# Appendix — Darnell v. Department of Transportation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2186%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 484 U.S. 817 ## Text OD = Supreme Gout U.S. No. ; | APR 30 1987 pw “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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2186%3A2. Public record. Not legal advice.