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

. “ FILED

86-660 | OCT 16 1986

No. JOSEPH F. SPANIOL, JR.

CLERK

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1986

D. SUZANNE BRUCE, ;

Petitioner,

V.

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

AND BABAOGLU

99 North Third Street

Memphis, Tennessee 38103

(901) 523-0301

Attorneys for Petitioner

No.

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1986

D. SUZANNE BRUCE,

Petitioner,

V.

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

AND BABAOGLU

99 North Third Street

Memphis, Tennessee 38103

(901) 523-0301

Attorneys for Petitioner

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...... Tereerree ey ee 1

OPTNGONS BELOW. ccc ccscereesecncesesesed

JURISDICTION. wccrcccccscscccesesscsese ‘am

STATUTES AND REGULATIONS... cccccceeeds

STATEMENT OF THE CASE...eccccccccccecd

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 U. S.

CONSTITUTION MEANINGLESS.......10

CONCLUSION. w.cccccccccccccccssccscsseescsh

Pag oe re er err er re

TABLE OF AUTHORITIES

Pages

CASES

Bivens v. TVA

S Meee Gee CAPS docs cceseeecsces Lb p20 etl

Bergh v. DOT,FAA,

THe Poke BOTS CEPBO dc ccsees 2,6,9,190,41

Douglas v. VA

> WE SOE CAPSS Pvc vvnccesonseees 1li,i2

Drummer V. GSA,

Be CEE Oe CE OO) ash he tsceeseees 11,20

Filip v. VA,

Ee Ce ae CAPSS? 6 eck hee é ees ii,2@

Norwood v. FAA,

5380 F. Supp. 984 (1983)..... eee Fee

Phillips, Inc. v. Walling

Se Sas SEO TAGE 6 6a 60d 666 KOR OES 14

Schapansky v. DOT, FAA

Tae Samet GCP Chee é6 cece tek aeend aes 13

United States v. Dotterwich

Bae Wis GET CAPES? 6 6666.65.64 06 40408 % 24

Washington v. TVA

S Bee BF CAPCAS 6h esc erence cvine 19, 21

Wilson v. U. S. Postal Service

21 MSPR 490 (1984)...... “ewe we il, 29

Wirtz v. Ti Ti Humus Company

StS Vuk SOP USER CEE AFTER a cc ccces 14

Woody v. GSA

S Mere SOS LISS} cs cccvisccvvees 10, 11

-ii-

Yick Wo v. Hopkins

SEO akc SO CRO) 6644440 6624S iy @2

STATUTES AND REGULATIONS

> U.8.0. 8 2302 UD) ic cccss 3, 18, 23, 24

2 UsBils B Tab d sce svccaceccsscesssees +

> U.S.C. GF TOLLS) wcccccccccccvcceces 8

> UB. s DB FIGL swe scsassecaes 8, 18, 23

> [eS e | PISS 6c cck cached sedeianves 26

> [eB © FIGS) cca caravsctineces 3, 8

28 U.S.C. § L254 (Lp cv cceecsccvccssses 2

OTHER DOCUMENTS

Breaking Trust, Director's

Monograph, U. S. Merit Systems

Protection Board Office of Merit

Systems Review and Studies,

POUEGRE 2UO6 64% i626 5 Ow oS oR KOO s4, io

-iii-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

D. SANDRA BRUCE,

Petitioner,

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 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

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 invoked 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

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

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 D). 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

«iin

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

=) =

not violate the prohibitions against

disparate treatment in discipline

found in the Civil Service Reform Act

and the United States Constitution.

I. PAILJRE 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.

atin

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, iS 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

wood and Douglas, however, are

i napposite 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 oo 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.

EE

wil te

Appendix D. 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

ail

-13-—-

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,

Fo

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, Ly, ae 490, 493

(1945).

The recent MSPB BREAKING TRUST

report concluded that the merit system

principles and prohibited personnel

practices, "Taken together “+s

constitute a sort of 'Magna Charta' or

constitution of federal employment

law. BREAKING TRUST, Prohibited

Personnel Practices in the

atu

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 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). Por the 123 the

olga

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

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 Preedom of Information Act

lawsuit filed by counsel for

Petitioner in the United States

=1 Fa

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

my pe

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, ag_, 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

atte

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 tne form

of unlike penalties for like offenses,

two employees were fired for removing

'

H

=26<

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);

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

atin

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.

Ct. 1064 (1886), San Francisco

required by ordinance that all hand

laundries be in brick Or stone

buildngs (rather than in cheaper frame

-22=<

buildings) unless there was special

permission granted by the Board of

Supervisors. Chinese immigrants were

aenied 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

rr a Se

Fan Ne et

aie

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 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)

ee ee

-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

governnent and not merely as a

collection of English words," United

States v. Dotterwich, 320 U.S. 277.

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

treatment of Government employees who

commit similar offenses must be

;

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pte RAAT BS.

Sa PANG Rs hae aaa a

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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

4

3

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5

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3

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.8.C. 702. [Emphasis added] A

remand on this crucial Civil Service

Reform Act and constitutional law

issue is indeed a very small price to

a

B

2

ee

g

Se

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,

A 4.7

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 /6™*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. Nortood (

TABLE OF CONTENTS

Page

A. Decision of the Court of

Appeals for the Federal

Dts is beee6666 6 *ere8ft ft fe eee l

B. Decision of the Merit

Systems Protection Board..... 3

? Cc. Decision of the Presiding

Official of the Merit

Systems Protection Board....14

D. Bergh v. DOT, FAA decision..34

att nw Rhy Rane

A-1

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

DEPARTMENT OF

TRANSPORTATION, FAA,

D. SUZANNE BRUCE ad

*

Petitioner, °

aa

V. * Appeal

* No.85-1117

* MSPB Docket

* No.DAO75281F1887

*

™

*

*

*

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

petitioner's removal by the Federal

Aviation Administration, Department of

Transportation, is affirmed.

3

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:

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y

‘

§

4

A-2

OPINION

Petitioner Bruce 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 Bruce. The

recent opinion of Bergh v. Department

of Transportation, FAA, App. No.

85-1102 (Fed. Cir. July 2, 1986),

decides this issue and prevents us

from granting Bruce the requested

relief.

PSC Read Tack ares oe aS ieee

|

A-3

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

D. SUZANNE BRUCE

DOCKET NO.

DAO75281F1887

V.

DEPARTMENT OF

TRANSPORTATION

+*-*eeetet & &

OPINION AND ORDER

Appellant petitions for review

from an initial decision of the

Board's Dallas Regional Office

sustaining her removal based on

charges of strike participation and

unauthorized absence.

In her petition for review,

appellant asserts that new and

material evidence is available that,

despite due diligence, was not

available when the record was closed.

She cites testimony in a hearing

Subsequent to her own regarding the

continued employment of a similarly

> SRS Chace ee See RT SOE RS ear aN ae Bi oes EOS a TR Se ee Ee ? ‘ , ote 4

, — itaaliadatiies tT cris PALS ACI tx PRI ROT ONE AR OP OO TE CEST SAT Ns NG On oie Red PRE RL We ance EN INS | OER ee RENTER RT

. ‘ paca ~ oe. : i ge

A-4

situated controller and of other

controllers who violated the

anti-strike statutes. Appellant also

refers to several settlements,

presumably between controllers and the

agency, which allegedly show disparate

treatment. Even if this information

constitutes new evidence that

appellant could not previously obtain,

appellant has not offered sufficient

evidence that the other controllers

were in fact Similarly situted;

rather, she has merely alleged that

they participated in a strike and are

Still employed by the agency. Without

more, appellant has not shown that the

allegedly new evidence is material to

her claim of disparate treatment. The

Board finds, therefore, that appellant

has failed to establish a basis for

review on the grounds of new = and

material evidence, 5 oe OP §

1201 .115.

Shae Fy rd

Waisee aries.

A-5

Appellant also asserts that the

presiding official erred by

retroactively applying the standard

articulated in Schapansky v.

Department of Transportation, MSPB

Sn Lect RBS IO Ot HESS REE SIE Gk TS aaa Nt Dia ica a PRs OE a a NS

Docket No. DAO75281F1130 at 6 n.2

(October 28, 1982), for the

establishing by the agency of a prima

facie case of strike participation.1]

Appellant was aware of the Schapansky

standard in preparing her petition for

review but nonetheless, does not refer

to any additional evidence or argument

that would satisfy that standard.

Thus, appellant's argument is without

merit.

Appellant contends that the

presiding official should have barred

evidence and testimony concerning a

phone conversation between appellant

and her facility chief as violative of

her fifth amendment rights.

+) A elena

A-6

Appellant's situation, however, did

not rise to the level of a custodial

interrogation in which her statements

would be considered compelled for

fifth amendment purposes. See Adams

v. Department of Transportation, MSPB

Docket No. NYO75281F0424 at 12-13

(April 25, 1983). Appellant,

therefore, has failed to show that the

presiding official committed

reversible error in admitting the

evidence and testimony of her phone

conversation. Id.

Appellant contests the

sufficiency of the notice of proposed

removal, contending that it failed to

inform her that she was being removed,

not for strike participation and

absence without leave, but for failure

to return to work by her deadline

shift. Although appellant's failure

to meet her deadline resulted in the

A-7

filing of the charges, the charges

were strike participation and AWOL.

See Anderson v. Department of

Transportation, MSPB Docket No.

SLO752810347 at 7 (April 25, 1983).

We find that the charges as alleged

were sufficiently specific to apprise

appellant of the reason for the

charges and to provide her with an

opportunity to repond thereto.

Appellant asserts that the

presiding official erred in failing to

find that she was improperly suspended

during the notice period of her

removal. It is not clear that

appellant raised this issue before the

presiding official. In any event,

appellant has not shown that_ she

unequivocally communicated her

availability and desire to return to

work to the agency, thereby failing to

establish that she was ready, willing,

A-8

and able to return to work. See

Martel v. Department of

Transportation, MSPB Docket No.

BNO75281F0558 at 6-7, 11 (April 25,

1983). Therefore, we find that

appellant has not met her burden of

proof as to the existence of a

suspension over which the Board has

jurisdiction under 5 U.S.C. § 7512(2).

Pinally, Appellant contends that

the presiding official should not have

conducted the hearing after he

received legal memoranda from_ the

Board's Office of Special Counsel

regarding the penalty for violation of

the federal anti-strike statutes.

Apparently, appellant is referring to

research assistance memoranda prepared

by the Board's Office of General

Counsel. The Board has found nothing

barring its Office of General Counsel

from preparing such memoranda for use

A-9

by the Regional Offices. See Campbell

v. Department of Transporation, MSPB

Docket NO. DEO75281F0674 at 21 n.19

(April 25, 1983). Therefore, we find

that appellant's argument is without

merit.2

Accordingly, having fully

considered appellant's petition for

review and finding that it does not

meet the criteria set forth at 5

C.F.R. § 1201.115, the BOARD DENIES

the petition.

This is the final order of the

Merit Systems Protection Board in this

appeal. The initial decision shall

become final five (5) days from the

date of this order. 5 C.FR. §

1201.113(b).

The appellant is hereby notified

of the right under 5 U.S.C. § 7703 to

seek judicial review of the Board's

action by filing a petition for review

in the United States Court of Appeals

A-10

for the Federal Circuit, 717 Madison

Place, N. W., Washington, D. Cc.

20439. The petition for judicial

review must be received by the court

no later than thirty (30) days after

the appellant's receipt of this order.

FOR THE BOARD:

Date Robert E. Taylor

Secretary

Washington, D.C.

A-1l

FOOTNOTES

1 We find that the presiding

official correctly determined that the

agency established a prima facie case

of appellant's strike participation,

and did not misinterpret the

Schapansky standard,

2 For the first time in her petition

for review, appellant also raises

allegations concerning the propriety

of the President's "amnesty" program,

the agen.,'s authority to alter the

Presidential deadline, the agency's

commission of prohibited personnel

ge Be ee oe et el eee ee

A-12

practices, and the unconstitutionality

of the anti-strike statutes. We

decline to consider these arguments on

review since they were not raised

below. See 5 C.F.R. § 1201.115.

The Board has resolved the

additional issues raised by appellant

in her petition for review in the

following cases: Campbell v.

Department of Transportation, MSPB

Docket No. DEO75281F0674 at 4-5, 15-16

(April 25, 1983) (admissibility of

hearsay) (notification of “deadline

shift"); Noa v. Department of

Transportation, NYO75281F0697 at 6-7

(April 25, 1983) (admissibility of

hearsay); Schapansky v. Department of

Transportation, MSPB Docket No.

DAO75281F1130 at 10-12 (October 28,

1982) (reasonableness of the removal

penalty, nexus, and efficiency of the

service); Desiderio v. Department of

OO — CO en er

A-13

the Navy, 4 MSPB 171 (1980) (AWOL

alone as cause for removal); Anderson

v. Department of Transportation, MSPB

Docket No. SLO75281F0347 at 8-13

(April 25, 1983) (effect of “command

influence" on meaningful opportunity

to reply) (invocation of 5 U.S.C. §

7513(b)(1) to shorten the notice

period); Ketchem v. Department of

Transportation, MSPB Docket No.l

DAO75281F0713 at 9 (May 28, 1982)

(official notice period for strike),

motion for clarification denied

(November 23, 1982).

A-14

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DALLAS REGIONAL OFFICE

D. Suzanne Bruce,!

Appellant,

Vv. Docket No.DA075281F1887

Date: December 14, 1982

Department of Transportation,

Federal Aviation Administration,

Respondent.

DECISION

Introduction

D. Suzanne Bruce filed an appeal

with the Dallas Region of the Merit

Systems Protection Board on September

9, 1981, from an action by the

Department of Transportation, Federal

Aviation Administration (FAA),

removing her from the position of Air

Traffic Control Specialist at the West

Memphis Air Traffic Control Tower in

West Memphis, Arkansas, effective

August 22, 1981.

A-15

Jurisdiction

A federal employee may appeal any

action which is appealable to the

Board under any law, rule, Or

regulation. 5 0.8.¢. § 7701(a).

Appellant was a competitive service

employee, not serving a probationary

period, and is therefore entitled to

appeal a removal action to the Board,

S$ U.8.€. 96 Sik - 7514; S&S C.PR. 8S

752.405; 1201.3(a)(1) (1982). Thus,

the Board has appellate jurisdiction

over this timely filed appeal.

Analysis and Findings

On August 6, 1981, Gerald WW.

Graham, West Memphis Tower Chief,

issued a letter to appellant proposing

her removal for participation in a

strike against the United States

Government and .-unauthorized absence,

beginning on August 4, 1981.2

Following written and oral replies by

appellant, on August 18, 1981, Graham

A-16

issued a decision advising appellant

she would be removed effective August

22, 1981.

Pursuant to a pre-hearing

discussion, the following stipulations

were reached by the parties and made a

part of the record in this case: (1)

appellant signed an appointment

affidavit, prior to August 3, 1981,

wherein she swore that she was not

participating in a strike against the

Government of the United States or any

agency thereof, and would not so

participate while an employee thereof;

(2) prior to July 31, 1981, appellant

was aware of her work schedule for the

week of August 2, 1981; (3) appellant

did not request nor was she granted

‘annual leave, sick leave, or excused

absence for August 4 and 5, 1981.3

Also, official notice was taken that

the Professional Air Traffic

A-17

Controllers Organization (PATCO) was

conducting an unlawful nationwide

strike against FAA on the dates of

August 4 through 6, 1981. See Ketchem

v. FAA, MSPB Docket No. DAO75281F0713

(May 28, 1982); 5 C.F.R. § 1201.67

(1982).

From the unrefuted evidence

presented, i.e., the watch schedule,

time and attendance records, personnel

logs, and testimony of Chief Graham,

it was established that appellant was

scheduled to work on the dates of

August 4 and 5, 1981, and that she did

not report to work on those days.

That uncontraverted evidence, along

with the stipulated fact that

appellant had not been granted leave,

established that appellant was absent

without authorized leave (AWOL) on the

dates of August 4 and 5, 1981. See

Moore v. Veterans Administration, 2

MSPB 247 (1980).

A-18

The terms "striking" =

"participating in a strike" have been

held to mean an actual refusal in

concert with others to provide

services to one's employer. United

Federation of Postal Clerks v. Blount,

325 F.Supp. 879, 884 (D.D.C.), aff'd,

404 U.S. 802 (1971); Schapansky v.

FAA, MSPB Docket No. DAO75281F1130 at

6 (October 28, 1982). The Board has

stated that in a case in which the

existence of a strike is a matter of

general knowledge, the agency may

establish a prima facie case of an

employee's voluntary participation

therein by presenting evidence of

his/her unauthorized absence from duty

during the strike. Id. In view of

appellant's unauthorized absences’ on

August 4 and 5, 1981, while an illegal

strike by PATCO was in progress, I

find the agency has presented a prima

A-19

facie case of appellant's

participation in that strike. See id.

In Schapansky, the Board stated

that once the agency has established a

prima facie case, the burden of

persuasion should then shift to the

employee to rebut the agency's case by

presenting evidence to show that she

had no knowledge of the existence of

the strike or to demonstrate that her

absence was due to some factor other

than intentional participation in the

Strike. Id. There is no evidence of

record to rebut the agency's prima

facie case of appellant's

participation in the strike conducted

by PATCO. Accordingly, I find the

preponderance of the evidence supports

that appellant voluntarily refused, in

conce.t with others, to provide

services to the FAA beginning at 2

p.m... on August 4, 1981, at least

A-20

through August 5, 1981. Therefore, I

find the charges stated in the notice

of proposed removal that appellant

participated in a strike against the

Government and that she was absent

without authorization are sustained,

Appellant argued that any

consideration of evidence that she was

picketing on August 3, 1981, her

regularly scheduled day off, to

Support the charge of striking would

violate her first amendment rights,

and that any negative inference from

her failure to testify or to admit or

deny the charges in her reply to the

agency would violate her right’ to

remain silent under the fifth

amendment. Although there was

unrefuted evidence that appellant did

participate in a PATCO picket line on

August 3, 1981, consideration of that

evidence was unnecessary and played a

A-21

part in sustaining the agency's charge

of striking. The strike participation

charge is supported by appellant's

actual refusal, in concert with

others, to provide services to the

agency, as evidenced by her

unauthorized absence during the

strike. Id. Moreover, that prima

facie case of striking is sufficient

to establish the requisite

preponderance because it is unrebutted

by any evidence, not because of any

negative inference from appellant's

failure to deny the _ charges. See

Johnson v. PAA, MSPB Docket No.

DCO75281F0998 (November 10, 1982);

Schapansky, supra. Accordingly, I

find appellant's arguments as to the

first and fifth amendments are not

material to this appeal.

Although I have found the cherges

to be supported by a preponderance of

the evidence, an agency's decision to

A-22

remove an employee may not be

sustained if the appellant

successfully shows the decision was

based on one of the affirmative

defenses shown at 5 U.S.C. §

7701(c)(2).4 The burden of proof on

all affirmative defenses rests on the

party asserting the defense. 5 C.F.R.

§ 1201.56(b) (1982).

Appellant alleged that she _ had

not received the statutory notice

required by 5 U.S.C. § 7513. That

Statute provides that an employee

against whom an action is proposed is

entitled to at least thirty days

advance written notice, unless there

is reasonable cause to believe the

employee committed a crime for which a

sentence of imprisonment may be

ingebed and further that the employee

is entitled to a reasonable time, but

not less than seven days to reply. 5

A-23

.8.¢. § 7513(b)(1),(2). Here,

because appellant was absent without

authorization while a nationwide PATCO

strike was in progress, I find the

agency had reasonable cause to believe

appellant was on strike against the

Government, a crime under = §.8.6. §

1918 for which a sentence of

imprisonment can be imposed.

Accordingly, I find the agency's

invocation of the shortened notice

period allowed by 5 U.S.C. § 7513(b)

was proper. See Schapansky, supra, at

8. Because the charges against

appellant were relatively simple in

nature, I find that the seven days

afforded by the agency for appellant

to reply was a reasonable time in

accordance with 5 U.S.C. §

7513(b)(2). Id.

Appellant also alleged that the

agency had committed error by not

A-24

advising her in its proposed removal

notice of the fifth amendment

protection against self

incrimination. The appellant,

however, failed to show how the

agency's failure to give such warning

contsituted procedural error, and

further, failed to show or even allege

that such error, if it was error, was

harmful.> Before an agency action may

be reversed on the basis of harmful

error, the appellant must show that

the error was committed and that the

error was harmful. Parker v. Defense

Logistics Agency, 1 MSPB 489 (1980).

Thus, I find appellant has failed to

present sufficient evidence or

argument that would warrant reversal

of the agency's removal’ because it

failed to give her any fifth amendment

warning.

Although not an affirmative

A-25

defense, appellant also challenged the

penalty of removal in her case. She

argued that the removal was

unreasonable, arbitrary, capricious,

and an abuse of discretion. She

further claimed, in several variously

articulated arguments, that her

removal did not promote the efficiency

of the service.

A removal action may be taken

against an employee for "such cause as

will promote the efficiency of the

service." 5 U.S.C. § 7513(a). It is

the agency's burden under 5 U.S.C. §

7701(c)(1)(B) to Support that

determination by a preponderance of

the evidence. E.G. Ketterer v.

Department of Agriculture, 2 MSPB 459

(1980). Under 5 U.S.C. § 7311, "[A]n

individual may not accept or hold a

position" in the federal government if

he “participates in a strike against

A-26

the Government," and 18 U.S.C. § 1918

reiterates the provisions of 5 U.S.C.

§ 7311 and makes a violation therof a

crime. I find that disciplinary

action for a violation of the

provisions of those statutes, as well

as a charge of absence without leave,

constitutes such cause as will promote

the efficiency of the service.

Schapansky, supra, at ll. Moreover,

the highly sensitive and important

nature of an air traffic controller's

position, the fact that appellant was

advised in advance of the illegality

and possible consequences of striking,

her refusal to avail herself of the

Opportunity to return to work without

facing termination, © together with

the seriousness of the offense as

indicated by the statutes prohibiting

Striking, provide overwhelming reasons

to Support that removal is an

A-27

appropriate penalty. I find that

appellant's removal from employment

with the FAA for striking against the

United States Government is clearly

within the tolerable limits of

reasonableness. Johnson, supra, at

16; Schapansky, supra, at 1l; see

Douglas v. Veterans Administration,

MSPB Docket No. ATO75299006 (April 10,

1981). Therefor2, upon consideration

of all evidence and arguments

presented in this case, I find the

agency's decision is sustained under 5

U.S.C. § 7701(c).

Decision

The agency's removal of appellant

on August 22, 1981, is AFFIRMED.

This decision is an _e initial

decision and will become ae final

decision of the Merit Systems

Protection Board on January 19, 1983,

unless a petition for review is filed

A-28

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, 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-29

(a) New and material evidence is

available that, despite due diligence,

was not available when the record was

closed, or,

(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)

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 United States Court of

Appeals for the Federal Circuit no

later than 30 days after appellant's

receipt of the Board's final order Or

decision.

FOR THE BUARD:

WILLIAM W. CARNES

Presiding Official

A-30

FOOTNOTES

1 This appeal was previously

consolidated in the appeal of Norris

et al Vv. FAA, Docket No.

DA075281F1321.

“ In summary, the notice alleged

that appellant participated in a

strike against the United States

Government from 2 p.m., August 4,

1981, through the date of the issuance

of the proposal notice in violation of

5 0.8.C. § 7311 and 18 U.8.C. § 1918,

and that she was absent’ without

authorization for that time period.

3 Parties may stipulate as to any

matter and such stipulations satisfy

any burden of proof thereon. 5 C.F.R.

§ 1201.66 (1982). In an adverse

action appealed to the Board, the

A-31

agency has the burden of proof for

Supporting its reason for the action

by a preoponderance of the evidence.

5 U.S.C. § 7701(c)(1)(B). A

preponderance of the evidence is,

"That degree of relevant evidence

which a reasonable mind, considering

the record as a whole, might accept as

sufficient to support a conclusion

that the matter asserted is more

likely to be true than not true." 5

C.F.R. § 1201.56(c)(2) (1982).

4 Under 5 U.S.C. § 7701(c)(2), the

agency's decision may not be sustained

if the appellant:

(1) shows harmful error in the

application of the agency's procedures

in arriving at such decision;

(2) shows that the decision was

based on any prohibited personnel

practice described in 5 U.S.C. §

A-32

2302(b); or

(3) shows that the decision was not

in accordance with law.

5 Harmful error is, “Error by the

agency in the application of its

procedures which, in the absence or

cure of the error, might have caused

the agency to reach a conclusion

different than the one reached. ..."

5 C.F.R. § 1201 .56(¢)(3) (1982).

6 Pursuant to President Reagan's

announcement that controllers absent

from work without authorization would

have a grace period to report to avoid

being considered on strike and

termination action initiated, the FAA

had established a deadline for each

controller to return to work as that

controller's first scheduled shift

beginning at or after 11:00 a.m. EDT,

A-33

on August 5, 1981. See Schapansky,

supra, at ll. The documents and

testimony in this case reflect that

appellant's deadline was her scheduled

shift beginning at 10:00 a.m. CDT,

August 5, 1981.

7 As modified by Section 127 of the

Federal Courts Improvement Act of

1982, to be codified at 28 U.S.C. §

1295(a)(9).

No.

A-34

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1986

P. M. BERGH, et al *

MILTON C.

CROISSANT,

LARRY L. JOHNSON,

et al,

et al

JOHN C.HOLEN,

et al

MYRON L. THOMSON,

et al

JOHN W.KARR, et al,

STUART F. ETTER,

et al,

MELVIN L.BEEBE,

et al,

WILLIAM C.

JOHNSON, et al,

Vv.

DEPARTMENT OF

TRANSPORTATION, FAA

Respondent.

*enenenenenevreeeeeeneeneeenee eee ee & &

Appeal No.

85-1102

Appeal No.

85-1103

Appeal No.

85-1106

Appeal No.

85-1108

Appeal No.

85-1240

Appeal No.

85-1241

Appeal No.

85-1242

Appeal No.

85-1243

Appeal No.

85-1245

DECIDED:

July 2, 1986

Before FRIEDMAN,

Circuit Judges,

Judge.

SMITH,

PRIEDMAN,

and BISSELL,

Circuit

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A-35

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-36

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-37

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

Gasmissed its charges against’ the

reinstated controllers while denying

petitioners this benefit."

aa

Je

meer a

eat, ae

.

= ;

A-38

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-39

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

: »

reo

we br ' ae

ip}

Wd rel

A-40

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 Litdenktne, 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-41

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-42

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-43

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 A 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-44

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-45

The eg 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-46

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.C. 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-47

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.

D. Two of the petitioners

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

No. 85-1245) contend that their

failure to report for work resulted

A-48

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

432 (1984). Por 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