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

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Supreme Court, U.S.

FILED

OCT 16 1986

YOSEPH F. SPANIOL, JR:

CLERK iil

NO.

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1986

HUGH A. REYNOLDS, AND THOMAS G. PERRY,

Petitioners,

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

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

No.

IN THE SUPREME COURT

OF THE UNITED STATES

HUGH A. REYNOLDS, AND THOMAS G. PERRY,

Petitioners,

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

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

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

Page

QUESTION PRESENTED... ccccesccesecssced

OPIRIGNS BELOW ccc ccc scecceawescsaseen

JURISOICTION cw cccaee re secsescsssenseca

STATUTES AND REGULATIONS. eeeeesksee#eev#2#s#b:80 8 3

STATEMENT OF THE CASE. .ccccccccccccccd

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

CONCLUSION. ccccccccccsevesecssecescede

Rg Ee a mE AOE ALOR ES

min

TABLE OF AUTHORITIES

Pages

CASES

Bivens v. TVA

S MEP 456 CA9BL) wccccccseecs shh 920,22

Bergh v. DOT,FAA,

T34 F.dG 2979 (L9G6 ) 00000 0089S e97h0,14

Douglas v. VA

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Drummer V. GSA,

2a MPR S2e (E904) va cecr coves anes 11,20

Filip v. VA,

BS Gee 240 CASES) cc ctvcses wrrert Ty.

Norwood v. FAA,

530 F. Supp. 984 (1983).....7,15,16,17

Phillips, Inc. v. Walling

324 ie 2 490 oe) | ASMA ears |

Schapansky v. DOT, FAA

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United States v. Dotterwich

cf. jy So Si > o ao)! & ) Pee ee

Washington v. TVA

S Mere 424i CAFGL) cwsccae oieee ue oel9, 21

Wilson v. U. S. Postal Service

ZR GE GEO CECE sc Pee cccscscessssy, 20

Wirtz v. Ti Ti Humus Company

34S Fi.dG 209 (SEN CLE. 97S) wc vccee kf

Woody v. GSA

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Yick Wo v. Hopkins

LAS UsBsn 2a CAUWO bh vceceasececas aly &2

STATUTES AND REGULATIONS

5 U.S.C. § 2301(b).......3, 18, 23, 24

S UB... B Fobhacesccsavavseseas iceee®

9 U.S.C. § TO1L3S(d) cc ccccccccvccececs 8

2 U.8.0. © TiShacesecsas cocee@, 28, 23

9 U.S.C. § TIOZ. cc cacccccccccccces « «26

> U.8.C. 8 FICSCCS) wccccccnsscccnes 3, 8

26 U.8.C. & [SSE CL) avncccacsecs eneenen 2

OTHER DOCUMENTS

Breaking Trust, Director's

Monograph, U. S. Merit Systems

Protection Board Office of Merit

Systems Review and Studies,

PEREGREY TPES i ac cacvessanssceses 26, i2

-iii-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

HUGH A REYNOLDS, and

THOMAS G. PERRY,

Petitioners,

Vv.

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 PIRED 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

of 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 imvoked under 28 U.S.C.

Section 1254(1).

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 7311:

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

| Ee

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

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 E). In Bergh the Court

basically ruled thet the requirements

of the Civil Service Reform Act of

1978 guaranteeing equal reatment 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

es eaten

aie

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

—

alte

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. S.

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.

General Services Administration, 6

MSPR 468, 488 (1981); Douglas v.

Veterans Administration, 5 MSPR 280,

306-7 (1981); 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

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 a 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.

ak te

Appendix E. 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

governnent will have to do is provide

equal penalties initially and_ then

enter secret settlement the next day

ot tin

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, 1485

(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,

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

(1949).

The recent MSPB BREAKING TRUST

report concluded that the merit system

principles and prohibited personnel

practices, "Taken together ‘cn

constitute a sort of ‘Magna Charta' or

constitution of federal employment

law. BREAKING TRUST, Prohibited

Personnel Practices in the

) i

oitn

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 or 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 fired, that same

Government oave 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

elle al

site

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 Pevitioner's counsel for

the first time in November 1982 when

he became aware of the dismissal,

without explanation, of several cases

pending 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

;

~~) =

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 from

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

attic

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

’

aktia

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

a$6<

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

Marshali v. Tennessee Valley

Authority, 8 MSPR 458 (1986). The

Board continued to follow this rule in

Filip v. VA, 15 MSPR 329, 333 (1983);

Drummer 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 JU. 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.

et. 1064 (1886), San Francisco

required by ordinance that all hand

laundries be in brick Or stone

buildngs (rather than in cheaper frame

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 PAA.

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 om any prohibited personnel

practice described in section

2302(b) of this title; or

not in accordance with law.

Petitioner contended below thac (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)

PSG Leh AGS DIODE NE Mai tie 0 es Py Rea alta etd

‘

=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, aae UGB 277,

280, 64 S.Ct. 134, 136 (1943), unequal

treatment of Government employees who

commit similar offenses must be

eS eee ey

See ’

4 .

Been Casi Toasts Res Bytes 7 Sect

ac RAG HD aa eM Gy 30 Set ee

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

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.

S @.8.e. > Trea: [Emphasis added] A

remand on this crucial Civil Service

Reform Act and constitutional law

issue is indeed a very small price to

REALE ES

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,

yay

Dan M. Norwood

BYRD, COBB, NORWOOD, LAIT,

DIX & BABAOGLU

99 North Third Street

Memphis, TN 38103

(901) 523-0301

October 1986

«tte

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. Nortcod (

-30-

APPENDIX

—

TABLE OF CONTENTS

Page

Decision of the Court

of Appeals for the

re l

Decision of the Merit

Systems Protection

ES ESET ESSEC ETETE

Order Denying Request

to Reopen Record.......--. 15

Decision of the Presid-

ing Official of the

Merit Systems Protection

Board...... peccccsccccoes 16

Bergh v. DOT, FAA

TT 36

Loniite tno aoc iene Dollard

A-1

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

HUGH A. REYNOLDS, *

and THOMAS G. ed

PERRY, ad

bd Appeal No.

* 85-1121

Petitioners, *

Vv. * MSPB Docket Nos.

* ATO75282F0674

DEPARTMENT OF * ATO75282F1471

TRANSPORTATION, *

FAA, *

Respondent.

DECIDED: July 18, 1986

Before FRIEDMAN, Circuit Judge,

BENNETT, Senior Circuit Judge, and

BISSELL, Circuit Judge.

PER CURIAM.

DECISION

The decisions of the Merit Systems

Protection Board, affirming the

petitioner's removal by the Federal

Aviation Administration, Department of

Transportation, are affirmed.

5 ra tat Diy al SE ORS Site tb eI obi PUA SS

OPINION

1. Reynolds

Petitioner Reynolds’ brings’ this

appeal asking this court 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

Reynolds. Assuming, without deciding,

that Petitioner properly preserved

this issue before the board, which did

not discuss it in the spinions below

because it had earlier ruled that it

was not relevant; the recent opinion

of Bergh v. Department of

Transportation, FAA, App. No. 85-1102

(Fed. Cir. July 2, 1986), decides this

discovery issue and prevents us from

;

A-3

granting Reynolds the requested

relief.

2. Perry

Petitioner Perry raises the same

"secret settlements" issue '-

Reynolds, and we think Bergh

adequately disposes of that part of

Perry's appeal. However, Perry also

argues that he was on vacation and did

not participate in the strike. Perry

also argues that his supervisor

deliberately failed to let Perry know

about the amnesty program when Perry

specifically told him of his concerns

about being charged with a felony.

Perry also argues that this supervisor

confused him as to his return deadiine

while he was on vacation and that he

had little if any opportunity to learn

of his deadline elsewhere.

Under Schapansky v. Department of

Transportation, FAA, 735 F.2d 477

eer Osta xt

A-4

(ped. Cir.), cert. denied, 105 8S. Ct.

432 (1984), Perry's argument that he

was on vacation and had no intention

to strike would, if proven, show that

he lacked the necessary intent to

strike and would show that he had not

refused his services in concert with

others. The government has entirely

failed to respond to this argument.

However, on appeal, the burden is on

Perry to prove to us that the board

made some error in fact or in law.

The presiding official found in

Perry's case that

Although [Perry's supervisor]

did not dispel [Perry's]

concern about possible felony

charges which’ was expressed

during their second telephone

conversation on August 3, 1981,

I find that such does not

justify [Perry's] subsequent

absences. This would be

particularly true with respect

to [Perry's] August 5, 1981

= oh AS I Sei

A-5

absence because the undisputed

evidence shows that during the

evening of August 4, 1981,

after [Perry] had missed a

shift assignment, [Perry's

supervisor] again talked with

[Perry] and notifed him that he

was needed at work for his

August 5, 1981 shift

assignment. Thus, [Perry] was

given clear notice that he

could return to work on August

25, 1981, and was in fact,

solicited to return on that

date. Because {Perry] did not

report for work as_ scheduled

and has offered no evidence why

he did not or could not report,

I find that he has not rebutted

the agency's prima facie case.

Perry's arguments here concerning

his vacation are apparently an attempt

to show that he had no intent to

strike. However, the facts, which

Perry has failed to show are not

supported by substantial evidence,

indicate that errespective of any

vacation, Perry was in contact with

his supervisor and was told to report

for his due date of August 5. Perry

has offered no clear reason for his

failure to report on August 5,

{

’

A-6

although some statements in his brief

may be taken to be an argument that

his failure to report on August 5 was

due to confusion created by his

supervisor concerning his status. We

have considered the record and Perry's

brief and to the extent that

"confusion" is being put forward as

his excuse for failing to report to

work on August 5, we think’ that

Anderson v. Department of

Transportation, FAA, 735 F.2d 537,

539-40 (Fed. Cir.), cert. denied, 105

§.Ct. 432 (1984), and Adams v.

Department of Transportation, FAA, 735

F.2d 488, 490 (Fed. Circ), cert.

Genied, 105 S. Ct. 432 (1984), are

precedents against Perry's position,

A-7

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 e CASE NO.

*ATO75281F1471

ROGER DE VALL ad CASE NO.

*ATO75281F1817

”

Vv. *

DEPARTMENT OF TRANSPOR- *

TATION, FEDERAL aheaiaaal

ADMINISTRATION,

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-8

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

A-9

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 11. 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 no

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

period.

A-10

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

defenses. Inasmuch as the appellant

A-11

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 thy. 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

notified of the right under 5 U.S.C.

A-12

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

Federal 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

Veen Sepha CPL a ey ‘

Washington, D. C.

fe CaP SEE,

Srey

RE ea

kt eet eet EM ted ahaa

A-13

FOOTNOTES

1. These cases involved the

consolidation of appeals of 170 former

air traffic controllers (see attached

list) employed in the Memphis,

Tennessee area. Although all appeals

were consolidated for hearing, the

presiding official issued three

initial decisions. one for each of the

facilities in Memphis, both entitled

Bader, et al, dated January 13, 1983,

and a single decision issued on

January 25, 1983 for ‘Hugh A. Reynolds

and Thomas G. Perry, who were employed

in control towers near Memphis, The

egency filed separate petitions for

review from each of the three

decisions. In addition, petitioner

Roger W. DeVall, one of the air

traffic controllers whose appeal was

consolidated sub nom, Bader, et al,

filed a petition from the initial

decision affirming the agency's

removal action. The petitions for

review are consolidated pursuant to 5

U.8.C. Section 7701(£)(1).

2. The Board has resolved the issues

raised in the letter by the appellant

in the following cases: Schapansky v.

Department of Transportation, MSPB

Docket No. DAO/75281F1130 at 6 n. 2 and

10-11 (October 28, 1982) prima facie

case of strike participation and

reasonableness of the penalty);

Anderson v. Department of

Transportation, MSPB Docket No.

SLO75281F0347 at 7-8 (April 25, 1983)

(showing of confusion with respect to

the "deadline shift" does not rebut

the agency's prima facie case of

strike participation); Sofio v. IRS, 7

MSPB 493 (1981) (appellant's

A-14

disagreement with the manner in which

his attorney handled his case is not

sufficient ground for review).

A-15

UNITED STATES OF AMERICA

ERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

R. E. BADER, et al *

Appellant, *

Vv. *

—

DEPARTMENT OF TRANS- *

PORATATION, FEDERAL * |

AVIATION ADMINISTRATION, * .

Agency. *

ORDER

By a motion received on December 3,

1982, the attorney tor the

above-referenced appellants requests

that the record be re-opened for the

development of evidence concerning

several recent settlements of appeals

from former Air Traffic Controllers

who were removed as the result of the

1981 strike against the agency.

The matter of recent settlements not

being relevant to the instant

consolidated appeal, the motion is

DENIED.

S. F. VESSER

Presiding Official

13 7 4

= + SUP Be! b

A- 16

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

IN THE MATTER OF: *

HUGH A. REYNOLDS, *

THOMAS C. PERRY, *

Appellants, * DECISION NUMBER:

* ATO75282F0674

Vv. * DECISION NUMBER:

* ATO75281F1471

DEPARTMENT OF *

TRANSPORTATION, *

FEDERAL AVIATION *

ADMINISTRATION, *

Agency. ™

INTRODUCTION

By separate petitions, the appellants

submitted timely appeals to the

Regional Offices 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 an

Air Traffic Control Tower.

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, which

included the appeals of other former

air traffic controllers, was held on

October 18, 19, 20 and 21, 1982 at

Memphis, Tennessee.

et ER yd eS

EYG WE ER RTT oT

Fat

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 5

u.S.C. $7512. Accordingly, the

appeals were accepted for adjudication

on the basis that they are within the

appellate jurisdiction of the Merit

Systems,Protection Board. 5 U.S.C.

§7513(d) and 5 U.S.C. §7701.

FINDINGS OR 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

U.S.C. §7701(c)(1)(B); 5 C.F.R.

§1201.56(a)(ii). This standard must

be applied toa 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 actiin was taken for such

cause as will promote the efficiency

of the service and that the

disciplinary sanctins 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:

A-18

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 ° ° ,

particicpates in a strike

against the Government of the

United States ... " and 18

U.8.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 tht

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 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 ppellant 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 thatn an

illegal strike was in progress, and

that he must return for duty; but that

each failed to return to duty.2 The

A@wWLF

Board has taken official notice

(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. DAO75281F0713 (May 28, 1982).

In support of the charges concerning

each appellant, the agency furnished

copies of agency personnel logs,

(facility sign-in sheets), assignment

schedules and time and attendance

reports reflecting, in pertinent part,

for the period of August 3, 1981

through August 6, 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 shift assignment.

The appellants have not refuted the

fact of the strike as officially

noticed by the Board in Ketchem,

Supra,. In light of the appellants'

undisputed absneces from scheduled

shft 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-20

The evidence as reflected in the

testimony of the Chief of each

facility, reveals that as a result of

an August 3, 1981 announcement by

President Reagan, striking employees

were allowed to return to work if they

reported for their first scheduled

shift on or after 11:00 a.m. E.D.T. on

August 5, 1981. the unrebutted

evidence also shows that each

appellant had been briefed, prior to

the strike, that participation in a

strike against the Government was

illegal.

With respect to appellant Hugh A.

Reynolds, the undisputed evidence

reflects that August 3, 1981 was a

regular day off (RDO) and that he had

scheduled shift assignments on August

4 through 8, 1981. The appellant's

deadline for reporting for work, based

on the Presidential "amnesty", was

August 5, 1981, at 2:00 p.m. Facility

Chief William E. Branch testified that

he observed the appellant picketing on

August 4, 1981 (T.325). The appellant

furnished no explanation for his

August 4, and 5, 1981 absence to the

agency or in his appeal to the Board.

Thus, appellant Reynolds has not

rebutted the agency's case.

With respect to appellant Thomas G.

Perry, the undisputed evidence shows

that August 3, 1981 was a regular day

off and that he had scheduled shift

assignments on August 4 through 8,

1981. Perry's deadline for reporting

to work, based on the Presidential

"amnesty", was 2:00 p.m. on August 5,

1981. Gerald W. Graham, Facility

Chief at the time of the strike,

A-21

testified that his attempts to contact

Perry on August 1 and 1, 1981, to

ascertain Perry's future availability

for work because of the anticipated

strike, were unsuccessful; 3 tht Perry

returned a call on August 3, 1981;

that he told Perry that a strike had

taken place and that Perry was needed

at work; that because he was out of

town, Perry advised that he was

unavailable for work on August 3,

1981; and that he then asked Perry to

be at work on August 4, 1981; and that

he then asked Perry to be at work on

August 4, 1981, at 7:00 a.m. Graham

also testified that Perry again

telephoned him at approximately 9:30

p.m. on August 3, 1981, inquiring

about his status; that he advised

Perry that he was considered AWOL on

August 3, 1981 because he was not at

work when needed; and that Perry then

responded that he was "casting his lot

with the union" because he felt the

AWOL would result in a felony charge

against him (T.413-414).

Graham added that they talked again on

the evening of August 4, 1981; that

they discussed the Presidential

deadline; that he asked that the

appellant not commit himself,

notwithstanding the fact that he

listed the safety precautions

available for the appellant

(T.414.415).

In his oral and written responses to

the agency and in his initial appeal

to the Board, the appellant furnished

no explanation for his failure to

report for scheduled shifts on August

4 and 5, 1981.

A-22

Although Graham did not dispel the

appellant's concern about possible

felony charges which was expressed

during their second telephone

conversation on August 3, i981, I find

that such does not justify the

appellant's subsequent absences. This

would be particularly true with

respect to the appellant's August 5,

1981 absence because the undisputed

evidence shows that during the evening

of August 4, 1981, after the appellant

had missed a shift assignment, Graham

again talked with the appellant and

notified him that he was needed at

work for his August 5, 1981 shift

assignment. Thus, the appellant was

given clear notice that he could

return to work on August 5, 1981, and

was in fact, solicited to return on

that date. Because the appellant did

not or could not report, I find that

he has not rebutted the agency's prima

facie case.

The appellants argue that they

considered themselves 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 resporting deadline confusion by

the appellants could have been avoided

Or resolved by reporting to or

contacting the facility by 11:00 a.m.,

E.D.T. on August 5, 1981, if the

appellants in fact perceived that to

be their reporting deadline; however,

neither of the appellants elected to

AS aah il AA DION ERO SPOR A I NT I a

A-23

pursue such a course of action. While

the agency may not have communicated

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. 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 if the

appellanbs now contend that they

failed to report for duty because of a

confusion about a deadline, if there

was in fact confusion, they 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

discloses that one 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 participation

extended only through the deadline for

each employee.

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

fi eS

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 Agencyl MSPB 489,

“ a WEE let DSBS; Agi

492 (1980). Harmful error is defined

in the Board;s regulations at 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 decisice

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 an action is proposed

it entitled to at least 30 days'

advance written notice, unless there

is reasonable cause to believe the

employee has committed a crime for

which as sentence of imprisonment may

be imposed. 5 U.S.C. § 7513(b)(1).

Because 18 U.S.C. § 1918 provides that

A-25

participation in a strike against the

United States Government is a felony,

punishable by up to one year of

imprisonment, and becuase 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

seven 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 seven 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).

The evidence reflects that at his

request, appellant Perry made his oral

response on August 4, 1981, the day

after he received his certified mail

copy of the notice of proposal

removal. Thus, Perry's claim of error

regarding the time in which to respond

is without merit.

A-26

A review ofr the record reveals that

in appellant Reynolds' case, the oral

response was heard by the agency

official on the seventh day 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. ATO7528110338 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 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."

A-27

It is the agency's decision to take

disciplinary action that cannot be

sustained by the Board if it is not in

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 errors 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 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. SFO7528010370

(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. 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)(AO.

While the appellants plead harmful

error with respect to the fact they

received less than seven full 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-28

The next claim of harnful error made

by the appellants is that they were

unlawfully suspended during the

pendency of the removal actions. The

agency acknowledged that the

appellants were placed on 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. 5 U.S.C. §§

7501(2) and 7511(2). It is apparent

tha the agency considered it contrary

to its best interest to return the

appellants to a duty statut 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

te 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 with a

notice of proposed suspension nor

furnish the appellants with an

opportunity to reply thereto.

Accordingly, I find that the agency's

de facto supension actions were

effected, without regard for the

requirements of 5 U.S.C. § 7513 and,

therefore, cannot be sustained. 4 See

Cuellar v. U. S. Postal Service, MSPB

Dkt. No. SPO?5299045 (NOvember 13,

1981).

The appellants also contest the fact

that they were denied requests for

extensions of time in which to provide

A-29

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

record, the claims made by the

appellants, and the circumstances

wherein the majority or a substantial

number of each 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 tht 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-30

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

record. Ziess v. Veterans

Administratin, MSPB Dkt. No.

NYO75209017 (September 1, 1981). See

also Chavez v. Office of Personnel

Management, MSPB Dkt. No. DA831L09003

at 13-14 (May 28, 1981). MThus,

contrary to the appellants' claim, the

agency evidence of picketing activity,

PATCO membership, and strike support

activities constituted admissible

evidence relating to strike

aprticipation.

The appellants also contend that the

removal actins 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 neither furnished any

explanation for his absences. The

evidence, as reflected by the

testimony of each facility chief

reveals that individual consideration

was given to each appellant's case and

that each facility chief had the

authority to decide eash 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,

A-31

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 employees at their

respective facilities were treated

differently; i.e., there is no

evidence showing that any employees

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 appellants' claim, the

evidence presented does not reveal the

removal actions were a violation of

the Merit Systems 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

repsial for their disclosure of

violations of laws, rules, and

regulations; misSnamagement; gross

waste of funds; abuse of authority;

and substantial dnager 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. Accoringly, I find no

merit in the appellants' claim of

reprisal.

A-32

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

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 .

- - Guties 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 LU71, L078 (Stn Cie. 196i}.

Because of the intentional disruptive

effect of the strike on the agency

mission, caused by the apellants'

absences in support of a strike, I

find no basis for mitigating the

penalty for removal, notwithstanding

the appellant's 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

ArJI9

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

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

March 1, 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.

A-34

After providing an opportunity for

response by other parties, the Board

may grant a petition for review when

it is established tht:

(a) New and material

evidence is available that,

despite due diligence, was

not available when the record

was closed;

(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), 5 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

ee) hd oe a 7

7 =, =i)

(4016, oe

“

A-35

FOOTNOTES

l. 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

Seeratatcettcs 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. PHO752801054

(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

Pederal Cout Improvement Act of 1982,

to be codified at 28 U.S.C. §

1209(a)(9).

i Doel

Set a

mie mh oh,

yee ee

o —- :

No.

A-36

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 *

TRANSPORTATION,FAA *

Respondent. °

DECIDED: July 2, 1986

Before FRIEDMAN, SMITH,

Circuit Judges,

Judge.

and BISSELL,

FRIEDMAN,

Circuit

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.

Counsel for the petitioners

requested oral arguments. We

determined, however, that all but one

of the issues the petitioners raised

A-38

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

Anky"I7

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."

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-40

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

eS eo

A-41

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-42

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-43

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),

ere 'G, 341 F.2G 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-44

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

[eJach petitioner knew when

his next regularly scheduled

shift commenced and elected

A-45

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.

“ge

AwT"20

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 dizsective. 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

—Ssr ll

A-47

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 him a call.

C. The petitioners argue that the

Administration "erroneously decided

that 5 U.S.G. Section 7311 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-48

of Transportation, FAA, 735 F.2d 477

(Fed. Cir.), cert denied, 105 s. ct.

422 (1984), where we ruled that

[whether 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.

D. Two of the petitioners

(Burkette, No. 85-1102, and ,Johnson,

No. 85-1245) contend that their

failure to report for work resulted

—s ee

= tee

ine, ~ ¢

Os - e fan = io, 7

a 3 : j a ’

: s > 7 = a A ® 7 * 4 c a oA Ry all ; tat ' |

: ¥ 7 ir @ Fa M Fe : “ . a 7 il

A-49

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

(ped. Circ.), cert. denied, 105 8. Ct.

432 (1984); Adams v. Lepartment 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

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