Petition for Writ of Certiorari — Bader v. Department of Transportation
Supreme Court brief1986
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—_ |
“- « Suprette Gourt, US.
86-658 FILER D
OCT 26 DB
JOSEPH F. SPANTOL, JR.
NO. GLERK
IN THE SUPREME COURT OF THE UNITED
STATES
OCTOBER TERM, 1986
RAYMOND G. BADER, JIMMY N. HALE,
PHILLIP M. SANDERS, and JOSEPH C.
WAGNER,
Petitioners,
vs
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPPEALS
FOR THE FEDERAL CIRCUIT
DAN M. NORWOOD
BYRD, COBB, NORWOOD, LALIT, DIX &
BABAOGLU
99 North Third Street
Memphis, Tennessee 38103
(901) 523-0301
Attorneys for Petitioners
NO.
IN THE SUPREME COURT OF THE UNITED
STATES
OCTOBER TERM, 1986
RAYMOND G. BADER, JIMMY N. HALE,
PHILLIP M. SANDERS, and JOSEPH C.
WAGNER,
\
Petitioners,
VY .
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPPEALS
FOR THE FEDERAL CIRCUIT
DAN M. NORWOOD
BYRD, COBB, NORWOOD, LAIT, DIX &
BABAOGLU
99 North Third Street
Memphis, Tennessee 38103
(901) 523-0301
Attorneys for Petitioners
PETITIONERS
Baccus, Lindsey, C.
Bader, Raymond C.
Badgett, John N. III
Baker, Ronald G.
Ballard, Douglas E.
Bastin, Rickie R.
Belcher, Harold L.
Bennett, Catherine P.
Bennett, Larry W.
Bice, William R., Jr.
Bloodworth, Terry M.
Boyd, Christy E.
Boyd, Wiliiam A., Jr.
Brock, Gary D.
Brooks, Ronald R.
Brown, James D.
Brown, Joseph W. II
Buchanan, Larry D.
Buck, Danny T.
Buck, Marvin R.
Bull, Donald L., Jr.
Butler, David H.
Caimotto, Terrence G.
Calhoun, John kK.
Carden, Michael E.
Cary, Richard M.
Chase, Wayne S.,
Coleman, Charles E.
Collins, Douglas A.
Copeland, Myra J.
Cosby, Jack H., Jr.
Cox, Ronald G.
Crocker, William E.
Crockett, Walter S.
Crouch, Charles M.
Currin, Robert L.
Cvitkovich, Carl A.
Dearing, James V.
Devall, Roger W.
Dillard, Curtis M.
Douglas, Nancy M.
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Douglas, Woodie A.
Dyer, James C.
Eatwell,
Egner, William E.
Elliot, George D.
Embler, Donald M.
Farrar, Robert D.
Ferrer, Nancy T.
Fournier, Paul P.
Gilbert, Michael
Gilliland, Wm. R.
Glenn, James M,
George E.
III
W.
, JI.
Goninan, Joseph P.
Grayson,
Green, Danny W.
Green, Glenn E. ,
William V.
Jr.
Greene, Carolyn F.
Grimes, David K.
Guest, Dixie
Guest, William M.
Hale, Jimmy N.
Hall, Kenneth D.
Hall, Michael E.
Hammack,
Hanna, Richard F.
Higbee, Terrence
Hlavin, Warren E.
Stanley G.
J.
, JC.
Hobson, Raymond T.
Michael
Billie
Holeman,
Holliman,
Holliman,
Hould, Larry M.
Howard, Eddie L.
Hudson, John W.
Huffman, Jerry M.
Jackson,
Jarvis, Joseph S.
Jones, Devereaux
Justice, Charles
Lepeard, Charles
Long, Frank L.
Loudakis, George
Lowrance,
Leonard
J.
a
Thomas D.
-— it
B.III
M.
Ww.
Linda S.
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Magee, Louie G.
Maloney, John M.
Marsh, Steven W.
Martel, Claude J.
Martin, Arthur W.
Martin, Helen J.
Martin, Michael W.
Massey, Mark W.
McCaa, Clifford O.
McCreight, John M. Jr.
McIntosh, Joseph M.
McKie, Jon W.
Mercer, Joe M., Jr.
Milsap, Jon D.
Moody, John W.
Morgan, Perry G.
Morris, Philip E.
Murray, Steven L.
Mynatt, Roy A., Jr.
Naanes, John M.
Nash, Thomas E.
Neighbors, Russell W.
Nellums, William R.
Nesbit, Timothy R.
Nevares, Jose R.
Nicholson, John F., Jr.
Nutt, Doyle T., Jr.
Odum, Virgil B., Jr.
Peden, Max S.
Pendley, Steven C.
Pirkle, Tony C.
Poston, Robert D.
Prewitt, Stephen E.
Pryse, William C.
Pumphrey, William D.
Rawls, Byron W.
Reed, Marshall R.
Render, Terrence M,
Reynolds, D. J.
Rickvalsky, William A.
Roberts, Kay P.
Rodgers, Ray N.
Ross, Leslie D.
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Rowsey, Wm. F., Jr.
Russell, Thurman D.,Jr.
Sanders, Philip M.
Sanford, Robert M.
Scheffell, Nathan R.
Scott, Edwin G.
Sedgwick, Ralph C.
Selvey, James R.
Stechfield, Daniel G.
Shell, David L.
Smith, Dennis C.
Sniegowski, Mark
Spurlin, Larry E.
Stallings, James M,.
Stewart, George A.
Stewart, Glen W., Jr.
Sutton, Harry D.
Sykes, Don J.
Teems, Ronald J.
Tempelmeyer, Reginald
Titus, David C.
Wagner, Joseph C. Jr.
Walden, James V.
Walker, Jeffrey L.
Warren, Patricia H.
Watkins, Randall L.
Weaver, Buford R.
Webb, Jimmy W.
Weik, Gary J.
Welch, Earl M., Jr.
Welch, Larry W.
White, Ernest B., Jr.
Wichert, George C., Jr.
Wilder, John W.
Wilder, Stanley R.
Williams, Charles D.
Williams, Robert E.
Wright, Glenn T.
Young, Brenda M.
Young, Robert J.
Zauche, Stephen R.
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QUESTION PRESENTED
WHETHER ALLOWING THE GOVERNMENT TO USE
"SECRET SETTLEMENTS" TO MITIGATE THE
PENALTY OF REMOVAL IMPOSED AGAINST
SOME, BUT NOT ALL, EMPLOYEES FIRED FOR
STRIKING AGAINST THE FEDERAL
GOVERNMENT ABROGATES THE EQUAL
TREATMENT GUARANTEES OF THE CIVIL
SERVICE REFORM ACT AND THE UNITED
STATES CONSTITUTION.
TABLE OF CONTENTS
QUESTION PRESENTED...... cece rccccces od
OPINIONS BELOW... .cccccccccsccccccceed
JURISDICTION... cccccccccccccsccsccseee
STATUTES AND REGULATIONS........22+223
STATEMENT OF THE CASE... .ccccccccccce ed
REASONS FOR GRANTING THE WRIT........9
I. FAILURE TO GRANT THE WRIT
WILL RENDER THE EQUAL TREATMENT
GUARANTEES OF THE CIVIL SERVICE
REFORM ACT AND THE JU. S.
CONSTITUTION MEANINGLESS.......10
ee ttc cece occ se
APPENDIZ 2c ccc cc ccccccccccccccscseeed3
TABLE OF AUTHORITIES
Pages
CASES
Bivens v. TVA
© Hem Gos CAPCd cc avccoscdscrier 11,20,21
Bergh v. DOT,FAA,
TOS Bebe BOTS. CAPSS bc cveas 2,6,9,10,11
Douglas v. VA
> GBP 2O0 LEPGL) cccccsececsccece 11,12
Drummer V. GSA,
BG CEM BSA CASE pc ccccrcesvacnvee 11,20
Filip v. VA,
2 BOER S29 (ADE) cocsscescsesecece 11,20
Norwood v. FAA,
580 F. Supp. 984 (1983)..... Feboeaeeal
Phillips, Inc. v. Walling
FEO Oke SPO) PEPE 64h 50 0600 00 cence 14
Schapansky v. DOT, FAA
eS Boe ee |} ree Te ee 13
United States v. Dotterwich
b - &@ Oe ee’) eee ee 24
Washington v. TVA
8 MSPR 27 (1981)...... TeTCr Tere 19, 21
Wilson v. U. S. Postal Service
ie Bw: we. oi RePrerPrerrrrrrTTs ll, 20
Wirtz v. Ti Ti Humus Company
STS Wcke BOP CECH CEE « S97S} cccccces 14
Woody v. GSA
2 . ge me fe Pererrererrrrry 10, lil
Yick Wo v. Hopkins
Bee Mey BOW CEOOR Sc ccccvcsseces 21, 22
STATUTES AND REGULATIONS
5 U.S.C. § 2301(b).......3, 18, 23, 24
> U.S.C. § 7311...... ecccceccccccccc cd
DS U.E.C. § PE13(G) .ccsscccsccvcvcseeed
3 U.8.C. FS FIULececacccsece 008, 18, 23
2 U.S.C. § TIDZ..ccaee coccccceceseeesO
2 @.8.C. § 7703(C).2..-. cccccccs ood, 8
28 U.S.C. § L254(1) creer cveeseeveed
OTHER DOCUMENTS
Breaking Trust, Director's
Monograph, U. S. Merit Systems
Protection Board Office of Merit
Systems Review and Studies,
a GS >: ere ¢ ae
-iii-
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1986
RAYMOND G. BADER, et al
Petitioners,
¥.
DEPARTMENT OF TRANSPORTATION, FAA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
QUESTION PRESENTED
WHETHER ALLOWING THE GOVERNMENT
TO USE "SECRET SETTLEMENTS" TO
MITIGATE THE PENALTY OF REMOVAL
IMPOSED AGAINST SOME, BUT NOT ALL,
EMPLOYEES FIRED FOR STRIKING AGAINST
THE FEDERAL GOVERNMENT ABROGATES' THE
EQUAL TREATMENT GUARANTEES OF THE
CIVIL SERVICE REFORM ACT AND THE
UNITED STATES CONSTITUTION.
OPINIONS BELOW
The opinion of the United States
Court of Appeals’ for the Federal
Circuit is reprinted in the Appendix
to this petition and is an unpublished
decision of the Court. The opinions
cf the United States Merit Systems
Protection Board are reprinted in the
Appendix to this Petition. The Bergh
v. Department of Transportation, FAA,
decision on which the Court below
based its decision in this case is
also reprinted in the Appendix.
JURISDICTION
The opinion and judgment of the Court
of Appeals was entered on July 18,
1986 and the jurisdiction of this
Court is invoked under 28 7.6.6
Section 1254(1).
2
STATUTES AND REGULATIONS
5 U.S.C. Section 2301(b):
Federal personnel management
should be implemented consistent
with the following merit system
principles...
(2) All employees and applicants
for employment should receive
fair and equitable treatment in
all aspects of personnel
management without regard to
political affiliation, race,
color, religion, national origin,
sex, marital status, age, Or
handicapping condition, and with
proper regard for their privacy
and constitutional rights.
(8) Employees should be
(A) protected against arbitrary
action, personal favoritism, or
coercion for partisan political
purposes...
5 U.S.C. Section 7703(c):
In any case filed in the United
States Court of Appeals for the
Federal Circuit, the court shall
review the record and hold
unlawful and set aside any agency
actions, findings, or conclusions
found to be arbitrary,
capricious, an abuse of
discretion, or otherwise not in
accordance with law;...
5 U.S.C. Section 73l1l:
An individual may not accept or
hold a position in the Government
of the United States...if he ...
(3) participates in a strike ...
against the Government of the
United States...
STATEMENT OF THE CASE
Petitioners, air traffic
controllers employed by the JU. S.
Department of Transportation, Federal
Aviation Administration, [hereinafter
FAA), were fired for striking against
the government in August 1981. Before
the Merit Systems Protection Board and
Court of Appeals for the Federal
Circuit, Petitioners, among other
arguments, alleged the removal for
striking was in violation of the equal
treatment guarantees found in the
Merit System Principles of the Civil
Service Reform Act and the Fifth
Amendment Equal Protection Clause of
the U.S. Constitution. The claimed
qn
denial of equal treatment was based
upon the Government's entering "secret
settlements” which mitigated the
penalty of removal imposed against
some, but not all, of the employees
who were fired for striking in August
1981. The Court of Appeals and Merit
Systems Protection Board rejected
Petitioner's contentions and _ denied
Petitioner's request to reopen’ the
record for additional discovery and
admission of evidence regarding the
settlements with similarly situated
employees.
The only issue presented in this
case which had not previously been
decided by the Court of Appeals in
other air traffic controller appeals
was: Whether the record should be
reopened for discovery and
introduction of evidence which might
prove the government violated
a6=
petitioner's constitutional and
Statutory rights to equal treatment
for similar offenses when it entered
into secret settlements with a number
of controllers fired for striking and
reduced their removal to a suspension
Without pay for being Absent Without
Leave (AWOL). The Court of Appeals
denied the appeal based upon its July
2, 1986 ruling in Bergh v. Department
of Transportation, FAA, 794 F.2d 1575.
(Appendix F). In Bergh the Court
basically ruled that the requirements
of the Civil Service Reform Act of
1978 guaranteeing equal treatment of
employees do not apply to settlement
agreements which reduce penalties
previously imposed. The Court
concluded that the law favors
settlement of cases and overlooked the
prior law requiring the government to
prove by a preponderance of the
evidence that there were legitimate
reasons for disparate treatment once
an employee-appellant alleges
disparate treatment in comparison with
other employees.
The facts which first gave rise
to Petitioner's claim of disparate
treatment was counsel's discovery in
November 1982 that a number of
controllers who were fired and _ had
appealed their firings to the MSPB had
their appeals dismissed without
explanation. Subsequently, a Freedom
of Information Act lawsuit filed
against the FAA in the United States
District Court for the Western
District of Tennessee, Civil Action
No. 83-2315-HA, W.D. Tenn.
(1983),(reported at 580 F.Supp. 984
(1983), resulted in a court’ order
denying the government's claim of
exemption of the settlements from the
alin
FOIA. Subsequent production of 123
redacted files by the government
verified that federal employees fired
for striking had their removal reduced
to a suspension without pay for being
Absent Without Leave after they
appealed their removal to the MSPB.
Reasons for the lesser penalties being
imposed against these strikers have
not been disclosed by the government.
The request to reopen the record and |
allow further discovery and
introduction of evidence relating to
these settlements was denied upon a
ruling that the evidence was not
relevant. The Court below reviewed
the MSPB decision pursuant to 5 U.S.C.
Section 7703. The MSPB review of
Petitioner's appeal of the
termination decision was pursuant to 5
U.S.C. Section 7513(d) and Section
7701.
REASONS FOR GRANTING WRIT
The Court of Appeals for the
Federal Circuit decided a question of
law which affects the rights of every
federal government employee under the
Civil Service Reform Act of 1978 and
which has not, but should be, settled
by this Court. The Court denied
requests to reopen the record below
for discovery concerning alleged
"secret settlements" entered between
the FAA and certain other air traffic
who had, like Petitioners, been fired
for striking in August, 1981. The
Court denied the request based upon
its opinion in Bergh v. Department of
Transportation, FAA, wherein the Court
ruled in effect that disparate
treatment in discipline which results
from settlement of cases before the
Merit Systems Protection Board does
alu
not violate the prohibitions against
disparate treatment in discipline
found in the Civil Service Reform Act
and the United States Constitution.
I. FAILURE TO GRANT THE WRIT WILL
RENDER THE EQUAL TREATMENT
GUARANTEES OF THE CIVIL SERVICE
REFORM ACT AND THE U. Ss.
CONSTITUTION MEANINGLESS.
The decision of the U.S. Court of
Appeals for the Federal Circuit in
this case, relying on its decision two
weeks earlier in Bergh v. Department
of Transportation, FAA, 794 F.2d 1575
(July 2, 1986), has the effect of
reversing the prior rule of law which
required government agencies to prove
by a preponderance of the evidence
that there were legitimate reasons for
disparate treatment of employees for
Similar alleged misconduct. Woody v.
a
otta
General Services Administration, 6
MSPR 468, 488 (1981); Douglas v.
Veterans Administration, 5 MSPR 280,
306-7 (1581); Bivens v. TVA, 8 MSPR
458, 463 (1981); Washington v. TVA, 8
MSPR 27, 29 (1981); Filip v. Veterans
Administration, 15 MSPR 329, 333
(1983); Drummer v. GSA, 22 MSPR 432,
434 (1984); Wilson v. U.S. Postal
Service, 21 MSPR 490 (1984).
The Court in Bergh concluded that
Woody and Douglas, however, are
lnapposite because they deal
solely with the question whether
the penalty the agency selected
was proper. The alleged
disparate treatment here,
however, does not involve any
difference in the penalty imposed
upon different employees -- all
the air traffic controllers
involved were removed -- but
turns upon the propriety of the
Administration's settling some of
the cases before the Board by
reinstating some controllers, and
not explaining the reasons why it
also did not enter into like
settlements with the petitioners.
|
:
:
;
:
-12-
Appendix F. In addition, the Court
concluded that the explanation of
counsel for the agency in its brief to
the Court of why it reduced the
removal penalty for some controllers
met the Government's burden and that
settlements were to be encouraged. If
these rulings of the Court of Appeals
are allowed to stand, then the
government in the future will be
allowed to routinely make “end runs"
around the equal treatment guarantees
of the Civil Service Reform Act of
1978 and the equal protection
guarantees of the U.S. Constitution.
Obviously, to avoid the Woody and
Douglas burden of proof when disparate
treatment is alleged by an employee
who has been disciplined, all the
government will have to do is provide
equal penalties initially and_ then
enter secret settlement the next day
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with the favored employee reducing or
eliminating the penalty imposed.
The intent of the Congress and
the President of the United States in
the enactment of the landmark Civil
Service Reform Act of 1978 was
mainifestly clear: to remedy serious
defects in the Nation's Civil Service
System, especially continuing abuses
of the "merit system" first set up by
the Pendleton Act of 1883. As the
Court of Appeals for the Federal
Circuit stated in Schapansky v. Dept.
of Transp., FAA, 735 F.2d 477, 485
(1984), “Ideal justice, and government
personnel regulations, envisage equal
treatment of persons similarly
Situated". To ensure that this ideal
justice is attained the Civil Service
Reform Act was amended in 1978 to
correct some of its earlier
weaknesses,
-14-
Remedial legislation regulating’ the
conditions of employment (like the
Civil Service Reform Act and the Fair
Labor Standards Act) is to be
liberally construed “in favor of the
workers whom it was designed to
protect" with an eye toward carrying
out the intent of Congress and the
will of the people in passing
enactments to remedy past abuses.
Wirtz v. Ti Ti Humus Company, 373 F.2d
209 (4th Cir. 1976), citing Phillips,
Inc. v. Walling, 324 U.S. 490, 493
(1945).
The recent MSPB BREAKING TRUST
report concluded that the merit system
principles and prohibited personnel
practices, "Taken together éwa
constitute a sort of ‘Magna Charta' or
constitution of federal employment
law. BREAKING TRUST, Prohibited
Personnel Practices in the
ges, fn Oita? Wl
Fels ond
=
-_
7
-15-
Federal Service, Director's Monograph,
U. S. Merit Systems Protection Board
Office of Merit Systems Review and
Studies, February 1982 at l, hereafter
cited as BREAKING TRUST. That "Magna
Charta oor constitution" has been
violated through the secret
settlements and now sanctioned by the
Court's decision below.
While the U. S. Government gave
the impression to the world that all
striking air controllers who failed to
return to work by their deadlines were
permanently .ired, that same
Government gave favorable treatment
and special consideration to at least
123 air traffic controllers by
reintstating them after they went on
Strike, were fired for doing so, and
had appealed their firings to the
MSPB. Norwood v. FAA, 580 F. Supp.
(984 (W.D. TN. 1983). For the 123 the
=16=
penalty of removal for striking was
reduced to a suspension without pay
for being Absent Without Leave and
implemented through secret settlement
agreements. Id.
The "secret settlements” were
learned of by Petitioner's counsel for
the first time in November 1982 when
he became aware of the dismissal,
without explanation, of several cases
nie before the MSPB. Each of
these cases involved air traffic
controllers fired for striking in
August 1981. They were fired only
after having had an opportunity to
respond to the charges of striking and
having had those defenses rejected by
the FAA. That the secret settlements
were entered was later verified
through a Freedom of Information Act
lawsuit filed by counsel for
Petitioner in the United States
|
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Siew: ; *
= hy
District Court for the Western
District of Tennessee. Norwood v.
Federal Aviation Administration, 580
F. Supp. 994 (W.D.TN. 1983). The
Honorable United States District Court
Judge Odell Horton granted a motion
for partial summary judgment for the
Plaintiff in that case, rejecting all
of the Government's claims that these
settlements were exempt froin
disclosure under the Freedom of
Information Act and ordering that the
Government release the inculpatory
documents based on there being a
"strong public interest in
ascertaining whether the agency
authorized to deal with the Nation's
aviation safety handled matters
Surrounding the strike in a fair and
consistent manner." (emphasis added)
Id.
Petitioner suggested below that
ae
si@a
secret settlements in fedeal personnel
management violate two of the merit
principles, to wit:
Federal personnel management
should be implemented consistent
with the following merit system
principles:...
(2) All employees and applicants
for employment should receive fair
and equitable treatment in all
aspects of personnel management
without regard to political
affiliation, race, color,
religion, national origin, sex,
marital status, age, or
handicapping condition, and with
proper regard for their privacy
and constitutional rights
(8) Employees should be
(A) protected against arbitrary
action, personal favoritism, or
coercion for partisam political
purposes,
5 U.S.C. 2301. (Emphasis added) Under
5 U.S.C. § 7701(c)(2)(B), any agency
personnel decision, even assuming
arguendo it is supported by a
preponderance of the evidence, must be
reversed where the employee shows that
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ad + .
:
aida
the decision was based on any
prohibited personnel practice. Clearly,
agencies act illegally, arbitrarily
and capriciously when they dispense
unequal penalties for equal offenses.
In one case, a United States Tennessee
Vally Authority employee was fired for
possession of a firearm on TVA
property -- while other TVA employees
found with firearms were merely given
warning letters. The Merit Systems
Protection Board held in that case
that where rules are inconsistently
applied, agency decisions to remove
employees will be overturned.
Washington V. Tennessee Valley
Authority, 8 MSPR 27, 29 (1981).
In another MSPB-TVA case
involving illegal, arbitrary and
capricious discrimination in the form
of unlike penalties for like offenses,
two employees were fired for removing
hee eee
bal ated ht
mathe... . melt tiphha io a
- rw ed a eS" ee re ie ae
;
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:
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TVA equipment, for unauthorized use of
TVA equipment, and for other
offenses. Before the MSPB, the fired
TVA employees produced unrebutted
evidence that other similarly situated
employees were given less severe
penalties. The Merit Systems
Protection Board ordered the _ less
severe 60 day suspension be imposed
instead of the unequal and
discriminatory firing. Bivens and
Marshall v. Tennessee Valley
Authority, 8 MSPR 458 (1986). The
Board continued to follow this rule in
Filip v. VA, 15 MSPR 329, 333 (1983);
Drumme’ v. GSA, 22 MSPR 432, 434
(1984); Wilson v. U.S. Postal Service,
21 MSPR 490 (1984).
Because the MSPB denied the request
for discovery of and thereafter
introduction of evidence of unequal
treatment inherent in the 123 being
rehired through secret’ settlements,
Petitioner was not afforded the same
procedural rights and remedies as
fellow U. S. Government employees
(e.g. Washington, Bivens and
Marshall). As a result Petitioner was
denied a hearing - on the unequal
treatment by which they have been
denied their rights under the Civil
Service Reform Act and the Equal
Protection provisions in the United
States Constitution,
The federal courts are not
strangers to similar cases of
outrageous and invidious
discrimination. For example, in the
landmark Constitutional law case of
Yick Wo v. Hopkins, 118 U.S. 356, 6 S.
cs. 1064 (1886), San Francisco
required by ordinance that all hand
laundries be in brick Or stone
buildngs (rather than in cheaper frame
3
\E
‘S
34
:
-22-
buildings) unless there was’ special
permission granted by the Board of
Supervisors. Chinese immigrants were
denied permission for a variance, were
convicted of violation of the city
ordinance, and were sentenced to
imprisonment. The United States
Supreme Court held the Equal
Protection guarantees of the
Constitution were violated by such
discrimination.
In the case at hand, the
Government avoided compliance with the
Yick Wo rule by concealing the
evidence that will prove denial of
equal treatment under the law and the
Court of Appeals for the Federal
Circuit decision sanctions that
concealment. The secrecy in the
settlements implies that the reason
some strikers were reinstated was
because some have more influence than
others at FAA.
Under the Civil Service Reform
Act, at 5 U.S.C. 7701(c)(2), no Merit
Systems Protection Board decision may
be upheld where the employee. or
applicant
(A) shows harmful error in the
application of the agency's
procedures in arriving at such
decision;
(B) shows that the decision was
based on any prohibited personnel
practice described in section
2302(b) of this title; or
(C) shows that the decision was
not in accordance with law.
Petitioner contended below that (A)
they have been victims of harmful
error in exclusion of materially
relevant evidence of unequal
treatment, that (B) the personnel
decisions affecting them were tainted
With prohibited personnel practices
[violations of 5 U.S.C. §§ 2301(b)(2)
-~24-
and (b)(8)(a) inherent in the secret
settlement] and that (C) the decision
was not in accordance with the law and
administrative decisions of the MSPB
relating to unequal penalties’ for
equal offenses.
The language of the statute
requires only one of these three
elements be present for a decision to
be overturned. In this case, all
three elements were present, providing
the Court below with strong and
compelling grounds for reopening the
record in the interest of justice. If
the Civil Service Reform Act is to be
"treated as a working instrument of
government and not merely as a
collection of English words," United
States v. Dotterwich, 320 U.S. Zit
280, 64 S.Ct. 134, 136 (1943), unequal
treatment of Government employees who
commit Similar offenses must be
228
remedied. Only in a new hearing will
Petitioner's rights be protected
through the introduction into evidence
of the 123 secret settlements and
other evidence of unequal treatment.
Allowing the ruling of the Merit
Systems Protection Board and Court of
Appeals to stand would encourage
government law breaking through the
new tool of “secret settlements" the
day after "equal" penalties have been
imposed,
Petitioners have been wronged,
because information about possible
illegality, irregularity and fraud in
the settlement of the claims of a
minority of air traffic controllers
has been kept out of the consideration
of Petitioner's case. Petitioners
sought to have their cases remanded
with an order to allow them = an
Opportunity to enage in further
ee
tn.
discovery about the secret
settlements. The Civil Service Reform
Act very specifically gives federal
courts this power to right wrongs:
The court shall review the
record for the purpose of
determining whether the
findings are in accordance
with law, and whether’ the
procedures required by
Statute and regulations were
followed ... the findings of
the Board are conclusive if
Supported by evidence in the
record. If the court
determines that further
evidence is necessary, it
shall remand the case to the
Board. The Board, after such
further proceedings as may be
required, may modify its
findings, and shall file with
the court the record of such
proceedings. The findings of
the board are conclusive if
Supported by the evidence in
the record as supplemented.
5 U.S.C. 7702. [Emphasis added] A
remand on this crucial Civil Service
Reform Act and constitutional law
issue is indeed a very small price to
+ Set esen dee scnsne rato”
en
pay for assuring the honesty’ and
integrity of the federal personnal
system.
CONCLUSION
If we are to reach the "ideal
justice" this Court referred to in
Schapansky, Id. at 485, "secret
settlements" of federal employee
appeals of disciplinary actions must
be prohibited and the decision below
should be reviewed and reversed. For
these reasons, Petitioners request the
Court grant the writ of certiorari.
Respectfully submitted,
bh. fe
Dan M. Norwood
BYRD, COBB, NORWOOD, LAIT,
DIX & BABAOGLU
99 North Third Street
Memphis, TN 38103
(901) 523-0301
October 1986
CERTIFICATE OF SERVICE
I hereby certify that a copy of
the foregoing Petition for Writ of
Certiorari was sent by regular mail,
postage prepaid, this 16%4 day of
October, 1986.
Solicitor General
Department of Justice
Washington, D.C. 20530
Sandra Spooner
Commercial Litigation Branch
Civil Division
Department of Justice
2nd Floor, Todd Building
Washington, D.C. 20530
Dan M, Norwood (
APPENDIX
TABLE OF CONTENTS
Page
Decision of the Court
of Appeals for the Federal
CEEGMOES 6a sb deewecssadecess coed
Order Clarifying the
Decision of the Court of
Appeals for the Federal
et ee eee eee ee ee eee ee
Decision of the Merit
Systems Protectin Board...... 12
Decision of the Presiding
Official of the Merit
Systems Protection Board.....19
Order Denying Request to
ROOHON ROCOLG. .ccccccecccccccO4
Bergh v. DOT, FAA decision...65
8
ie eA AR ER PR HE
i
A-1
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
RAYMOND G. BADER
JIMMY N. HALE,
PHILLIP M. SANDERS,
and JOSEPH C.
WAGNER, JR.,
Petitioners,
V. Appeal
NO. 85-1115
MSPB Docket Nos.
ATO75281F1388
ATO75281F1403
ATO75281F1422
ATO75281F1429
DEPARTMENT OF
TRANSPORTATION,
FAA,
e*eeeneeeeeete +e + He + + + HF HF HF HF F
Respondent.
Decided: July 18, 1986
Before FRIEDMAN, Circuit Judge,
BENNETT, Senior Circuit Judge, and
BISSELL, Circuit Judge.
PER CURIAM.
DECISION
The decision of the Merit Systems
Protection Board, affirming the
A-2
petitioners’ removal by the Federal
Aviation Administration, Department of
Transportation are affirmed.
OPINION
1. Bader
Petitioner Bader brings’ this
appeal asking the court to order the
board to reopen the record below for
discovery concerning certain alleged
secret settlements® entered into
between the FAA and certain other air
traffic controllers with situations
allegedly similar to Bader. The
recent opinion of Bergh v. Department
of Transportation, FAA, App. No.
85-1102 (Ped. Cir. July 2, 1986),
Gecides this issue and prevents us
from granting Bader the requested
relief, even assuming that the issue
has been properly preserved for appeal
as ably briefed by counsel for
ee eee
petitioners.
2. Hale, Sanders, and Wagner
Petitioners Hale, Sanders and
Wagner, in addition to raising the
"secret settlements” issued disposed
of above, seek reversal on grounds’
that they were misled by FAA
officials, and on grounds that can
collectively be characterized as
confusion on the part of petitioners
as to their deadlines. Given our
precedents in Adams v. Department of
Transportation, FAA, 735 F.2d 488
(Ped. Cir.), cert. denied, 105 S. Ct.
432 (1984), amd Anderson v. Department
of Transportation, FAA, 735 F.2d 537
(Ped. Cir.), cert. denied, 105 S. Ct.
432 (1984), petitioners have each
failed to convince us _that_ the
decision appealed from was arbitrary,
capricious, an abuse of discretion, or
otherwise not in accordance with law,
;
.
A-4
was obtained without procedures
required by law, rule, or regulation
having been followed, and was
unsupported by substantial evidence.
5 u.S.c. § 7703(c) (1982); see Hayes
v. Department of the Navy, 727 F2d
1535, 1537 (Fed. Cir. 1984).
A-5
UNITED STATES COURT OF APPEALS
POR THE FEDERAL CIRCUIT
RAYMOND G. BADER, *
et al., °
*
Petitioners, *
*
* Appeal No.
* 85-1115
+ P
* ON MOTION FOR
* CLARIFICATION
*
DEPARTMENT OF *
TRANSPORTATION,FAA *
*
Respondent.
Before FRIEDMAN, Circuit Judge,
BENNETT, Senior Circuit Judge, and
BISSELL, Circuit Judge.
ORDER
Respondent moves for clarification
of the Court's unpublished opinion of
July 18, 1986, in this case to relect
that it disposes of the appeals of all
petitioners in Appeal No. 85-1115. The
motion states that Petitioner's
counsel agrees that this should be
made explicit by the Court.
A-6
The appeal in No. 85-1115 included
168 petitioners. Bader's appeal was
selected as the “lead case" on the
issue common to all petitioners
(discovery of alleged secret
settlements in similar cases), which
was decided in the court's July 18,
1986 opinion against Bader.
On March 12, 1985, the court
granted the motion of petitioners'
counsel, consented to by respondent,
designating four lead cases, including
Bader, App. No. 85-1115, and
suspending action to all others with
common issues, pending decision in the
lead cases. The pending motion makes
it clear that the parties now agree to
be bound as to all 168 petitioners by
the July 18, 1986 opinion of the court
in Bader, App. 85-1115. A list of the
petitioners is made a part hereof.
The motion is granted.
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A-7
FOR THE COURT
Date Marion T,. Bennett
Senior Circuit Judge
cc: Dan M. Norwood, Esq.
Sandra P. Spooner, Esq.
A-8
PETITIONERS
Baccus, Lindsey, C. Jr. ATO75281F1769
Bader, Raymond C. ATO75281F1388
Badgett, John N. III ATO75281F1236
Baker, Ronald G. ATO75281F1770
Ballard, Douglas E. ATO75281F1772
Bastin, Rickie R. ATO75281F1774
Belcher, Harold L. ATO75281F1775
Bennett, Catherine P. ATO75281F1776
Bennett, Larry W. ATO75281F1777
Bice, William R., Jr. ATO75281F1389
Bloodworth, Terry M. ATO75281F0014
Boyd, Christy E. ATO75281F1782
Boyd, William A., Jr. ATO75281F1391
Brock, Gary D. ATO75231F1784
Brooks, Ronald R. ATO75281F1785
Brown, James D. ATO75281F1786
Brown, Joseph W. II ATO75281F1787
Buchanan, Larry D. ATO75281F1789
Buck, Danny T. ATO75281F1790
Buck, Marvin R. ATO75281F1791
Bull, Donald L., Jr. ATO75281F0015
Butler, David H. ATO75281F1793
Caimotto, Terrence G. ATO75281F1794
Calhoun, John K. ATO75281F1392
Carden, Michael E. ATO75281F1796
Cary, Richard M. ATO75281F0078
Chase, Wayne S. ATO75281F1798
Coleman, Charles E. ATO75281F1803
Collins, Douglas A. ATO75281F1394
Copeland, Myra J. ATO75281F1804
Cosby, Jack H., Jr. ATO75281F1805
Cox, Ronald G. ATO75281F1807
Crocker, William E. ATO75281F1808
Crockett, Walter S. ATO75281F1395
Crouch, Charles M. ATO75281F1809
Currin, Robert L. ATO75281F1396
Cvitkovich, Carl A. ATO75281F1812
Dearing, James V. ATO75281F1817
Devall, Roger W. ATO75281F1239
Dillard, Curtis M. ATO75281F1820
Douglas, Nancy M. ATO75281F1822
Douglas, Woodie A.
Dyer, James C.
Eatwell, George E.
Egner, William E.
Elliot, George D. III
Embler, Donald M.
Farrar, Robert D.
Ferrer, Nancy T.
Fournier, Paul P.
Gilbert, Michael W.
Gilliland, Wm. R., Jr.
Glenn, James M,
Goninan, Joseph P.
Grayson, William V.
Green, Danny W.
Green, Glenn E. , Jr.
Greene, Carolyn F.
Grimes, David K.
Guest, Dixie
Guest, William M.
Hale, Jimmy N.
Hall, Kenneth D.,
Hall, Michael E.
Hammack, Stanley G.
Hanna, Richard F.
Higbee, Terrence J.
Hlavin, Warren E., Jr.
Hobson, Raymond T.
Holeman, Michael J.
Holliman, Billie J.
Holliman, Leonard
Hould, Larry M.
Howard, Eddie L.
Hudson, John W.
Huffman, Jerry M.
Jackson, Thomas D.
Jarvis, Joseph S., Jr.
Jones, Deverea''x B.III
Justice, Charles M.
Lepeard, Charles W.
Long, Frank L.
Loudakis, George
Lowrance, Linda §S,
ATO75281F1823
ATO75281F1824
ATO75281F1825
ATO75281F1827
ATO75281F1240
ATO75281F1241
ATO75281F1398
ATO75281F1829
ATO75281F1399
ATO75281F1243
ATO75281F1831
ATO75281F1401
ATO75281F1832
ATO75281F18 34
ATO75281F1835
ATO75281F1402
ATO75281F1836
ATO75281F1837
ATO75281F1838
ATO75281F1839
ATO75281F1403
ATO75281F1841
ATO75281F1842
ATO75281F1844
ATO75281F1244
ATO75281F1849
ATO75281F1850
ATO75281F1851
ATO75281F1405
ATO75281F1854
ATO75281F1855
ATO75281F1857
ATO75281F1858
ATO75281F1860
ATO75282F0017
ATO75281F1862
ATO75281F1863
ATO75282F0018
ATO75281F1866
ATO75281F1406
ATO75281F1407
ATO75281F1872
ATO75281F1248
A-10
Magee, Louie G.
Maloney, John M.
Marsh, Steven W.
Martel, Claude J.
Martin, Arthur W.
Martin, Helen J.
Martin, Michael W.
Massey, Mark W.
McCaa, Clifford O.
McCreight, John M. Jr.
McIntosh, Joseph M.
McKie, Jon W.
Mercer, Joe M., Jr.
Milsap, Jon D.
Moody, John W.
Morgan, Perry G.
Morris, Philip E.
Murray, Steven L.
Mynatt, Roy A., Jr.
Naanes, John M,
Nash, Thomas E.
Neighbors, Russell W.
Nellums, William R.
Nesbit, Timothy R.
Nevares, Jose R.
Nicholson, John F., Jr.
Nutt, Doyle T., Jr.
Odum, Virgil B., Jr.
Peden, Max S.
Pendley, Steven C.
Pirkle, Tony C.
Poston, Robert D.
Prewitt, Stephen E.
Pryse, William C.
Pumphrey, William D.
Rawls, Byron W.
Reed, Marshall R.
Render, Terrence M,
Reynolds, D. J.
Rickvalsky, William A.
Roberts, Kay P.
Rodgers, Ray N.
Ross, Leslie D.
ATO75281F1874
ATO75282F0106
ATO75281F1876
ATO75281F1877
ATO75281F1878
ATO75281F1249
ATO75281F1879
ATO75281F1409
ATO75281F1882
ATO75281F1883
ATO75281F1251
ATO75281F1885
ATO75281F1886
ATO75281F1889
ATO75281F1892
ATO75281F1528
ATO75281F1893
ATO75281F1893
ATO75281F1412
ATO75281F1413
ATO75281F1896
ATO75281F1897
ATO75281F1898
ATO75281F1899
ATO75281F1900
ATO75281F1902
ATO75281F1905
ATO75281F1906
ATO75281F1913
ATO75281F1914
ATO75281F2060
ATO75281F1918
ATO75281F1919
ATO75282F0118
ATO75281F1418
ATO75281F1920
ATO75281F1921
ATO75282F0021
ATO75281F1419
ATO75281F1924
ATO75281F1925
ATO75281F1926
ATO75281F1421
A-11
Rowsey, Wm. F., Jr.
Russell, Thurman D.,Jr.
Sanders, Philip M.
Sanford, Robert M.
Scheffell, Nathan R.
Scott, Edwin G.
Sedgwick, Ralph C.
Selvey, James R.
Stechfield, Daniel G.
Shell, David L.
Smith, Dennis C.
Sniegowski, Mark
Spurlin, Larry E.
Stallings, James M.
Stewart, George A.
Stewart, Glen W., Jr.
Sutton, Harry D.
Sykes, Don J.
Teems, Ronald J.
Tempelmeyer, Reginald
Titus, David C.
Wagner, Joseph C. Jr.
Walden, James V.
Walker, Jeffrey L.
Warren, Patricia H.
Watkins, Randall L.
Weaver, Buford R.
Webb, Jimmy W.
Weik, Gary J.
Welch, Earl M., Jr.
Welch, Larry W.
White, Ernest B., Jr.
Wichert, George C., Jr.
Wilder, John W.
Wilder, Stanley R.
Williams, Charles D.
Williams, Robert E.
Wright, Glenn T.
Young, Brenda M.
Young, Robert J.
Zauche, Stephen R.
ATO75282F0022
ATO75281F0023
ATO75281F1422
ATO75282F0024
ATO75281F1928
ATO75281F1423
ATO75281F1424
ATO75281F1929
ATO75281F2062
ATO75281F1930
ATO75282F0100
ATO75281F1935
ATO75281F19 36
ATO75282F007 3
ATO75281F1938
ATO75281F1940
ATO75281F1942
ATO75282F0026
ATO75281F1944
ATO75281F1427
ATO75281F1429
ATO75281F1948
ATO75281F1949
ATO75281F1951
ATO75281F1952
ATO75281F1953
ATO75281F1954
ATO75281F1956
ATO75281F1432
ATO75282F0027
ATO75281F1958
ATO75281F1959
ATO75281F1433
ATO75281F1434
ATO75281F1961
ATO75281F1435
ATO75281F1964
ATO75281F1966
ATO75281F1436
ATO74281F1968
A-12
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ATLANTA REGIONAL OFFICE
RAYMOND E. BADER, ET AL.* CASE NO.
*ATO75281F1388
HUGH A REYNOLDS, . CASE NO.
*ATO75281F0674
THOMAS G. PERRY and ad CASE NO.
*ATO75281F1471
ROGER DE VALL ad CASE NO.
*ATO75281F1817
*
V. .
*
DEPARTMENT OF TRANSPOR- *
TATION, FEDERAL AVIATION*
ADMINISTRATION, bd
OPINION AND ORDER
This case is before the Board on
petitions by the agency and by
appellant Roger W. DeVall. 1 The
agency asserts in its petitions that
the previsind official erred in
finding that it suspended appellants
during their removal notice periods
when it maintained them in a nonduty,
nonpay status from the dates of their
removal proposal notices until the
A-13
effective dates of their removals.
Upon consideratin of the agency's
petitions, the Board hereby GRANTS
review.
The Board held in Martel v.
Department of Transportation, MSPB
Docket No. BNO75281F0558 at 6-7, 11-12
(April 25, 1983), that in order to
meet his burden of establishing
jurisdiction over an alleged
suspension during the notice period
under 5 C.F.R. Section 1201.56(a)(2),
an appellant must prove by
preponderant evidence that the action
was involuntary and disciplinary in
nature, and that the employee was
ready, willing, and able to work
during the period of time in
question. The last of the three
Criteria cannot be established without
evidence tht the appellant contacted
an agency official with
bE OW elise EG TS roe CHOKE Tg
A-14
decision-making authority, in person
or otherwise, and unequivocally
notified the official that he was
ready, Willing, and able to return to
work. Id, at ll. Such a showing
effectively establishes, without
additional evidence, that the agency's
action or inaction in continuing to
maintain appellant in a nonduty,
nonpay status during the notice period
was involuntary on appellant's part
and disciplinary in nature on the
agency's part. Id. at 12.
In the instant cases, a thorough
review of the records shows nao
evidence that any appellant had
contacted an agency official and
unequivocally notified such official
that he was ready, willing and able to
work. The Board finds that appellants
were not entitled to be placed on a
duty and pay status during the notice
A-15
period.
Accordingly, the initial
decisions dated January 13, 1983 and
January 25, 1983 are REVERSED as to
the presiding official's finding that
the agency suspended appellants from
the dates of their respective notices
of proposed removals through the
effective dates of their removals.
Petitioner Roger W. DeVall
asserts that he has additional
evidence which the presiding official
declined to review because it was not
filed before the record closed. The
additional evidence consists of a
letter from the appellant to his
Congressman dated approximately one
month after the hearing, a character
reference letter from a co-worker and
the Congressman's response letters.
The contents of the letter to the
Congressman are elaborations of his
q
4
>}
defenses. Inasmuch as the appellant
had an opportunity at the hearing to
elaborate on his defenses, the letters
filed by the appellant do not
constitute new and material evidence
that, despite due diligence, was not
available when the record was closed.
Avansino V. U. S. Postal Service, 3
MSPB 308, 310 (1980).
Moreover, since the arguments
made in the appellant's letter to the
Congressman do not meet the criteria
for review set forth at 5 C.F.R.
Section 1201.115 2 , the Board hereby
DENIES the petition,
This is the final ordedr of the
Merit Systems Protection Board in
these appeals. The initial decisions
shall become final five (5) days from
the date of this order. 5 C.F.R.
Section 1201.113(b).
The appellants are hereby
tes Oe ty Re Pte BPD et es
a ee eS,
¥
bs
2
5
;
notified of the right under 5 U.S.C.
Section 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
PFederal Circuit, 717 Madison Place, N.
W., Washington, D.C. 20439. The
petition for judicial review must be
filed no later than thirty (30) days
after the appellant's receipt of this
order.
Date Robert E. Taylor
Secretary
Washington, D. C.
}
:
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A-18
FOOTNOTES
1. Appellant Hugh A. Reynolds was
employed at Jackson, Mississippi, and
appellant Thomas C. Perry was employed
at West Memphis, Arkansas. Perry's
appeal was appropriately submitted to
the Board's Dallas Regional Office,
but on motion of the appellant, venue
was changed. The appeals of other
appellants whose appeals were included
in the consolidated hearing (Raymond
E. Bader, et al. v. Department of
Transporatation, Federal Aviation
Administration) are addressed in
separate decisions.
2. The appellants denied receiving
the notice from the agency that a
strike was in progress and the agency
furnished no evidence showing that
delivery of the notices was effected.
3. A message to return a telephone
call was left with the appellant's
wife on August 2, 1981.
4. Because the Board lacks
jurisdiction over back pay issues, I
make no finding with respect to that
matter. See Ritchey v. U. S. Postal
Service, MSPB Dkt. No. PHO/752801054
(April 2, 1982). Pursuant to 31
U.S.C. § 71, back pay disputes are to
be resolved by the Office of the
Comptroller General.
5. As modified by § 127 of the
Federal Cout Improvement Act of 1982,
to be codified at 28 U.S.C. §
1209(a)(9).
A-19
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ATLANTA REGIONAL OFFICE
IN THE MATTER OF: *
*
RAYMOND E. BADER, ”
ET AL, *
* DECISION NUMBER:
Appellants, * See Attachment A
* Date:
* Jan. 13,1983
V *
*
DEPARTMENT OF .
TRANSPORTATION, .
FEDERAL AVIATION ad
ADMINISTRATION, . |
*
Agency. °
INTRODUCTION
By separate petitions, the appellants
submitted timely appeals to the
Atlanta Regional Office of the Merit ;
Systems Protection Board. The appeals
are from administrative actions taken 3
by the Federal Aviation Administration
(FAA) which resulted in the removal of
each appellant from the position of
Air Traffic Control Specialist at the
Air Route Traffic Control Center,
Memphis, Tennessee.
Because the issues are substantially
the same, the appeals have been
consolidated. > @.8.€. §$ 77O0lC8)(1)3
5 C.P.R. § 1201.36(a)(1). Each
appellant requested a hearing and a
hearing on the consolidated appeals
was held on October 18, 19, 20, and
21, 1982, at Memphis, Tennessee.1
A-20
At the time of the removal action,
each appellant was an employee as
defined by 5 U.S.C. § 7511(a)(1)(A)
and a removal is an action covered by
> @.8.C. § Ffakhea Accordingly, the
appeals were accepted for adjudication
on the basis that they are within the
appellate jurisdiction of the Merit
Systems Protection Board. > U.8iC.
7513(d) and 5 U.S.C. § 7701.
FINDINGS OF FACT AND CONCLUSIONS
The burden of proving the charges on
which an adverse action is based rests
with the agency taking such action and
the agency decision must be supported
by a preponderance of the evidence. 5
0.8.C. § TIVICSE) (LICR): F C.FR. F
1201.56(a)(ii). This standard must be
applied to every element of proof of
the agency's case. See In Re:
William F. Van Sciver, 1 MSPB 94
(1979). The agency must establish
that the action was taken for such
cause as will promote the efficiency
of the service and that the
disciplinary sanctions imposed are for
reasons relevant to this’ standard.
Douglas Vv. Veterans Administration,
MSPB Dkt. No. ATO/5299006 (April 10,
1981). The appellants have the burden
of proof with respect to any
affirmative defenses described in 5
U.S.C. § 7701(c)(2). See 5 C.F.R. §
120i .26(D) .
Each appellant was advised in a
written notice of his proposed
removal, based on the following
reasons:
Reason 1: Violation of 5
U.S.C. § 7311 which states
A-21
in pertinent part, "an
individual may not accept or
hold a position in the
Government of the United
States if he ...participates
in a strike against the
Government of the United
States..." and 18 U.S.C. §
1918 . Which makes
participation in a_- strike
against the Government of
the United States a crime
for which a sentence of
imprisonment can be imposed.
Reason 2: Unauthorized
absence.
In a specification set out under
Reason l, the agency noted that
beginning at approximately 7:00 a.m.
FDT, on August 3, 1981, a nationwide
strike by air traffic controllers
occurred; noted the time and date each
first failed to report for duty; and
concluded that because each appellant
had failed to report for his scheduled
tour of duty on or after August 3,
1981,to the date of the notice, that
employee participated in a_ strike
against the United States.
In a specification set out under
Reason 2, each appellant was advised
of the time and date his unauthorized
absence commenced based on his failure
to report for his scheduled tour of
duty. The specification noted that
each had been sent a notice that an
illegal strike was in progress, and
that he must return for duty; but that
each failed to return to duty.2 The
Board has taken official notice
(subject to refutation) of the fact
that a strike called by the now
A-22
decertified Professional Air Traffic
Controllers Organization (PATCO)
commenced on August 3, 1981, and
continued through August 6, 1981, and
that the strike was illegal. Ketchem
v. Department of Transportation, MSPB
Dkt. No. DAO75281F0/713 (May 28, 1982).
In support of the charges concerning
each appellant, the agency furnished
copies of agency personnel logs
(facility sign-in sheets) and Memphis
Tower Personnel Schedules reflecting,
in pertinent part, (for the period of
August 3, 1981 through approximately
August ll, 1981) that each appellant
was scheduled for a shift assignment
Or assignments during that period of
time, but that each failed to report
for his or her shift assignment.
The appellants have not refuted the
fact of the strike as officially
noticed by the - Board in Ketchem,
Supra. In iight of the appellant's
undisputed absences from scheduled
shift assignments during the period of
August 3, 1981 through August 6, 1981,
I find that such absences constitute
prima facie evidence of the
appellants’ voluntary participation in
the strike.3 Thus, the burden. of
persuasion now shifts to the
appellants to rebut the agency's case
by presenting evidence showing a lack
of knowledge as to the existence of
the strike or that their absence was
due to some reasons other than
intentional participation in the
strike. Schapansky v. Department of
Transportation, MSPB Dkt. No.
DA075281F1130 (October 28, 1982).
Facility Chief Phillip L. Lofton
testified that as a result of a
A-23
Presidential decree (Agency Hearing
Exhibit No. 6), striking emloyees were
allowed to return to work if they
reported for their first scheduled
shift on or after 11:00 a.m. EDT on
August 5, 1981. Lofton also
testified that prior to the strike,
all employees were advised in
briefings by team supervisors and in
briefings he conducted, that
participation in a strike against the
Government was proscribed activity and
that, in the event of a strike, all
leave would be cancelled. (Tr.
103-104). Lofton added that on July
27, 1981, Facility Order No. 7110.60,
the Memphis Tower Job Action Plan
(Agency Exhibit No. ll and also
included under Tab 13 of the file
furnished by the agency regarding each
appellant) was issued, distributed,
and posted, as required reading by all
employees. He added that supervisors
also briefed employees concerning the
requirements of that Facility Order,
notified employees that in the event
of a job action [strike], all leave
would be cancelled and that employees
would be expected to contact or to
report to the facility immediately,
regardless of past schedules or
regular days off (RDO'S).
Lofton testified that all but three
appellants (Hale, Ross, and Williams)
were briefed on Facility Order No.
7110.60 and that because those three
had not been briefed on the Order the
provisions of the Order were not
applied to them.
That each appellant failed to report
for the shift assignment as set out in
his notice of proposed removal and
that each remained absent through the
A-24
time and date of his or her agency
determined deadline is undisputed.
Further, the evidence, as reflected in
the testimony of Lofton, reveals that
none of the appellants contacted the
tower or reported for duty prior to
the deadline efforded striking
employees as the result of the
Presidential decree. The undisputed
evidence also shows that none of the
appellants, except Collins, Hale,
Sanders, Welch, and Wagner, offered
any explanation for their absences.
Other appellants did claim in their
February 24, 1982 submissions which
included affirmative defenses, that
leave during the week of August 3 was
an issue, but furnished no evidence in
support of that contention.
Because of the operational emergency
brought about by the strike, in which
a majority of the employees failed to
report for scheduled shift
assignments, it was within the
agency's authority to cancel
previously approved leave, in order to
alleviate the disruptive effect on the
agency's ability to meet its
responsibility for aviation safety.
With respect to appellant Collins, the
uncontroverted evidence shows that he
failed to report for scheduled shifts
on August 3, 4, and 5, 1981, but that
because his first scheduled shift
after the Prsidential deadline did not
commence until August 8, 1981, he had
until that date to report. The
unrefuted evidence also shows’ that
Collins had previously scheduled
annual leave for August 8, 1981, but
that on July 28, 1981, he had been
notified in a supervisory briefing on
Pacility Order No. 7110.60 that in the
A-25
event of a job action, any approved
leave would be cancelled. (TR.
98-99). Collins furnished no
explanation for his failure to report
for his August 3 through August 5,
1982 assigned shifts. Further,
because of Facility Order No. 7110.60,
the appellant knew, or should have
known, that any approved leave had
been cancelled.
With respect to appellant Hale, the
evidence shows that he originally had
approved annual leave and regular days
off from July 17, 1981 through August
9, 1981. The evidence also shows that
because Hale was absent on approved
leave at the time of the issuance of
Facility Order No. 7110.60 and the
briefing on that Order, he was allowed
until August 10, 1981 to report for
work (his next regularly scheduled
shift) but that he failed to report on
that date. Accordingly, Hale was
charged with unauthorized absence and
strike participation commencing August
10, 1981.
Lofton testified (Tr. 259-260) that
based on his’ review of notes. of
telephone calls to the facility, Hale
telephoned on August 7, 1981; talked
with Deputy Chief Schasser who
requested the appellant to report for
work on August 10; that the appellant
gave an affirmative response to
Schasser's request; and that the
appellant was notified that he was
considered AWOL and a strike
participant.
Hale testified that while he was on a
camping trip he learned of the
strike. He acknowledged that he
telephoned and talked with Schasser on
A-26
August 7, 1981 but denied that
Schasser told him to report for work
on August 10, 1981; and, at the
hearing, for the first time, claims
that his failure to report on August
10, 1981 was because Schasser told him
in the August 7 telephone conversation
that the appellant's termination
papers were being processed. Because
the appellant had not previously
raised the issue of deception and
misinformation with the agency, in his
petition of appeal to the Board, or as
an affirmative defense in compliance
with the Board's February 4, 1982
Order requiring that such claims be
filed with the Board by February 25,
1982, I find that the appellant's
explanation lacks credibility. The
appellant acknowledged that Schasser
told him he could come in on August
10, 1982, and talk, but furnished no
explanation why he did not_~ take
advantage of such an offer. I find
this incredible in light of the fact
that the appellant essentially claims
he was not a striker.
The appellant was scheduled to work on
August 10, 1981 following the
expireation of his approved leave, but
did not report. The appellant does
not contend that Schasser told him he
could not report for work on August
10, 1981. In my view, the more
credible explanation is that Hale's
absence, commencing on August 10,
1981, was in support of the strike,
and I so find. Appellant Sanders was
charged with AWOL and strike
participation commencing at 1:00 p.m.
on August 3, 1981. The evidence,
concerning Sanders, reflects that he
had leave scheduled for August 3 and
4, 1981, but that as a result of the
A-27
strike, Sanders' leave was
automatically cancelled in accordance
with Facility Order 7110.60. In his
response to agency interrogatories,
Sanders acknowledged that on August 3,
1981, he was aware that a strike was
in progress. Lofton's testimony that
Sanders was briefed on Facility Order
7110.60 was not disputed by Sanders.
Accordingly, Sanders knew, or should
have known, that his leave was
cancelled and of his obligation to
report for work or contact the
facility.
Appellant Welch (whose
agency-determined deadline was August
6, 1981, at 3:15 p.m.) was charged
with AWOL and strike participation
commencing at 6:45 a.m.. on August 3,
1981. In his response to the notice
of proposed removal, Welch claims that
he had approved annual leave _= and
regular days off from August 4 through
August 12, 1981, but furnished no
explanation for his August 3 absence,
nor did he furnish any explanation
concerning August 3 in his statement
of issues, facts and affirmative
defenses which was filed in response
to the February 4, 1982 Order by the
Board's Atlanta Regional Office. It
is noted that in his May 27, 1982
response to agency interrogatories,
(which was submitted by the agency)
the appellant claimed that he was
scheduled for a familiarization flight
on August 3, 1981. However, the
evidence does not show, and the
appellant does not claim, that he took
e familiarization flight on that date.
Thus, Welch's August 3 absence from
work is unexplained. Further, the
undisputed evidence reflects that that
A-28
appellant was briefed on Facility
Order No. 7110.60 and, therefore,
knew, or should have known, that his
annual leave commencing on August 4,
1981 was cancelled.
Appellant Wagner was charged with AWOL
and strike participation commencing at
11:00 p.m. on August 4, 1981.
Wagner's agency-determined deadline
was August 8, 1981, at 4:00 p.m. The
evidence, with respect to Wagner,
reveals that he had annual leave
scheduled for August 3, 1982, but as a
result of Facility Order No. 7110.60,
that leave was cancelled by the agency
when the strike occurred. The
appellant testifed that he was out of
town on August 3 and 4 and that he
returned to Memphis oon August 6,
1982. He claims that on August 2,
1982 he obtained approval for annual
leave on August 4, 1982, but furnished
no evidence to corroborate that
claim. Contrary to the appellant's
assertion, the agency's shift
assignment schedules (watch schedules)
and personnel logs do not reflect that
he had obtained leave approval from
his scheduled shift assignment
commencing at 11:00 p.m. on August 4,
1981. The appellant acknowledged that
he was aware, on August 3, 1981, that
a strike was in progress but that he
did not contact thefacility as
directed (TR. 755-756) and that he did
not attempt to return to work
thereafter (Tr. 757). He acknowledged
that he participated in a strike (Tr.
760) and that a facility order had
been issued cancelling leave in the
event of a strike (Tr. 762).
Thus, the evidence shows that as a
result of the facility order
cancelling leave, the appellant's
A-29
leave had been cancelled and that the
appellant knew of his’ responsibility
to report to the facility, but failed
to report.
While the evidence shows that agency
guidelines and advice concerning
deadlines may have been interpreted
differently by various facility
chiefs, the evidence showed that each
facility chief equitably applied the
guidelines at his facility. Thus, the
fact that the Jackson, Mississippi
Facility Chief determined that
employees' dealines occurred after any
previously approved leave had expired
does not mean that other facility
chiefs were required to adopt that
policy.
The appellants argued that they
considered themselves terminated as of
11:00 a.m. EDT on August So, sPeLe
based on the President's August 3,
1982 message. The appellants also
claim that the agency was remiss in
failing to notify them of an extended
deadline to return to work as a result
of the Presidential "amnesty" or that
there was confusion concerning
deadlines.
Any reporting deadline confusion by
the appellants could have been avoided
or resolved by reporting to or
contacting the facility by 11:00 a.m.
on August 5, 1982, if the appellants
in fact perceived that to be their
reporting deadline; however, none of
the appellants elected to pursue such
a course of action. While the agency
did not communicate to each appellant
his specific deadline which was based
on its liberal construction and
application of President Reagan's
A-30
48-hour "amnesty", the agency was
under no obligation to convey that
information. Each appellant's absence
was a matter of his individual
choice, It was not the agency's
responsibility to seek out and attempt
to persuade each appellant to report
for work. Thus, I find that those
appellants who now contend that they
failed to report for duty because of a
confusion about a deadline, if there
was in fact confusion, did so as the
result of their own irresponsibility
and not the result of any agency
nonfeasance,
Based on the appellant's established
unauthorized absences and the rima
facie case of strike participation
which the appellants have not
successfully rebutted, I find that the
preponderance of the evidence supports
the charges. Because the evidence
discloses that once an employee missed
his reporting deadline, the employee
was not, or would not be permitted to
return to dutt, absent an acceptable
excuse for being absent, I conclude
that the chargeable unauthorized
absence and strike participation
extended only through the deadline for
each employee.
ith respect to appellants Hale and
Williams, I find that their chargeable
absences which commneced after August
6, 1982, but while strike related
activities, such as picketing
continued, also constituted strike
participation because of their
unauthorized absences during a period
of time in which the evidence shows
they could have returned and were
expected to report for work because of
their schedules.
A-31
The appellants contend that the agency
committed certain procedural errors..
An agency's decision may not. be
sustained if it is shown that harmful
error in the application of the
agency's procedures at arriving at
such a decision occurred. 5 U.S.C. §
7701(c)(2)(A). The burden is upon an
appellant to establish, as an
affirmative defense, that there was
error and that it was harmful. Parker
v. Defense Logistics Agency, 1 MSPB
489, 492 (1380) Harmful error is
defined in the Board's regulations 5
C.F.R. § 1201.56(c)(3) as “error which
might have caused the agency to reach
a conclusion different than the one
reached.* In deciding whether’ such
error rises to that standard, the
Board found that it is helpful to
consider:
"whether it was within the
range of appreciable
probability that the error
had a harmful effect upon the
outcome before the agency.
However stated, the decisive
factors are the closeness of
the agency's decision, the
centrality of the issue
affected by the error, and
any steps taken to mitigate
the effect of the error."
Id. at 493.
The appellants first claim that they
were improperly denied 30 days'
advance notice of the proposed removal
actions. The law provides that an
employee against whom an action is
porposed is entitled to at least 30
days’ advance written notice, unless
there is reasonable cause to believe
A-32
the employee has committed a crime for
which a sentence of imprisonment may
be imposed. 5 U.8.C. § 73513(5)(1).
Because 18 U.S.C. § 1918 provides that
participation in a strike against the
United States is a felony, punishable
by up to one year of imprisonment, and
because the appellants were absent
without authorization or notice from
work during the strike, the agency had
reasonable cause to believe the
appellants had committed a crime for
which a sentence of imprisonment might
be imposed. Thus, the agency's
invocation of 5 U.S.C. § 7513(b)(1)
was justified and I find no error with
respect to this matter. Schapansky,
Supra at 8.
The appellants furnished no evidence
in support of their claim that
statutes prohibiting strikes by
federal employees are unconstitutional
and the Board has concluded
Otherwise. Ketchem, supra, at 5, with
pertinent case law citations at
footnote 12.
The appellants also contend that they
were improperly denied a minimum of 7
days in which to orally respond to the
charges. An employee against whom an
adverse action is proposed is entitled
to a reasonable time, but not less
than 7 days, to answer orally and in
writing and to furnish affidavits and
other documentary evidence in support
of the answer. 5 U.S.C. § 7513(b)(2).
A review of the record reveals that in
most cases, oral responses by the
appellants were heard by the agency
official on the seventh day or later,
after receipt of the notice of
proposed removal 5. In Parker, supra,
A-33
at 492, the Board, in keeping with
Congressional intent as to when
procedural error is to be considered
to be reversible error, found that the
statute clearly places upon the
appellant the burden of establishing
as an affirmative defense that the
agency committed procedural error and
that the error was harmful.
In Ratley vs. Department of the Army,
MSPB Dkt. No. ATO7528110338 at “45,
(September 17, 1982), the Board held
as follows:
Because 5 U.S.C. § 7513(b)(2)
provides that an employee
must have at least 7 days to
respond to an agency charge,
any shorter period of time is
inherently unreasonable -= and
violates the requirements
mandated by statute and is
thus not in accordance with
law. (footnote omitted).
Ratley can be read as holding that
less than seven days to reply to an
advance notice is per se _ harmful
procedural error because seven days is
mandated by law. Upon examination of
the law and Board Orders, however,
Ratley stands as inconsistent.
Nowhere in the law are procedural
errors reversible errors because they
are "not in accordance with the law".
It iS the agency's decision to take
disciplinary action that cannot be
Sustained by the Board if it is not in
accordancce with law. > U.8¢. §
7701(c)(2)(C). Within that same
section of the statute, Congress
provides that agency decisions cannot
be sustained if the appellant shows
A-34
harmful error in procedures used to
effect the action. 5 U.8.C. §
7701(c)(2)(A). If errors in
procedures mandated by statute are
considered harmful per se, absurd
results could ensue. For example,
when an agency does not give an
employee specific reasons for an
imposed disciplinary action, but the
record shows that the appellant was
aware of ‘the reasons for the
discipline, or if an agency gives an
employee only 29 days rather than the
Statutorily mandated 30 days' advance
notice. Cf. Cade v. U.S. Postal
Service, MSPB Dkt. No. SF07528010370
(November 30, 1981) (the Board found
that a failure to afford the appellant
the full period of time required is
not reversible error absent a showing
of harmful error by the appellant);
Gallego Vv. Department of the Navy,
MSPB Dkt. No. SFO7528110759 (July 21,
1982) (shortening the notice period by
seven days was error but that it did
not warrant reversal of the removal
action under 5 U.S.C. §
7701(c)(2)(A)).
While twenty nine of the appellants
plead harmful error with respect to
the fact they received less than seven
days to make an oral reply, they have
not shown harm. Accordingly, I find
that any shortened oral response
period had no effect on the agency
decision and, therefore, conclude that
such does not constitute harmful
error.
The next claim of harmful error made
by the appellants is that they were
unlawfully suspended during the
pendency of the removal actions. The
agency acknowledged that the
A-35
appellants were placed in a non-duty
and non-pay status during the notice
period.
A "suspension" is defined as_ the
placing of an employee in a temporary
Status without duties and pay for
disciplinary reasons. > U.88. 86
7501(2) and 7511(2). It is apparent
that the agency considered it contrary
to its best interest to return the
appellants to a duty status during the
notice period. However, the agency
has offered no explanation for failing
to retain the appellants in a pay
Status. A suspension of more than 14
days must be taken in accordance with
the procedures set out in 5 U.S.C. §
7513 which includes, inter alia, an
advance written notice and a right vo
reply to the proposed action. It is
clear from the record that the agency
did not furnish the appellants with a
notice of proposed suspension’ nor
furnish them with an opportunity to
reply thereto. Accordingly, I find
that the agency's de facto suspension
actions were effected without regard
for the requirements of 5 U.S.C. §
7513 one therefore, cannot be
sustained. See Cuellar v. U.S.
Postal Service, MSPB pet. No.
SF075299045 (November 13, 1981).
The appellants also contest the fact
that they were denied requests’ for
extensions of time in which to provide
their responses to the proposed
removal actions, but provided only
Speculation of harmful error in that
regard. Thus, the appellants have
failed to carry the burden of proof
With respect to the claim of harmful
error in connection with that matter.
Nevertheless, on my review of the
A-36
record, the claims made by the
appellants, and the circumstances
wherein the majority of the facility's
workforce was absent from scheduled
shifts, I find that the appeliants
were afforded a reasonable time to
review the material relied on to
Support the proposed removals and to
respond to the proposed actions.
Accordingly, I find no error with
respect to the agency's decision to
deny these requests for time
extensions.
The appellants also claim harmful
error based on the fact that their
requests for certain documentary
material, during and after their oral
presentations, was not then provided.
However, the appellants have not shown
how that material, some of which had
been previously furnished or _ made
available and some of which was
subsequently obtained through
discovery proceedings, would have had
any effect on the agency decision.
Accordingly, I find no error with
respect to this matter. Even if it
was error, it is not shown to be
harmful.
The appellants next claim that the
agency evidence concerning the
charges, should have been limited, at
the hearing, to that material and
evidence provided prior to the
hearing.
A proceeding before the Board is a de
novo proceeding, and the Board may
consider all the relevant evidence
presented by both parties. Nothing in
the law or in the Board's regulations
restricts an agency to reliance upon
its documentary administrative
A-37
record. ziess Vv. Veterans
Administration, MSPB Dkt. No.
NY075209017 (September 1, 1981). See
also Chavez v. Office of Personnel
Management, MSPB Dkt. No. DA8&31L09003
at 1?-14 (May 28, 1981). Thus,
contrary to the appellant's claim, the
agency evidence of picketing activity,
PATCO membership, and strike support
activities constituted admissible
evidence relating to strike
participation,
The appellants also contend that the
removal actions were pre-determined as
the result of statements by public
officials, including President Reagan,
that strikers would be fired.
However, the evidence shows that each
appellant was afforded the opportunity
to respond to the charges against him,
but that few furnished any explanation
for their absences, The evidence, as
reflected by the testimony of Lofton,
reveals that individual consideration
was given to each appellant's case and
that Lofton had the authority to
decide each case based on individual
circumstances, Thus, the appellants’
assertion that the actions were
pre-determined is not supported by the
evidence presented.
The appellants contend that the agency
actions against them constituted a
prohibited personnel practice,
specifically claiming that they were
treated unequally when certain
employees were allowed to return to
work, because of varying deadlines,
However, the appellants have not
pointed out any instance where
Similarly situated emloyees were
treated differently; i.e., there is no
evidence showing that any employees
A-38
not taking advantage of the
Presidential “amnesty” were allowed to
return to work. Thus, the appellants'
have failed to show unequal or
disparate treatment.
Contrary to the appellant's claim, the
evidence presented does not reveal the
removal actions were a violation of
the Merit System principles set out
in 5 U.S.C. § 2301. Any failure of
the agency to consider appellants'
work performance, ability, aptitude,
and general qualifications, is of no
consequence since those matters are
irrelevant to the charges on which the
removal actions were based. The
appellants also claim that the removal
actions were taken against them as
reprisal for their disclosure of
violations of laws, rules, and
regulations; mismanagement; gross
waste of funds; abuse of authority;
and substantial danger to public
safety. However, the evidence, as
revealed in the testimony of agency
officials, reveals the sole reasons
for the removal actions were as set
out in the letters of proposed
removal, specifically, AWOL and strike
participation. Accordingly, I find
no merit in the appellants' claim of
reprisal.
The appellants also claim that the
agency prohibition against their
reemployment with the agency and their
inability to compete with others for
employment, because of the stigma of
their removal, constitutes a
prohibited personnal practice;
however, those matters are not subject
to my review in this decision.
Contrary to the appellants’ assertion,
I find that any subsequent settlement
A-39
of appeals concerning other former air
traffic controllers removed for
striking and AWOL is irrelevant to the
issues in the instant appeals.
Nexus may be presumed where there is a
"clear and direct relationship”
between such misconduct and both -the
"employees ability to accomplish his .
»- .« duties satisfactorily" and “the
agency's abitlilty to fulfill its
mission". Doe v. Hampton, 566 F,2d
265, 272, n. 20 (D.C. Cir. 1977); see
also Bonet v. U. S. Postal Service,
661 F.2d 1071, 1078 (5th Cir. 1961).
Because of the intentional disruptive
effect of the strike on the agency
mission, caused by the appellants'
absences in support of a strike, I
find no basis for mitigating’ the
penalty of removal, notwithstanding
the appellants’ prior favorable
employment record.
Removal of an air traffic controller
for proven participation in a strike
against the Federal government is an
appropriate penalty and promotes’ the
efficiency of the service. Johnson v.
Department of Transportation, MSPB
Dkt. No. SCOTSSOIEOSSS at 16 (November
10, 1982); Schapansky, supra, at
10-11. Since removal is found to be
appropriate in these cases, it is
unnecessary for me to determine the
correctness of the agency's assertion
that removal of a striking employee is
mandated by statute,
DECISION
The removal actions are AFFIRMED. The
agency is ORDERED to amend the records
to show each appellant in a pay status
A-40
from the date of the notice of
proposed removal through the effective
date of the removal action.
NOTICE
This decision is an initial decision
and will become a final decision of
the Merit Systems Protection Board on
February 17, 1982, unless a petition
for review is filed with the Board or
the Board reopens the case on its own
motion.
Any party to the proceeding, the
Director of the Office of Personnel
Management, and the Special Counsel
may file a petition for review of this
decision with the Merit Systems
Protection Board. The petition for
review must set forth objections to
the initial decision, supported by
references to applicable laws Or
regulations, and with specific
reference to the record.
The petitioin for review must be filed
with the Secretary of the Merit
Systems Protection Board, 1120 Vermont
Avenue,. N. W., Washington, 5.¢.
20419, no later than the date _ set
forth above.
After providing an opportunity for
response by other parties, the Board
may grant a petition for review when
it is established that:
(a) New and material
evidence is available that,
despite due diligence, was
not available when the record
was closed;
A-41
(b) The decision of the
presiding official is based
upon the erroneous
interpretation of statute or
regulation.
Pursuant to 5 U.S.C. § 7703(b) (1) 7,
the appellant has the right to seek
judicial review of the Board's final
decision on this appeal. A petition
requesting such review must be filed
with the U. S. Court of Appeals for
the Federal Circuit, 717 Madison
Place, N. W., Washington, D. C. 20005,
no later than 30 days after
appellant's receipt of the Board's
final order or decision.
For the Board:
S. F. VESSER
Presiding Official
ATTACHMENT A
Raymond G. Bader
William R. Bice, Jr.
William A. Boyd, Jr.
John K. Calhoun
Douglas A. Collins
Walter S. Crockett
Robert L. Currin
Robert D. Farrar
Paul P. Fournier
James M. Glenn.
Glenn E. Green, Jr.
Jimmy N. Hale
Michael E. Holeman
Charles W. Lepeard
Frank L. Long
Mark W. Massey
Perry G. Morgan
Roy A. Mynatt, Jr.
John M. Naanes
William D. Pymphrey
D. J. Reynolds
Leslie D. Ross
Phillip M. Sanders
Edwin G. Scott
Ralph C. Sedgwick
David C. Titus
Joseph C. Wagner, Jr.
Earl M. Welch, Jr.
John W. Wilder
Stanley R. Wilder
Robert E. Williams
Robert J. Young
ATO75281F1388
ATO75281F1389
ATO75281F1391
AT0O75281F1392
ATO75281F1394
ATO75281F1395
ATO75281F1396
ATO75281F1398
ATO75281F1399
ATO75281F1401
ATO75281F1402
ATO75281F1403
ATO75281F1405
ATO75281F1406
ATO75281F1407
ATO75281F1409
ATO75281F1528
ATO75281F1412
ATO75281F1413
ATO75281F1418
ATO75281F1419
ATO75281F1421
ATO75281F1422
ATO75281F1423
ATO75281F1424
ATO75281F1427
ATO75281F1429
AT0O75281F1432
ATO75281F1433
AT0O75281F1434
AT0O75281F1435
ATO75281F1436
A-43
FOOTNOTES
1. The name of each appellant to whom this dec
listed in Attachment A. The appeals of other
appeals were included in the consolidated
addressed in seperate decisions.
aa The appellants generally denied receiving
the agency that a strike was in progress
furnished no evidence showing that delivery of
effected.
3. For the reasons discussed infra, appe.
Williams, whose absences commenced after Augu
included.
4. A “familarization flight" is a practice in '
fly on a scheduled commercial flight for "fé
"training" purposes to better acquaint control
flight conditions.
5. At his request, appellant Phillip M. Sande)
was made one day after he received the nec
removal.
6. Because the Board lacks jurisdiction over bé
make no finding with respect to that matter. S
S. Postal Service, MSPB Dkt. No. PJO7528010154
Pursuant to 31 U.S.C. § 71, back pay disputes a)
by the Office of the Comptroller General.
7. As modified by § 127 of the Federal Court I)
1982, to be codified at 28 U.S.C. § 1209(a)(9).
A-44
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ATLANTA REGIONAL OFFICE
IN THE MATTER OF: *
7
RAYMOND E. BADER, *
et al, * Decision No:
* See Attachment
Appellants, * A
-
DEPARTMENT OF * pate: Jan 13,
TRANSPORTATION, * 1983
FEDERAL AVIATION bd
ADMINISTRATION sd
*
Agency. ®
INTRODUCTION
By separate petitions, the appellants
submitted timely appeals to the
Atlanta Regional Office of the Merit
Systems Protection Board. The appeals
are from administrative actions taken
by the Federal Aviation Administration
(FAA) which resulted in the removal of
each appellant from the position of
Air Traffic Control Specialist at the
Air Traffic Control Tower, Memphis,
Tennessee,
Because the issues are substantially
the same, the appeals have been
consolidated. 5 U.S.C. § 7701(£)(1);
5 C.F.R. § 1201.36 (a)(1). Each
appellant requested a hearing and a
hearing on the consolidated appeals
was held on October 18, 19, 20 and 2l,
1982 at Memphis, Tennessee,
A-45
JURISDICTION
At the time of the removal action,
each appellant was an employee as
defined by 5 U.S.C., § 7511 (a)(1)(A)
and a removal is an action covered by
6 U.S.C. § 7512. Accordingly, the
appeals were accepted for adjudication
on the basis that they are within the
appe'late jurisdiction of the Merit
Syst. .s Protection Board. 5 U.S.C. §
7513(d) and 5 U.S.C. § 7701.
PINDINGS OF PACT AND CONCLUSION
The burden of proving the charges on
which an adverse action is based rests
with the agency taking such action and
the agency decision must be supported
by a preponderance of the evidence. 5
U.S.C. § 7701(c)(1)(B); 5 U.S.C. §
1201.56(a)(ii). This standard must be
applied to every element of proof of
the agency's case. See In re:
William FP. Van Sciver, 1 MSPB 94
(1979). The Agency must establish
that the action was taken for such
cause as will promote the efficiency
of the service and that the
disciplinary sanctions imposed are for
reasons relevant to this standard.
Douglas v. Veterans Administration,
MSPB Dkt. No. ATO75299006 (April 10,
1981). The appellants have the burden
of proof with respect to any
affirmative defenses described in 5
U.S.C. § 7701(c)(2). See 5 C.F.R. §
1201.56(b).
Each appellant was advised ina
written notice of his proposed
removal, based on the following
reasons:
eee eee
A-46
Reason 1: Violation of 5
U.S.C. § 7311 which states in
pertinent part, "an
individual may not accept or
hold a position in the
Government of the United
States if he . e ;
participates in a strike
against the Government of the
United States ... and 18
U.S.C. § 1918 which makes
participation in a_-— strike
against the Government of the
United States a crime _ for
which a sentence of
imprisonment can be imposed.
Reason 2: Unauthorized
absence,
In a specification set out under
Reason 1, the agency noted that
beginning at approximately 7:00 a.m.
EDT, on August 3, 1981, a nationwide
Strike by air traffic controllers
occurred, noted the time and date each
first failed to report for duty; and .
concluded that because each appellant
had failed to report for his scheduled
tour of duty or or before August 3, |
1981, to the date of the notice that
employee participated in a strike
against the United States.
In a specification set out under
Reason 2, each appellant was advised
of the time and date his unauthorized
absence commenced based on his failure
to report for his scheduled tour of
duty. The specification noted that
each had been sent a notice that an
illegal strike was in progress and
that he must return for duty; but that
each failed to return to duty. 2 The
Board has taken official notice
A-47
(subject to refutation) of the fact
that a strike called by the now
decertified Professional Air Traffic
Controllers Organization (PATCO)
commenced on August 3, 1981, and
continued through August 6, 1981, and
that the strike was illegal. Ketchem
v. Department of Transportation, MSPB
Dkt. No. DAO/5281F0/713 (May 28, 1982).
In support of the charges concerning
each appellant, the agency furnished
copies of facility sign-in logs, shift
assignment sheets, and time and
‘attendance records reflecting, in
pertinent part, that each appellant
was scheduled for a shift assignment
Or assignments during the period of
August 3, 1981 through August 6, 1981,
but that the appellants failed to
report for a shift assignment or
assignments during that period of
time.
The appellants have not refuted the
fact of the strike as officially
noticed by the Board in Ketchemn,
Supra. In light of the appellants'
undisputed absences from scheduled
shift assignments during the period of
August 3, 1981 through August 6, 1981,
I find that such absences constitute
prima facie evidence of the
appellants’ voluntary participation in
the strike. Thus, the burden of
persuasion now shifts to the
appellants to rebut the agency's case
by presenting evidence showing a lack
of knowledge as to the existence of
the strike or that their absence was
due to some reason other than
intentional participation in the
strike. Schapansky v. Department of
Transportation, MSPB Dkt. No.
DAO75281F1130 (October 28, 1982).
A-48
Facility Chief William W. Parker
testified that as a result of a
Presidential decree (Agency Hearing
Exhibit No. 6), striking employees
were allowed to return to work if they
reported for their first scheduled
shift on or after 11:00 a.m. EDT on
August 5, 1981. Parker also testified
that employees were briefed in late
May and early June 1981 regarding a
letter from FAA Administrator Helms
about the illegality of a strike;
briefed again on approximately June
15, 1981 that striking was illegal and
that if a strike occurred, all leave
was cancelled; and that notices 3 were
issued and posted in required reading
locations and on bulletin boards, on
July 29 and 30, 1981, with attendant
supervisory briefings, notifying
employees that all leave was cancelled
in the event of a strike. Parker's
testimony concerning the briefings and
bulletins was unrebutted by the
appellants.
That each appellant failed to report
for the shift assignment as set out in
his notice of proposed removal and
that each remained absent through the
time and date of his or her agency
determined deadline is undisputed.
Further, the evidence, as reflected in
the testimony of Parker, reveals that
none of the appellants contacted the
facility for a shift assignment or
reported for duty prior to the
deadline afforded striking employees
as the result of the Presidential
decree.
The undisputed evidence also shows
that while some appellants attributed
their absences to being on approved
A-49
leave, most offered no explanation for
their absences. Because of the
briefings and notices to employees
that leave was cancelled in the event
of a strike, I conclude tha the
appellants knew, or reasonably should
have known, of their responsibility to
report for work or, to contact the
facility in the event of a strike.
The appellants who contend that leave
was an issue either admitted, in their
responses to interrogatories (Agency
Hearing Exhibit No. 10), that they
were aware a strike commenced on
August 3, 1981, or were among the
number of controllers observed
picketing during the first days of the
Strike. Thus, the undisputed evidence
shows that each of the appellants was
aware of the strike.
Although the appellants argue that
Parker was without authority to cancel
leave, I conclude otherwise. Because
of the operational emergency brought
about by the strike, in which a
majority of the employees failed to
report for scheduled shift
assignments, it was within the
agency's authority to cancel
previously approved leave, in order to
alleviate the disruptive effect on the
agency's ability to meet its l
responsibility for aviation safety.
While the evidence shows that agency
guidelines and advice concerning
deadlines may have been interpreted
differently by various facility
chiefs, the evidence shows that each
facility chief equitably applied the
guidelines at his facility. Thus, the
fact that the Jackson, Mississippi
Facility Chief determined that
employees' deadlines occurred after
A-50
any previously approved leave had
expired does not mean that other
facility chiefs were required to adopt
that policy.
Appellant Harry D. Sutton asserted
that he was unable to work during the
period of August 4 to August 8, 1981
because he was under the care of a
dentist and was taking prescription
drugs during that time.
The agency established August 5, 1981
at 3:00 p.m. as Sutton's deadline for
reporting to work. 4 Area Manager
James J. Quinn testified that he
observed Sutton picketing on August 6,
1981 (T. 670). Sutton did not testify
at the hearing but furnished, as a
post-hearing submission, a January 4,
1983 affidavit by Harold G. Stratton,
D.D.S. Stratton advised, in pertinent
part, that on July 4, 1981, he
prescribed Ananase 100 (an
anti-inflammatory to reduce swelling)
and Keflex 5090 (an antibiotic which
is a penicillin substitute). However,
Stratton did not advise that the
appellant's condition or medication
incapacitqted him from performing
controller duties. Significantly, in
his oral and written responses
furnished to the agency, the appellant
provided no explanation for his
failure to report for his August 5,
1981 shift assignment. Nor did the
appellant raise any medical claims in
his initial appeal to the Board.
Further, there is no evidence or
argument that the appellant sought
sick leave for August 5, 1981.
Accordingly, I find that the evidence
presented does not support Sutton's
Claim of incapacitation.
A-51
The appellants argue that they
considered themseives terminated as of
11:00 a.m. on August 5, 1981, based on
the President's August 3, 1981
message. The appellants also claim
that the agency was remiss in failing
to notify them of an extended deadline
to return to work as a result of the
Presidential “amnesty” or that there
was confusion concerning deadlines.
Any reporting deadline confusion by
the appellants could have been avoided
or resolved by reporting to or
contacting the facility by 11:00 a.m. ,
on August 5, 1981, if the appellants
in fact perceived that to be their
reporting deadline; however, none of
the appellants elected to pursue such
a course of action. While the agency
did not communicate to each appellant
his specific deadline which was based
on its liberal construction and
application of President Reagan's
48-hour “amnesty”, the agency was
under no obligation to convey that
information. It was not the agency's
responsibility to seek out and attempt
to persuade each appellant to report
for work. Thus, I find that those
appellants who now contend that they
failed to report for duty because of a
confusion about a deadline, if there
was in fact confusion, did so as the
result of their own irresponsibility
and not the result of any agency
nonfeasance.
Based on the appellants’ established
unauthorized absences and the prima
facie case of strike participation
Which the appellants have not
successfully rebutted, I find that the
preponderance of the evidence supports
the charges. Because the evidence
A-52
discloses that once an employee missed
his reporting deadline, the employee
was not, or would not be permitted to
return to duty, absent an acceptable
excuse for being absent, I conclude
that the chargeable unauthorized
absence and strike particpation
extended only through the deadline for
each employee.
The appellants contend tha the agency
committed certain procedural errors.
An agency's decision may not be
sustained if it is shown that harmful
error in the application of the
agency's procedures at arriving at
such a decision occurred. 5 U.S.C. §
7701(c)(2)(A). The burden is upon an
appellant to establish, as an
affirmative defense, that there was
error and that it was harmful. Parker
v. Defense Logistics Agency, 1 MSPB
’ . Barmful error is
defined in the Board's regulations at
5 C.P.R. § 1201.56(c)(3) as “error
which might have caused the agency to
reach a conclusion different than the
one reached.* In deciding whether
such error rises to that standard, the
Board found that it is helpful to
consider:
“whether it was within the
range of appreciable
probability that the error
had a harmful effect upon the
outcome before the agency.
However stated, the decisive
factors are the closeness of
the agency's decision, the
centrality of the issue
affected by the error, and
any steps taken to mitigate
the effect of the error." Id.
at 493.
A-53
The appellants first claim that they
were improperly denied 30 days'
advance notice of the proposed removal
actions. The law provides that an
employee against whom an action is
proposed is entitled to at least 30
days' advance written notice, unless
there is reasonable cause to believe
the employee has committed a crime for
which a sentence of imprisonment may
be imposed. 5 U.S.C. § 7513(b)(1).
Because 18 U.S.C. § 1918 provides that
participation in a strike against the
United States is a felony, punishable
by up to one year of imprisonment, and
because the appellants were absent
without authorization or notice from
work during the strike, the agency had
reasonable cause to believe the
appellants had committed a crime for
which a sentence of imprisonment might
be imposed. Thus, the agency's
invocation of 5 U.S.C. § 7513(b)(1)
was justified and I find no error with
respect to this matter. Schapansky,
Supra, at 8.
The appellants furnished no evidence
in support if their claim that
statutes prohibiting strikes by
federal employees are unconstitutional
and the Board has concluded
otherwise. Ketchem, supra, at 5, with
pertinent case law citations at
footnote 12.
The appellants also contend that they
were improperly denied a minimum of 7
days in which to orally respond to the
charges. An employee against whom an
adverse action is proposed is entitled
to a reasonable time, but not less
than 7 days, to answer orally and in
writing and to furnish affidavits and
other documentary evidence in support
of the answer. 5 U.S.C. § 7513(b)(2).
A-54
A review of the record reveals that in
most cases, oral responses by rhe
appellants were heard by the agency
official on the seventh day or later,
after receipt of the notice of
proposed removal. In Parker, supra,
at 492, the Board, in keeping with
Congressional intent as to when
procedural error is to be considered
to be reversible error, found that the
statute clearly places upon the
appellant the burden of establishing
as an affirmative defense that the
agency committed procedural error and
that the error was harmful.
In Ratley v. Department of the Army,
MSPB Dkt. No. ATO/52 338 at 5,
(September 17, 1982), the Board held
as follows:
Because 5 U.S.C. § 7513(b)(2)
provides that an employee must
have at least 7 days to respond
to an agency charge, any shorter
period of time is inherently
unreasonble and violates the
requirements mandated by statute
and is thus not in accordance
with law. (footnote omitted.
Ratley can be read as holding that
less than seven days to reply to an
advance notice is per se harmful
procedural error because seven days
is mandated by law. Upon examination
of the law and Board Orders, however,
Ratley stands as inconsistent.
Nowhere in the law are procedural
errors reversible errors because they
are "not in accordance with the law."
It is the agency's decision to take
disciplinary action that cannot be
Sustained by the Board if it is not in
A-55
accordance with law. 5 U.S.C. §
7701(c)(2)(C). Within that same
section of the statute, Congress
provides that agency decisions cannot
be sustained if the appellant shows
harmful error in procedures used to
effect the action. 5 U.S.C. §
7701(c)(2)(A). If errors in
procedures mandated by statute are
considered harmful per se, absurd
results could ensure. For example,
when an agency does not give an
employee specific reasons for an
imposed disciplinary action, but the
record shows that the appellant was
aware of the reasons for the
discipline, or if an agency gives an
employee only 29 days rather than the
statutorily mandated 30 days' advance
notice. Cf. Cade v. U.S. Postal
Service, MSPB Dkt. No. SF07528010370
(November 30, 1981) (the Board found
that a failure to afford the appellant
the full period of time required is
not reversible error absent a showing
of harmful error by the appellant);
Gallego v. Department of the Navy,
MSPB Dkt. No. SF07528110759 (July 21,
1982) (shortening the notice period by
seven days was error but that it did
not warrant reversal of the removal
action under 5 U.S.C. § 7701(c)(2)(A).
While twenty nine of the appellants
plead harmful error with respect to
the fact they received less than seven
days to make an oral reply, they have
not shown harm. Accordingly, I find
that any shortened oral response
period had no effect on the agency
decision and, therefore, conclude that
such does not constitute harmful
error.
A-56
The next claim of harmful error made
by the appellants is that theywere
unlawfully suspended during the
pendency of the removal actions. The
agency acknowledged that the
appellants were placed in a non-duty
and non-pay status during the notice
period.
A "suspension" is defined as the
placing of any employee in a temporary
Status without duties and pay for
disciplinary reasons. 5 U.S.C. §§
7501(2) and 7511(2). It is apparent
that the agency considered it contrary
to its best interest to return the
appellants to a duty status during the
notice period. However, the agency
has offered no explanation for failing !
to retain the appellants in accordance
with the procedures set out in 5
U.S.C. § 7513 which includes, inter
alia, an advance written notice and a
right to reply to the proposed
action. It is clear from the record
that the agency did not furnish the
appellants vith a notice of proposed !
suspension nor furnish them with an :
Opportunity to reply thereto. |
Accordingly, I find that the agency's
de facto suspension actions were
effected without regard for the
requirements of 5 U.S.C. § 7513 and, |
therefore, cannot be sustained.5 See
Cuellar v. U.S. Postal Service, MSPB
Dkt. No. SFO/75299045 (November 13,
198i).
The appellants also contest the fact
that they were denied requests’ for
extensions of time in which to provide
their responses to the proposed
removal actions, but provided only
speculation of harmful error in that
regard. Thus, the appellants’ have
A-57
failed to carry the burden of proof
with respect to the claim of harmful
error in connection with that matter.
Nevertheless, on my review of the
record, the claims made by the
appellants, and the circumstances
wherein the majority of the facility's
workforce was absent from scheduled
shifts, I find that the appellants
were afforded a reasonable time to
review the material relied on to
Support the proposed removals and to
respond to the proposed actions.
Accordingly, I find no error with
respect to the agency's decision to
deny these requests for time
extensions.
The appellants also claim harmful
error based on the fact that their
requests for certain documentary
material, during and after their oral
presentations, was not then provided.
However, the appellants have not shown
how that material, some of which had
been previously furnished or _ made
available and some of which was
subsequently obtained through
discovery proceedings, would have had
any effect on the agency decision.
Accordingly, I find no error with
respect to thismatter. Even if it was
error, it is now shown to be harmful.
The appellants next claim that the
agency evidence concerning the
charges, should have been limited, at
the hearing, to that material and
evidence provided prior to the
hearing.
A proceeding before the Board is a de
novo proceeding, and the Board may
consider all the relevant evidence
presented by both parties. Nothing in
SEES see
A-58
the law or in the Board's regulations
restricts an agency to reliance upon
its documentary administrative
record. ziess Vs Veterans
Administration, MSPB Dkt. No.
NY075209017 (September 1, 1981). See
also Chavez Vv. Office of Personnel
Management, MSPB Dkt. No. DA831L09003
at 13-14 (May 28, 1981). Thus,
contrary to the appellants' claim, the
agency evidence of picketing activity,
PATCO membership, and strike support
activities constituted admissible
evidence relating to strike
participation.
The appellants also contend that the
removal actions were pre-determined as
the result of statements by public
officials, including President Reagan,
that strikers would be fired.
However, the evidence show that each
appellant was afforded the opportunity
to respond to the charges against him,
but that few furnished any explanation
for their absences. The evidence, as
reflected by the testimony of Parker,
reveals that individual consideration
was given to each appellants' case and
that Parker had the authority to
decide each case based on individual
circumstances. Thus, the appellants'
assertion that the actions were
pre-determined is not supported by the
evidence presented.
The appellants contend that the agency
actions against them constituted a
prohibited personnel practice,
specifically claiming that they were
treated unequally when certain
employees were allowed to return to
work, because of varying deadlines.
However, the appellants have not
pointed out any instance where
A-59
similarly situated employees were
treated differently, i.e., there is
not evidence showing that any
employees not taking advantage of the
Presidential "amnesty" were allowed to
return to work. Thus, the appellant's
have failed to show unequal Or
disparate treatment.
Contrary to the appellants' claim, the
evidence presented does not reveal the
removal actions were a violation of
the Merit System principles set out in
5 U.S.C. § 2301. Any failure of the
agency to consider appellants' work
performance, ability, aptitude, and
general qualifications, is of no
consequence since those Matters are
irrelevant to the charges on which the
removal actions were based. The
appellants also claim thatthe removal
actions were taken against them as
reprisal for their disclosure of
violations of laws, rules, and
regulations, mismanagement, gross
waste of funds; abuse of authority;
and substantial danger to public
safety. However, the evidence, as
revealed in the testimony of agency
officials, discloses the sole reasons
for the removal actions were as set
out in the letters of proposed
removal, specifically, AWOL and strike
participation. Accordingly, I find no
merit in the appellants' claim of
reprisal.
The appellants also claim that’ the
agency prohibition against their
reemployment with the agency and their
inability to compete with others’ for
employment because of the stigma of
their removal, constitutes a
prohibited personnel practice;
however, those matters are not subject
A-60
to my review in this decision.
Contrary to the appellants' assertion,
I find that any subsequent settlement
of appeals concerning other former air
traffic controllers removed for
Striking and AWOL is irrelevant to the
issues in the instant appeals.
Nexus may be presumed where there is a
"clear and direct relationship"
between such misconduct and both the
"employees ability to accomplish
his...duties satisfactorily" and "the
agency's ability to fulfill its
mission." Doe v. Hampton, 566 F.2d
265, 272, n. 20 (D.C. Cir. 1977); see
also, Bonet v. U.S. Postal Service,
661 F.2d 1071, 1078 (5th Cir. 1981).
Because of the intentional disruptive
effect of the strike on the agency
mission, caused by the appellants'
absences in support of a strike, I
find no basis for mitigating the
penalty! of removal, notwithstanding
the appellants' prior favorable
employment record.
Removal of an air traffic controller
for proven participation in a strike
against the Federal government is an
appropriate penalty and promotes’ the
efficiency of the service. Johnson v.
Department of Transportation, MSPB
Dkt. No. DCO75281F0998 at 16 (November
10, 1982); Schapansky, supra, at
10-11. Since removal is found to be
appropriate in these cases, it is
unnecessary for me to determine the
correctness of the agency's assertion
that removal of a striking employee is
mandated by statute,
DECISION
A-61
The removal actions are AFFIRMED. The
agency iS ORDERED to amend the records
to show each appellant in a pay status
from the date of the notice of
proposed removal through the effective
date of the removal action.
NOTICE
This decision iS an initial decision
and will become a final decision of
the Merit Systems Protection Board on
February 17, 1983, unless a petition
for review is filed with the Board or
the Board reopens the case on its own
motion.
Any party to the proceeding, ' the
Director of the Office of Personnel
Management, and the Special Counsel
may file a petition for review of
this decision with the Merit Systems
Protection Board. The petition for
review must set forth objections to
the initial decision, supported by
references to applicable laws or
regulations, and with specific
reference to the record.
The petition for review must be filed
with the Secretary of the Merit
Systems Protection Board, 1120 Vermont
Avenue, N.W., Washington, D.C. 20419,
no later than the date set forth
above.
After providing an opportunity for
response by other parties, the Board
may grant a petition for review when
it is established that:
(a) New and material evidence is
available that, despite due
diligence, was not available when
the record was closed;
A-62
(b) The decision of the presiding
official is based upon an
erroneous interpretation of
statute or regulation.
Pursuant to 5 U.S.C. § 7703(b)(1)®,
the appellant has the right to _ seek
judicial review of the Board's final
decision on this appeal. A petition
requesting such review must be filed
with the U.S. Court of Appeals for the
Federal Circuit, 717 Madison Place,
N.W., Washington, a 20005, no
later than 30 days after appellant's
receipt of the Board's final order or
decision.
For the Board:
S. F. VESSER
Presiding Official
FOOTNOTES
i. The name of each appellant to whom this de
listed in Attachment A. The appeals of other
appeals were included in the consolidated
addressed in separate decisions.
Be The appellants generally denied receiving
teh agency that a strike was in progress
furnished no evidence showing that delivery of
effected.
2% Memphis Center Bulletin No. 33, dated Ju
Notice 1600.19 (Memphis Center's Job Action Pla
1981 (See Tab 13 of the file furnished by the
each appellant).
4, Because Stratton had scheduled regular day
August 3 and 4, 1981, he was charged with str
and AWOL commencing at 3:00 p.m. on August 5
regularly scheduled shift.
5. Because the Board lacks jurisdiction over b.
make no finding with respect to that matter. §
S. Postal Service, MSPB Dkt. No. PHO7528010154
Pursuant to 31 U.S.C. § 71, back pay disputes a.
by the Office of the Comptroller General.
6. As modified by § 127 of the Federal Court I:
1982, to be codified at 28 U.S.C. § 1209(a)(9).
A-64
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ATLANTA REGIONAL OFFICE
R.E. BADER, et
al, (Memphis, TN
ATCT & ARTCC)
Appellants,
T é
DEPARTMENT OF
TRANSPORTATION,
FEDERAL AVIATION
ADMINISTRATION,
+e et +t + FHF HF HF HF HF HF HF F
Agency.
ORDER
By a submission dated December ll,
1982, the attorney for the
above-referenced appellants moved for
reconsideration of the decision to
deny appellants' request that the
record be re-opened for the
development of evidence of recent
settlements of appeals by former air
traffic controllers.
The motion for reconsideration is
Denied, as is the motion for
certification, on the basis that the
matter sought to be certified does
not met the criteria for certification
get out in 5 C.F MR. § 2201.92.
Ordered this 5th day of January, 1983.
S. F. VESSER
Presiding Official
A-65
No.
IN THE SUPREME COURT
OF THE UNITED STATES
OCTOBER TERM, 1986
P. M. BERGH, et al * Appeal No.
* 85-1102
MILTON C. * Appeal No.
CROISSANT, et al * 85-1103
LARRY L. JOHNSON, * Appeal No.
et al, * 85-1106
JOHN C.HOLEN, * Appeal No.
et al * 85-1108
MYRON L. THOMSON, * Appeal No.
et al * 85-1240
JOHN W.KARR, et al,* Appeal No.
* 85-1241
STUART F. ETTER, * Appeal No.
et al, * 85-1242
MELVIN L.BEEBE, * Appeal No.
et al, * 85-1243
WILLIAM C. * Appeal No.
JOHNSON, et al, * 85-1245
*
Vv. .
*
DEPARTMENT OF sd
TRANSPORTATION,FAA *
*
*
Respondent.
DECIDED: July 2, 1986
Before FRIEDMAN, SMITH, and BISSELL,
Circuit Judges, FRIEDMAN, Circuit
Judge.
A-66
In this petition for_ review,
former air traffic controllers
challenge the decisions of the Merit
Systems Protection Board (Board)
upholding their removal by the Federal
Aviation Administration
(Administration) for participating in
the illegal 1981 strike on various
grounds. A major contention is that
the Administration acted improperly by
reinstating other controllers whom it
also had removed for striking but not
reinstating the petitioners. We
reject the petitioners’ challenges to
the decisions of the Board and affirm
them.
I.
Counsel for the petitioners
requested oral arguments. We
determined, however, that all but one
of the issues the petitioners raised
A-67
have been authoritatively decided in
Our previous decisions, that the facts
and legal arguments were adequately
presented in the briefs and record,
and that the decisional process woudl
not have been aided by oral argument.
Fed. R. App. P. 34(a). We heard oral
argument on the issue whether’ the
Administration acted improperly in
reinstating some, but not all, of the
fired controllers.
II.
A. the parties stipulated that
"[t]he FAA nationwide has reinstated
some air traffic
controllers/appellants who were
removed for participation in the [air
traffic controllers] strike pursuant
to settlement agreement." The
petitioners argue that the agency
"violated MSPB principles and
fundamental fairness by reinstating
A-68
some controllers found guilty of
Striking, for no reason which can be
discerned from the record." They cite
Douglas v. Veterans Administration, 5
MSPR 280 (1981), and Woody v. General
Services Administration, 6 MSPR 468
(1981), for the proposition that
"where an appellant raises an
allegation of disparate treatment in
comparison to specified employees, the
agency must prove a legitimate reason
for the difference in treatment by a
preponderance of the evidence before
the penalty can be upheld." Woody, 6
MSPR at 488 (citing Douglas, 5 MSPR at
306-07). The Petitioners assert that
the agency "has provided no
explanation, much less any evidence,
as to why it vacated its findings and.
dismissed its charges against’ the
reinstated controllers while denying
petitioners this benefit.”
A-69
Woody and Douglas, however, are
inapposite because they deal solely
with the question whether the penalty
the agency selected was proper. The
alleged disparate treatment here,
however, does not involve any
difference in the penalty imposed upon
different employees -- all the air
traffic controllers involved were
removed -- but turns upon the
propriety of the Administration's
settling some of the cases before the
Board by reinstating some controllers,
and not explaining the reasons why it
also did not enter into like
settlements with the petitioners.
The agency has given the following
explanation in its brief of the
process by which, and the reasons why,
it determiined to settle some of the
cases but not ° those of the
petitioners:
A-70
The FAA conducted an in-depth
analysis of each of the
11,000 cases of the removed
air traffic controllers in
preparation for the
litigation before the MSPB.
As part of the litigation
strategy, the FAA undertook
an analysis of the strengths
and weaknesses of each case.
Based on this individualized
analysis, the agency made
decisions to enter into
settlement negotiations with
certain air traffic
controllers whose appeals
were pending. As part of
this analysis, the FAA also
reviewed the individual cases
of the petitioners and made
individual determinations
that settlement was not
warranted in these cases.
The agency embarked on the
litigation analysis in order
to best prepare its cases for
hearings, not under any
policy to settle cases. The
cases selected for settlement
were those whose examination
demonstrated to the FAA that
further litigation would not
be successful.
We know of no principle that
precludes the government from
settling, upon whatever terms it deems
suitable, cases in which it determines
A-71
that the likelihood of success is so
low as to make continued litigation
inappropriate. The decision whether
to settle a particular case and upon
what terms is a matter particularly
within the discretion of the agency
conducting the litigation. The agency
was not required to give detailed
reasons in each particular case
concerning the facts that led it to
settle rather than to litigate, as the
petitioners apparently would require
it to do. The agency's statement that
based upon "an analysis of the
strengths and weaknesses of each
case", it decided not to - conduct
"further litigation" of those cases
where the analysis indicated that such
litigation "would not be successful",
was a sufficient explanation for the
settlements the government made.
The law favors settlement of
A-72
cases. United States v. Contra Costs
County Water District, 678 F. 2d 90,
92 (9th Cir. 1982); Stotts v. Memphis
Fire Department, 679 F. 2d 541, 565
(6th Cir. 1982); Airline Stewards &
Stewardesses Association, Local 550,
TWU, AFL-CIO v. American Airlines, 573
F.2d 960, 963 (7th Cir. 1978); Florida
Trailer & Equipment Co. v. Deal, 284
F.2d 567, 571 (5th Cir. 1960); Fed. R.
Evid. 408 advisory committee note.
The government is to be commended, not
criticized, for deciding not to
litigate those of the vast number of
air traffic contoller cases pending
before the Board in which it concluded
that its likelihood of success was so
small as to make continued litigation
unwise.
B. The petitioners next contend
that the Administration denied them
equal protection because, due to
A-73
friendship or personal favoritism,
Administration officials notified
other air traffic controllers, but not
the petitioners, of their deadline
shift for reporting to work. They
rely upon Olshock v. Village of
Skokie, 411 F. Supp. 257 (N.D. 111),
aff'd, 541 F.2d 1254 (7th Cir. 1976).
In Olshock, during a police officers
strike the Village of Skokie took an
informal poll to determine which
officers might return to work. Those
who said they would do so were
notified that if they reported by a
specific date, they would not be
discharged, but merely suspended. The
court held that
[t]he failure of defendants
to give all the 59 striking
policemen notice that’ they
would not be discharged if
they reported for duty in
uniform on or prior to July
13, 1975, and the failure of
defendants to give said
A-74
notice to the plaintiffs
herein, constituted a failure
to provide equal protection
of the laws to plaintiffs
within the meaning of and as
required by the Fourteenth
Amendment to the United
States Constitution... .
Id. at 265.
The rationale of Olshock was that
the Village unfairly had discriminated
against those officers who were not
notified that if they reported by the
deadline, they would not be
discharged, in favor of those who were
‘notified. In that situation, the
non-notified officers were not aware
of the deadline and the consequences
of failing to meet it. The air
traffic controllers, however, were in
a quite different situation, for we
have held that
[e]ach petitioner knew when
his next regularly scheduled
shift commenced and elected
A-75
not to show up at that time.
Having disregarded the
initial 48 hour moratorium,
petitioners can hardly
complain that they were not
specifically and personally
notified that each had an
Opportunity to also disregard
an extension of that
moratorium,
Adams v. Department of Transportation,
FAA, 735 F.2d 488, 491 (Fed. Cir.),
cert denied, 105 S. Ct. 432 (1984).
The petitioners argue, however,
that even if the Administration was
not required to notify all the air
traffic controllers of their deadline
shifts, it could not selectively
notify some but not- others. The
petitioners point out that Mr. Helms,
the administrator of the agency,
issued a “directive” that supervisors
should encourage their friends to come
back to work.
A-76
The Helms statement, however, did
not relate to notifying controllers of
their deadline shifts, but only urged
Supervisors to encourage controllers
with whom they were friendly to return
to work. In his testimony Mr. Cox, a
Supervisor at one of the towers
involved, explained the scope and
purpose of the Helms statement:
Q. Now in this telecon, Mr. Helms
advised that he did not want
Supervisors to be calling
controllers as Supervisors, is
that right?
A. That was not a directive. He
Suggested that the Agency -- he
said the Agency was not going to
instruct supervisors to make calls
as supervisors to their people.
Q. So he said that as far as the
Agency's position was concerned,
as a supervisor you were not being
directed to call --
A. That's correct.
Q. Controllers, is that correct?
But he did say that the Agency was
A-77
Suggesting that supervisors call
controllers as personal friends?
A. I think that's a little liberal.
My interpretation of what I heard was
that if you felt, and if you were
concerned about these people as
friends -- he wasn't suggesting to
call everybody as a friend. What he
was saying is that if you had someone
you were especially concerned about as
a friend, that you could be
influential with and answer questions,
go ahead and give hima call.
C. The petitioners argue that the
Administration "erroneously decided
that 5 U.S.C. Section 731] require[d]
dismissal of any employee found guilty
of striking." whereas that statute
permitted the agency to impose a
lesser penalty. We rejected a similar
contention in Schapansky v. Department
A-78
of Transportation, FAA, 735 F.2d 477
(Fed. Cir.), cert denied, 105 S. Ct.
432 (1984), where we ruled that
{[w]hether removal is
Mandatory under 5 U.S.C. §
7311 or 18 U.S.C. § 1918 need
not be here decided. Removal
is permissible under’ those
statutes and no statute
prohibits removal of any who
strike against the United
States.
Id. at 485.
Similarly, in the present case we
cannot find that the Administration
abused its discretion or otherwise
acted improperly in concluding that
the appropriate penalty for the
petitioners' illegally striking
against the government was removal.
Dd. Two of the petitioners
(Burkette, No. 85-1102, and Johnson,
No. 85-1245) contend that their
failure to report for work resulted
Ny a ne
pei _ ’ —— _ > - — : a? : _ = oo 9 = = - ov
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A-79
not from participating in the strike
but because they were confused about
their deadline shift for reporting. We
have rejected similar claims in
Anderson v. Department of
Transportation, FAA, 735 F.2d 537
(Fed. Cir.), cert. denied, 105 S. Ct.
432 (1984); Adams v. Department of
Transportation, FAA, 735 F.2d 488
(Fed. Cir), cert. denied, 105 S. Ct.
432 (1984); and Dorrance v. Department
of Transportation, FAA, 735 F.2d 516
(Fed. Cir.), cert. denied, 105 S. Ct.
432 (1984). For the reasons given in
those opinions, we also reject’ the
claim here.
The decisions of the merit Systems
Protection Board upholding the removal
of the petitioners are affirmed.
AFFIRMED
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