87511(a)(1)(A),
7512, 7513(d); 5 C.F.R. §§752.401(a),
752.401(b)(1), 752.405(a). I therefore
find that the appeal is properly before
the Board for adjudication.
ANALYSIS AND FINDINGS
By letter dated August 6, 1981, the agency
proposed appellant's removal on the basis
of two charges (1) participation in a
strike against the United States Govern-
ment in violation of 5 U.S.C. §7311 and 13
0.8.6. §1918; and (2) unauthorized
absence. Both charges stem from appel-
188a
lant's failure to report for duty on
August 3, 4, and 5, 1981.
The Board has taken official notice of the
fact that members of the Professional Air
Traffic Controllers Organization (PATCO)
engaged in an iilegal strike against the
Federal Government from August 3, 1981
through at least August 6, 1981. Ketchem
v. Department of Transportation, MSPB
Docket No. DAO75281F0713 (5/28/82). In
addition, the Board has found that an
employee's unauthorized absence during the
period of such a strike may constitute a
prima facie case of said employee's parti-
Cipation therein. Schapansky v. Depnart-
ment of Transportation, MSPB Docket No.
DA075281F1130 (10/28/82); Jones v.
Tennessee Valley Authority, MSPB Docket
No. AT07528010300 (2/19/82); Ducket and
Yardley _v. Tennessee Valley Authority,
189a
MSPB Docket No. AT07528010325 (2/19/82).
Appellant admits that he was absent with-
out authorization on August 3, 4, and 5,
1981. However, he claims that he did not
voluntarily participate in the strike, but
rather remained away from work due to
. harassment and intimidation on the part of
PATCO officials and "militant" union mem-
bers, as well as “encouragement” from
supervisory personnel. In this regard,
the Board has stated that an appellant
making such a claim “must demonstate, by a
preponderance of the evidence, that his
failure to report for work was the result
of a threat or other intimidating conduct,
directed toward him, sufficient to instill
in him a reasonable fear of physical dan-
ger to himself and others, which a person
of ordinary firmness would not be expected
to resist." Johnson v. Department of
190a
Transportation, MSPB Docket No. DC075281-
F0998 (11/10/82). In the instant case,
appellant has identified no direct threats
or intimidating conduct which could rea-
sonably be expected to instill fear or
physical danger. HIs alleged fears
related to possible difficulty in "“ceheck-
ing out" (completing a period of training)
and future on-the-job harassment. The
Board has held that such considerations
are insufficient to render strike partici-
pation involuntary. Johnson, supra, at 8-
9.
Appellant also alleged that he was very
upset during this time period, and that he
was physically and emotionally unable to
perform his duties. He expressed particu-
lar concern that, due to the inadequate
staffing conditions, he might cause an
accident and be held liable in the event
19la
of a crash. However, appellant presented
no medical evidence in support of his
claims of physical and mental incapacity,
and he admitted that he never called in to
request sick leave. In fact, appellant
did not even mention this claim in his
written reply to the proposal notice, his
initial petition for appeal to the Board,
or in response to the agency's interroga-
tories. With specific reference to appel-
lant's alleged fears regarding inadequate
staffing and the possibility of being the
cause of an accident, a simple telephone
call to his facility could have alleviated
any such fears. Moreover, appellant has
little standing to complain about, or use
as an excuse, a situation which he helped
to create by his own authorized absences.
Mr. MeCormack also alleges that he was
confused regarding the application of
192a
President Reagan's “deadline” of 11:00
a.m. on August 5, 1981. However, had
appellant truly desired or intended to
return to work, any alleged confusion
could have been alleviated by reporting
for duty, or simply making a_ telephone
call to the facility. Yet appellant took
no such reasonable steps for himself or,
in light of his office as Vice President
of his PATCO local, any other controllers
who allegedly wished to return to work. I
therefore find that any alleged confusion
had no effect on appellant's ability to
return to duty, had he so desired.
Appellant also contended that he was sub-
jected to disparate treatment in that the
Tower Chief made personal telephone calls
to selected individuals in an attempt to
convince them to return to duty. The
Tower Chief denied that she made any such
193a
calls, and the two employees in question,
William Carver and Ellen Gunnulfsen, both
testified that they received no calls from
the Chief. Although their families were
contacted, in one case by a team supervi-
sor and in the other by a former facility
chief, both employees testified that they
made up their own minds on August 4, 1981
to return. Moreover, appellant has failed
to show that any "“plea”™ from the Tower
Chief would have had any greater impact
than President Reagan's call to return to
work. I therefore find no merit in appel-
lant's argument.
I find that the agency established a prima
facie case of strike participation, and
that appellant has failed to rebut it.
Moreover, appellant has admitted that he
was absent without authorization, as
alleged. I therefore find that the
194a
charges as set forth in the _ proposal
notice are supported by a preponderance of
the evidence, and are sustained.
Unauthorized absence, by its very nature,
disrupts the efficiency of the service.
Chiaverini v. United States, 157 Ct. Cl.
371 (1962); Desiderio v. Department of the
Navy, 4 MSPB 171 (1980). As cited by the
agency, strike participation by a Federal
employee is violative of both ‘civil and
criminal statutes. § U.S.C. §7311(3)
provides that an individual may not hold a
position in the Federal Goverment if he
participates in a strike. This has been
held to establish removal as the mandatory
penalty for strike participation.
American Postal Workers Union v. United
States Postal Service, 628 F.2d 1280 (9th
Cir. 1982). In Schapansky, supra, the
Board did not answer the question as to
195a
whether it had authority to mitigate what
appears to be a statutorily mandated pen-
alty. Rather, the Board found that in
light of the nature and gravity of the
offense of striking, as well as_ the
direct, deleterious effects such conduct
has on the efficiency of the service,
mitigation of the penalty would not be
warranted under the standards set forth in
Douglas v. Veterans Administration, MSPR
Docket No. AT075299006 (4/10/81). I
therefore find that the agency's penalty
selection in this case was both reasonable
and appropriate.
In summary, I find that the agency effect-
ed appellant's removal for such cause as
will promote the efficiency of the ser-
vice. 5 U.S.C. §7513((a).
196a
DECISION
The agency's action is hereby affirmed.
NOTICE
This decision is an initial decision and
will become a final decision of the Merit
Systems Protection Board on February 22,
1983 unless a petition for review is filed
with the Board.
For the Board:
s/William L. Garrett
William L. Garrett
Presiding Official
197a
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WASHINGTON REGIONAL OFFICE
RICHARD E. SWAUGER,
Vv.
FEDERAL AVIATION ADMINISTRATION
CASE NO. DC075281F1133
DATE: January 18, 1983
INTRODUCT ION
The appellant filed an appeal on September
14, 1981, from action taken by the Federal
Aviation Administration removing the
appellant from his position of Air Traffie
Control Specialist, GS-14, effective
August 23, 1981, for striking against the
Government of the United States and for
198a
absence without leave (AWOL).
JURISDICTION
Sections 7513(d) and 7701l(a) of Title 5,
U.S.C., permit an employee to appeal to
the Board from agency action involving a
removal. I find that the appellant held
the position in the competitive service
and that he was not serving a probationary
period. I find, therefore, that this
appeal is properly before the Board. s)
U.S.C. Section 75ll(a).
BACKGROUND
On August 6, 1981, Mr. Harry Hubbard
‘l/ This appeal and the appeal of David F. Gardner et al
were consolidated for hearing purposes under the
name of Richard E. Swauger et al. Subsequent to
the hearing, however, I determined that the issues
raised by the appellants in Gardner were identical
and, consequently, I consolidatd them for decision
purposes. The transcripts of the hearing remain
under the name of Swauger et al.
199a
advised the appellant that he was propos-
ing his removal from his position of air
traffie control specialist for two rea-
sons. The first reason involved the
alleged violation of 5 U.S.C. Section
7311, whieh makes it unlawful for. an
individual to “accept or hold a position
in the Government of the United States",
when he "participates in a strike, against
the Government of the United States," and
of 18 U.S.C. Section 1918, which makes a
federal employee's participation in a
strike a crime for which a_ sentence of
imprisonment can be imposed. Mr. Hubbard
told the appellant that a nationwide
strike by air traffie controllers commenc-
ed at approximately 7 a.m. EDT, August 3,
1981. Mr. Hubbard continued that since
the appellant failed to report for duty at
his seheduled time of 1500 to 2300 hours
200a
(3 p.m. to 11 p.m.), August 4, 1981, he
participated in a strike against’ the
Government of the United States.
The second reason for appellant's removal
was based on an unauthorized absence. Mr.
Hubbard explained that, on August 3, 1981,
the agency sent the appellant a telegram
advising him that an illegal strike was in
progress and instructed the appellant to
return to duty at his regularly scheduled
shift. Mr. Hubbard continued that the
appellant failed to return to duty and
"instead remained absent without authori-
zation".
Mr. Hubbard concluded that, since the
aforementioned facts constituted a strike
against the government prohibited by 18
U.S.C. Section 1918 and 5 U.S.C. Seetion
20la
7311, he had “reasonable cause to believe
[that the appellant had] committed a crime
for which a sentence of imprisonment
[could] be imposed." Yr. Hubbard then
afforded the apellant seven days within
which to reply to the notice.
By letter dated August 11, 1981, the
appellant responded to the notice of pro-
posed removal and, after requesting addi-
tional time within which to reply to the
substance of the notice, asserted that
there was no basis for the agency to con-
clude that he had committed a crime for
which a sentence of imprisonment could be
imposed and that, consequently, he should
have been given 30 rather than 7 days to
respond. Additionally, the appellant
requested copies of all the documents
relied upon by the agency in reaching its
20a
decision proposing his removal. Appel-
lant's letter was not received by the
agency until August 24, 1981, 18 days
after the date of the notice. On the same
day, however, Mr. Hubbard responded deny-
ing appellant's request for additional
time, finding that the reasons proffered
by the appellant were not “appropriate to
justify extension of the time limit". Mr.
Hubbard told the appellant that’ the
material relied on by the agency could be
found at Washington Tower.
On August 19, 1981, Mr. Hubbard issued his
final decision removing the appellant,
effective August 23, 1981. In so doing,
Mr. Hubbard indicated that the appellant
made no oral or written reply. This
appeal followed.
203a
ANALYSIS AND FINDINGS
In order for the agency's decision remov-
ing the appellant to be sustained on
appeal to the Board, the agency must show
that it is supported by a preponderance of
the evidence. 5 U.S.C. 7701(c)(1)(B); 5
C.F.R. 1201.56(a)(ii). The Board's regu-
lations define the phrase “preponderance
of the evidence" to mean “that degree of
relevant evidence which a reasonable mind,
considering the record as a whole, might
accept as sufficient to support a conclu-
sion that the matter asserted is more
likely to be true than not true". 5
C.F.R. 1201.56(¢)(2). Further, in Ketchem
v. Federal Aviation Administration, MSPP
Dkt. No. DAO75281F0713 (May 28, 1982), the
Board took official notice that the Pro-
fessional Air Traffic Controllers Organi-
zation (hereinafter referred to as PATCO)
—————————
204a
called a nationwide strike of air traffic
controllers and that such strike commenced
on August 3, 1981 and was still in pro-
gress on August 6, 1981. Sinee the appel-
lant has presented no evidence refuting
this finding, I, too, will take official
notice about the duration of the strike.
I find that the President gave the strik-
ing controllers a 48 hour grace period
commencing from August 3, 1981, to return
to their jobs. See 17 Weekly Comp. Pres.
Doc. $45 (1981). I further find that the
agency, in implementing President Reagan's
ultimatun to return to work, interpreted
the President's directive to mean that
striking controllers could report to work
on their first scheduled shift after the
expiration of the 48 hour grace period.
See United States v. PATCO, 524 F. Supp.
205a
160, 164 (D.D.C. 1981).
That the appellant did not report is not a
matter in dispute. The record establishes
that the appellant was briefed on June 10,
1981, about 18 U.S.C. Section 1918, whieh
proscribes an individual from holding a
position in the United States Government
who “participates in a strike, .. .
against the Government of the United
States." 18 U.S.C. Section 1918(3). The
record contains a facsimile of a telegram
sent to the appellant wherein he is advis-
ed that an illegal strike was in progress,
that participation could result in severe
disciplinary action, that unauthorized
absence indicates participation and that
controllers like the appellant were to
report for duty at their next scheduled
shift. Mr. Harry T. Hubbard testified
206a
that since the appellant did not return to
duty nor contact the agency to explain his
absence, he [Mr. Hubbard] concluded that
the appellant was on strike against the
Government of the United States.
In Schapansky v. Department of Transporta-
tion, MS PB Docket No. DA075281F1130
(October 28, 1982), the Board noted that
an agency “may establish a prima facie
case of an employee's voluntary participa-
tion [in a strike] by presenting evidence
of his umauthorized absence during the
strike.” Id., at 6 p.2. This, the agency
has done.
I find that the agency has made a prima
facie showing that the appellant was an
active strike participant. Schapansky,
supra. The appellant was scheduled to
207a
report for work on August 6 and he failed
to do so. This, together with the common
knowledge of PATCO's strike and appel-
lant's unauthorized and unexplained
absences during this period, leads me to
conclude that the appellant was an active
strike participant. Id.
The appellant argues that he did not
report to work during this period because
he was not mentally able to perform the
duties of an air traffie controller. The
appellant cites two reasons for his mental
deficiency. First, the appellant points
to work he did on behalf of two former air
traffie controllers, Messrs. David R.
Trout and Leighton Adams, in assisting
them in their efforts to retire on disabi-
lity. With respect to Mr. Trout, the
appellant testified that he first became
208a
aware of Mr. Trout's heart disease in 1973
and, in May 1980, he and Mr. Trout testi-
fied before a House Congressional Commit-
tee investigating problems with the Office
of Workmen's Compensation. In 1981, Mr
Trout finally began to receive his retire-
ment checks. The appellant added that Mr.
Trout then incurred tax problems, appar-
ently in early 1981, and that he (the
appellant) continued to assist Mr. Trout,
devoting more time than ever to his case
as late as July 1981.
With respect to Mr. Adams, the appellant
indicated that he began working on his
behalf in 1980 and that his efforts con-
tinued throughout 1981. The appellant
represented that Mr. Adams suffered from
high blood pressure and that he was unable
to obtain disability retirement and, after
209a
a June 23, 1981 adverse decision from the
Office of Personnel Management, the appel-
lant filed on Mr. Adams' behalf an appeal
with the Merit Systems Protection Board.
The appellant noted that he was working on
Mr. Adams' case when informed by tele-
phone, apparently on August 3, 1981, that
he had been fired by the President of the
United States.
The second reason the appellant gives for
his absence during the period of the
strike is based upon his involvement in
what has been referred to as a "system
error" that oeecurred on July 27, 1981,
approximately seven days before the start
of the strike. The appetient explained
that on that day a civil jet was preparing
for departure on runway 36 and that a
"civil prop" was inbound on runway 33,
210a
which intersected runway 36. The appel-
lant continued that he cleared the jet for
departure but forgot about the incoming
prop, resulting in both airplanes
approaching the intersecting point. After
his supervisor advised the appellant of an
impending collision, the appellant hurried
the prop through the intersection. The
appellant represented that he was upset,
as he had forgotten an aircraft under his
control, something which had never baneen-
ed to him before. The appellant added
that he requested to take the entire week
off, but his request for leave was denied.
Thus, continued the appellant, he went to
work during the week of July 27, 1981,
precisely one week before the start of the
strike called by PATCO, knowing that Mr.
Leighton Adams was having difficulties and
was about to be fired, and thinking about
the system error in which he had been
21lla
involved. The appellant concluded that he
did not want to go back during the week of
July 27 because he could not concentrate
on his work.
That the appellant was actively involved
in representing members of PATCO and that
a system error occurred are not in dis-
pute. Indeed, with respect to appellant's
activities as a representative, his testi-
mony as well as that of Mr. Hubbard's
indicates that the appellant had long been
involved in this type of activity and
that, on oceasions, the anpellant was
given leave to perform this function. 2/
As regards a system error, testimony was
2/ With respect to Mr. Leighton Adams, who worked
out of the Phoenix TRACON, the record suggests
that the appellant traveled to Mr. Adams duty
Station and that leave was given for this purpose.
212a
given that controllers involved in such
mishaps generally do one or two things,
namely, take a leave or absence or con-
tinue to work traffic. Testimony was also
given that the best therapeutic measure is
for the controller to continue working.
Mr. Hubbard testified that he did not
believe that the appellant, having 27
years of experience as an air traffic
controller, would allow a system error to
seriously affect him. The appellant
represented that it was not so much the
occurrence of the system error which dis-
turbed him as it was the fact that it was
happening to him. In his representations,
the appellant attributed its occurrence to
the fact that he was becoming deeply
213a
embroiled in the appeals of Messrs. Adams
and Trout. ?/
I find that the appellant has not rebutted
the agency's prima facie case that he was
an active strike participant. While I
find that the appellant was actively
involved in representing certain former
air traffic controllers, and while the
appellant may have been affected by the
system error, I am not persuaded that
these findings are sufficient to justify
appellant's failure to report to work on
August 4 and 5 or by the start of his
deadline shift on August 6. The appellant
3/ The appellant also testifed that, during the period in
question, his mother was seriously ill, having had
two recent operations related to heart disease. Mr.
Trout testified that he drove the appellant to visit
his mother in Pittsburgh after the job action
commenced.
214a
did not call the facility at anytime dur-
ing the period of the strike to explain
his absence or to request leave on account
of his mental inability to perform air
traffic duties. I note that upon the
occurrence of the system error on July 27
the appellant requested leave but that it
was denied. I find that the appellant
could have renewed his request for leave
during the period of his absence.
I further find, based upon appellant's
testimony, that he complied with the
local's request on August 6 or 7 to come
to the union hall to brief controllers on
their appeal rights, as they did not know
what to do. I find appellant's compliance
to indicate that he was not so mentally
impaired as he seems to argue. I further
find appellant's compliance with PATCO's
215a
request to indicate that he was able to
work during his absence from work.
I find, therefore, that the appellant has
not successfully rebutted the agency's
prima facie case of strike participation.
The agency also charged the appellant with
AWOL for the same days on which he failed
to report to work during the period of the
strike. Since I have found the first
charge of striking to be supported hy the
evidence, I find the AWOL charge equally
supported. In this connection, ! note
that the Board has. found AWOL and striking
to be just cause for removal, since they,
by their very nature, disrupt the
efficiency of the service. Schapansky,
supra; Butler v. Smithsonian Institution,
MPSB Docket No. DC07528090075 (March 39,
2168
1981); Desiderio v. United States Depart-
ment of the Navy, MSPB Docket No. PH07528-
010036 (November 17, 1980).
Accordingly, I find the agency's charges
supported by a preponderance of the evi-
dence and that appellant's removal is for
such cause as will promote the efficiency
of the service. Hampton v. Young, 568
F.2d 1253, 1262, 1264 (7th Cir. 1977);
Schapansky, supra.
DECISION
The agency action removing the appellant
is hereby AFFIRMED.
NOTICE
This decision is an initial decision and
will become a final decision of the Merit
217a
Systems Protection Board on February 22,
1983 unless a petition for review is filed
with the Board.
For the Board:
s/ William L. Garrett
William L. Garrett
Presiding Official
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.