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

86-661: |

OCT iG i

JOSEPH F. SPANIOL, JR,

CLERK

496

—_

NO. ao

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1986

JOHN PATRICK ALLEN, and ALEXANDRA

GEORGEO,

Petitioners,

=

OFFICE OF PERSONNEL MANAGEMENT, FAA,

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 Strect

Memphis, Tennessee 38103

(901) 523-0301

Attorneys for Petitioners

NO.

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1986

JOHN PATRICK ALLEN, and ALEXANDRA

GEORGEO,

Petitioners,

Ww

OFFICE OF PERSONNEL MANAGEMENT, FAA,

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

GUESTION PREGENTED cic cccccendecuneeeeasca

OPINIONS 2 ere eee ee me

Ri G4 tg yt) ae ee ee ere ee ee eS

STATUTES AND REGULATIONS.........+2223

STATEMENT OF THE CASE... cccccccccccescd

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

Ce ee ks 6 6 6s 66-6 Dawe eee eee ee

DOPE 6 k 2's k% 6 404 REWER OEE eee

TABLE OF AUTHORITIES

Pages

CASES

Bivens v. TVA

S Gere GEe CAPOd cv ccsvcsecéas 11,20 ,21 \

Bergh v. DOT,FAA,

TRS Fete EOFS CEPOE) cc cccae 2,6,9,10,11

Douglas v. VA

> We 2Oe CEPOL) sc cbd deer eecseews 11,12

Drummer V. GSA,

Ba WEE S2e LEPOS) ocvessccvasecse 11,20

Filip v. VA, |

Ee GE SEF CARRS vcccncccstusanas 11,20

Norwood v. FAA,

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

Phillips, Inc. v. Walling

SSS We. GEO LAPS Coser ievccecences 14

Schapansky v. DOT, FAA

FSD Rae GLE LAPSE 640.6 6662 0 cer eases 13

United States v. Dotterwich

JEU Gels 297 CEPSS) ccccecas er ee ee 24

Washington v. TVA

© WOM 2! CEPOAD ccc ve cecsccceseus 19, 21

Wilson v. U. S. Postal Service

ah We Ge CAPE 64 46a hb 666 0% slAis 20

Wirtz v. Ti Ti Humus Company

STS Cade BOF VEER CEE s LEFSF cc cce es cd

Woody v. GSA

6 MSPR 468 (1981)......... ce ccee 10, 11

Yick Wo v. Hopkins

118 U.S. 336 (1556)... cece coseedhy 22

STATUTES AND REGULATIONS

5 U.S.C. § 2301(b).....6+63, 18, 23, 24

S U.B.Cw BF Foikacecvscccccciossecressd

5 U.S.C. §$ 7513(d) cc ccccccccee cceee ed

S U.B.C. & FOL cccscvcessesse 8, 18, 23

> U.8.C. § F702. ..00% Cesk enceedece 26

5 U.E.C. § FIOZ(C) ccccccccceces cocedy, 8

28 U.S.C. § L254(1l) ccc cer sccccceee ee :

OTHER DOCUMENTS

Breaking Trust, Director's

Monograph, U. S. Merit Systems

Protection Board Office of Merit

Systems Review and Studies,

|) |e Ae ’ res < ef

-iii-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

JOHN PATRICK ALLEN, and

ALEXANDRA GEORGEO,

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 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

Vv. 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).

_ A = a

-_ a > = MPN ids

=>

-

ae

rrr

3

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 UU. 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

os

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 7 that disparate

treatment in discipline which results

from settlement of cases before the

Merit Systems Protection Board does

-l10-

not violate the prohibitions against

disparate treatment in discipline

found in the Civil Service Reform Act

and the United States Constitution.

I. FAILURE TO GRANT THE WRIT WILL

RENDER THE EQUAL TREATMENT

GUARANTEES OF THE CIVIL SERVICE

REFORM ACT AND THE U. Ss.

CONSTITUTION MEANINGLESS.

The decision of the U.S. Court of

Appeals for the Federal Circuit in

this case, relying on its decision two

weeks earlier in Bergh v. Department

of Transportation, FAA, 794 F.2d 1575

(July 2, 1986), has the effect of

reversing the prior rule of law which

required government agencies to prove

by a preponderance of the evidence

that there were legitimate reasons for

disparate treatment of employees for

Similar alleged misconduct. Woody v.

wttn

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, gaa

(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 oe 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.

7

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 Appeais

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

a

a

i.

-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,

_-14-

Remediai 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 desigred to

protect" with an eye toward carrying

out the intent of Congress and the

will of the people in passing

enactments to remedy past abuses,

Wirtz v. Ti Ti Humus Company, 373 F.2d

209 (4th Cir. 1976), citing Phillips,

Inc. v. Walling, 324 U.S. 490, 493

(1945).

The recent MSPB- BREAKING TRUST

report concluded that the merit system

principles and prohibited personnel

practices, "Taken together ee

constitute a sort of 'Magna Charta' or

constitution of federal employment

law. BREAKING TRUST, Prohibited

Personnel Practices in the

mY eee

ae

Pe na 6d is Beye

EN ae ME ee iy ee ee eA

~~ ee | en ''

ain

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 fized 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

— SE

-16-

penalty of removal for striking was

reduced to a suspension without pay

for being Absent Without Leave and

implemented through secret settlement

agreements. Id.

The “secret settlements" #£4were

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 PAA. 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

2 =

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ath; eupds sh ‘3h

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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 wuether 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

-18-

we ae, - sata all

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

i preponderance of the evidence, must be

| reversed where the employee shows that

Wt Sin hts |

ai@e

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

,

7

:

A lpm

eee !

oA

ciieistaitns msec nan ssonaeleaall

Me

reearece eo ere ae

«Rife

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 ane thereafter

introduction of evidence of unequal

treatment inberent in the 123 being

an

=

y

,

} =

tage 0

tet

ee) |

iii isis mcisceansineies

atta

rehired through secret ' settlements,

Petitioner was not afforded the same

procedural rights and remedies’ as

fellow JU. S. Government emplovees

(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

=22e

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

Vv

=29—

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)

athe

and (b)(8)(a) inherent in the secret

settlement] and that (C) the decision

was not in accordance with the law and

administrative decisions of the MSPB

relating to unequal penalties’. for

equal offenses.

The language of the statute

requires only one of these’ three

elements be present for a decision to

be overturned. In this case, all

three elements were present, providing

the Court below with strong-= and

compelling grounds for reopening the

record in the interest of justice. If

the Civil Service Reform Act is to be

"treated as a working instrument of

government and not merely as a

collection of English words," United

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

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

treatment of Government employees who

commit similar offenses must be

a 2K

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.

> U.S.C. Tred. [Emphasis added] A

remand on this crucial Civil Service

Reform Act and constitutional law

issue is indeed a very small price to

at7«

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,

ay

Dan M. Norwood

BYRD, COBB, NORWOOD, LAIT,

DIX & BABAOGLU

99 North Third Street

Memphis, TN 38103

(901) 523-0301

October 1986

=29<

CERTIFICATE OF SERVICE

I hereby certify that a copy of

the foregoing Petition for Writ of

Certiorari was sent by commser 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. Nor#oo

=36-

TABLE OF CONTENTS

Page

Decision of the Court

of Appeals for the Federal

en a kis a oa a Oek 666666 66060 bE

Decision of the Merit

Systems Protection Board......3

Decision of the Presiding

Official of the Merit

Systems Protection Board.....10

Bergh v. Dept. of Transpor-

tation, FAA decision........+.36

A-l

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

JOHN PATRICK ALLEN,*

and ALEXANDRA *

GEORGEO, ~ sd

* Appeal No.

* 85-1123

Petitioners, *

”

Vv. * MSPB Docket Nos.

* ATO75281F2352

* ATO75281F2396

*

DEPARTMENT OF *

TRANSPORTATION, *

FAA, *

*

*

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

petitioners’ removal by the Federal

Aviation Administration, Department of

Transportation, are affirmed.

A-2

OPINION

Petitioners Allen and Georgeo

bring 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 Allen

and Georgeo. Assuming, without

deciding, that this issue was

preserved before the board and is now

a proper subject in this appeal, 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 Allen and Georgeo the

requested relief.

A-3

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN PATRICK ALLEN, ET AL l

Vs Docket No,

ATO75281F2352

DEPARTMENT OF TRANSPORTATION.

OPINION AND ORDER

Appellants have petitioned for

review of the initial decision dated

January 14, 1983, sustaining their

removal from the position of Air

Traffic Control Specialist at the air

traffic control facilities in

Florida. The agency based the removal

action on charges of participating in

a strike against the United States

Government in violation of 5 U.S.C.

§731l1 and 18 U.S.C. §1918, and

unauthorized absence (AWOL).

Upon consideration of the

appellants' petitiion, we find that

the legal issues raised have been

A-4

addressed and resolved by the Board. 2

that the presiding official's findings

as to those legal issues are

essentially consistent with ours, and

that any inconsistency in the

presiding official's determinations on

those issues would not affect the

outcome of these appeals. In addition,

to the extent that the arguments made

in the appellants' petition relate to

the presiding official's factual

determintions, we find that the

appellants’ have not demonstrated any

factual error by the presiding

official, based on specific references

to the record, sufficient to warrant

the Board's full review of the

record. See Weaver v. Department of

the Navy, 2 MSPB 297, 299 (1980).

This is the final order of the

Merit Systems Protection Board in

these appeals. The initial decision

A-5

sustaining the appellants’ removal

shall become final five (5) days from

the date of this order. 5 C.F.R. §

1201.113(b).

Each appellant is hereby notified

of the right under 5 U.S.C. §7703 to

seek judicial review of the Board's

action by filing a petition for review

in the United States Court of Appeals

tor the Federal Circuit, 717 Madison

Place, N. W., Washington, D. C.

20439. The petition for judicial

review must be received by the court

no later than thirty (30) days after

the appellant's receipt of this order.

FOR THE BOARD:

Nov. 9, 1983

Robert EB. Taylor

Secretary

Washington, D.C.

Attachment: Statement of Board's

policy on service of its opinions and

orders.

A-6

APPENDIX

John Patrick Allen

Prank J. Baran

Gerald Verne Blackwell

Jay Calvin Bronson

George R. Buesser

John A. Carey, Jr.

Christopher M. Corcoran

Robert E. Dancho

Alan Daniel Dippy

{eter R. Donaldson

William Allen Dowe

Thomas L. Gammon

Alexandra Georgeo

David L. Gordon

James Edward Guldi

Joseph P.Harris

Michael Dale Harris

William Richard Hicks

Curtis Horton

Sam PF. Huddleston, Jr.

Harold E. Jacobs

Charlie L. Johnson

Terry Lee Jones

Robert Keith

Henry R. Kitchens

Johns Charles Levings

Michael Leroy Lovins

Roderick D. Morris

Michael J. Mueller

Robert Nocito

John Patrick O'Dea

Oscar N. Olin

Charles C. Runion, Jr.

Jimmy Dee Rushing

Bruce P. Sheekey

Phillip A. Swain

Gloria J. Tomlin

James A. Von Dane

Gary T. Wall

Quincy T. Walls

William N. Wiggins, Jr.

Richard A. Wright

ATO75281F2352

ATO75281F2353

ATO75281F2359

ATO75281F2366

ATO75281F2370

ATO75281F2373

ATO75281F2376

ATO75281F2383

ATO75281F2385

ATO75281F2386

ATO75281F2388

ATO75281F2394

ATO75281F2396

ATO75281F0098

ATO75281F2401

ATO75281F2404

ATO75281F2405

ATO75281F2408

ATO75281F2411

ATO75281F2413

ATO75281F2417

ATO75281F2418

ATO75281F2419

ATO75281F2421

ATO75281F2423

ATO75281F24 30

ATO75281F2433

ATO75281F2440

ATO75281F2441

ATO75281F2442

ATO75281F2444

ATO75281F2447

ATO75281F2463

ATO75281F2464

ATO75281F2467

ATO75281F2473

ATO75281F2479

ATO75281F2480

ATO75281F2482

ATO75281F2483

ATO75281F2489

ATO75281F2491

A-7

Larry D. Yochem

Nancy J. O'Donnell

Richard P. Abrams

Frank Earl Brankenwagen

Jimmy Lee Brooks

Robert J. Carr

Dennis Blair Connors

John F. Crow

Douglas Lester Denney

Jerry Wayne Medders

Steven Wayne Nelson

Leona Olivia Norman

Kenneth V. Prescott

Edgar Russell

William F. Sweeney

John C. Whiteley, Jr.

Harold T. Wilson

Orville Lacy Wright

ATO75281F2493

ATO75281F2496

ATO75281F2498

ATO75281F09 39

ATO75281F0940

ATO75281F2504

ATO75281F2505

ATO75281F2506

ATO75281F2507

ATO75281F2517

ATO75281F0936

ATO75281F2519

ATO75281F2522

ATO75281F2524

ATO75281F2526

ATO75281F2729

ATO75281F2529

ATO75281F2530

A-8

FOOTNOTES

1. An initial decision, applicable to

the consolidated appeals of 94 air

traffic controllers, was issued by the

Board's Atlanta Regional Office under

the caption of Agolini v. Department

of Transportation, MSPB Docket No.

ATO75281F2351 (January 14, 1983). A

consolidated petition for review was

filed on behalf of 63 of those

appellants, but two subsequently

withdrew. In addition, a separate

opinion and order will be issued with

regard to William T. Sedgwick.

Since appellant Agolini did not file

a petition for review, the instant

petition will therefore be adjudicated

under the name of Allen v. Department

of Transportation, MSPB Docket No.

ATO75281F2352. The 60 appellants

affected by this opinion are listed in

the attached Appendix.

2. With regard to the legal issues,

the appellants’ petition for review

and the briefs submitted in support

thereof are identical to thos

addressed and resolved by the Board in

Bangerter v. Department of

Transportation, MSPB Docket NO.

SLO75281F0279 (September 27, 1983.

See also McPartland v. Department of

Transportation, MSPB Docket No.

DAO75281F1018 at 5 (February 8, 1983)

(cancellatioin of annual leave); Adams

v. Department of Transportation, MSPB

Docket No. NYO75281F0424 at 22 (April

25, 1983) (propriety of the decision

to deny leave); Jackson v. Department

of the Navy, 5 MSPB 456, 457 (1981)

(discretion of agency to deny sick

leave if not sufficiently documented) ;

A-9

Baracco v. Department of

Transportation, MSPB Docket No.

NCO75281F0895 at 17-19 (harmful

effects of procedural errors by

agency).

A-10

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

GERALD L. AGOLINI, ET AL l

CASE NO. ATO75281F2351

Vv. DATE: January 14, 1983

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

INTRODUCTION

Appellants filed appeals from the

agency's actions removing them from

the position of Air Traffic Control

Specialist.

JURISDICTION

The actions appealed were effected

under subpart D of Part 752 of the

Office of Personnel Management

rgulations, which was promulgated

pursuant to OPM's authority under 5

U.S.C. § 7514. The record reflects

that appellants were covered employees

as defined by subpart D, and were

entitled to appeal these actions to

the Board. See 5 U.S.C.

§§7511(a)(1)(A), 7512, 7513(d); 5

C.F.R. §§752.401(a), 752.401(b)(1),

752.405(a). I therefore find that the

appeals are properly before the Board

for adjudication.

ANALYSIS AND FINDINGS

The agency proposed appellants'

removals on the basis of two charges:

Sommermemnnronennamer irre

A-11

(1) participation in a strike against

the United States Government in

violation of 5 U.S.C. §7311 and 18

U.S.C. §1918; and (2) unauthorized

absence. Both charges stem from

appellants’ failure to report for duty

on various dates in August of 1981.

The Board has taken official notice of

the fact that members of the

Professional Air Traffic Controllers

Organization (PATCO) engaged in an

illegal strike against the Federal

Government from August 3, 1981 through

at least August 6, 1981. Ketchem v.

Department of Transportation, MSPB

Docket NO. DAO?S291F0/13 (5/28/82).

In addition, the Board has found that

an employee's unauthorized absence

during the period of such a strike may

constitute a prima facie case of said

employee's participation therein.

Schapansky v. Department of

Transportation, MSPB Docket No.

DAO75281F1130 (10/28/82); Jones

v.Tennessee Valley Authority, MSPB

Docket No. ATOTSIS0L0300 (3719/82) ;

Ducket and Yardley v. Tennessee Valley

Authority, MSPB Docket No.

ATOTS38010325 (2/19/82).

Striking has been defined as the

"actual refusal in concert with others

to provide services to one's

employer." United Federation of

Postal Clerks v. Blount, 2325 F. Supp.

879 (D.D.C.), affirmed, 404 U.S. 802

(1971). In Ketchem, supra at page 9,

the Board stated that where an

employee is charged vith participation

in the PATCO strike “on dates

subsequent to August 6, 1981, the

agency bears the burden of proving by

direct evidence that a strike was in

a

PON i BG CPU PLN esses PS ea a NL A PN I OI Es ee Ree See A

A-12

fact in progress on the date charged,

and that the employee could have

returned to work on that date." In

this regard, there is no dispute that

an employee who failed to report for

his or her “deadline shift" (the first

regularly scheduled shift after 11:00

a.m. on August 5, 1981), would not

have been returned to an active duty

status if he or she attempted to

return after his or her deadline had (

passed. While picketing and other

"strike activity" continued for

several weeks, or even months, after

August 6, 1981, the agency effectively

ended any particular employee's

participation in the strike after the

employee had missed the "deadline

shift", and no longer had an

opportunity to "provide services", per

se. My findings below with respect to

the striking charge will therefore be

limited to each appellant's duty days

from August 3, 1981 through the date

of his or her "deadline shift". This

same rationale, however, is

inapplicable to the charge of

unauthorized absence. Notwithstanding

the fact than an employee would not

have been placed in an active duty

status if he or she attempted to

return to work after his or her

deadline had passed, such an employee

could have been entitled to be placed

in a non-duty status, with pay. Ata

minumum , any absences on and after

the date that the agency rebuffed his

or her offer to return to work would

be "authorized", regardless of the pay

or leave status recorded by the

agency. However, unless the employee

appeared for duty, or otherwise

communicated to the agency a desire to

return to work, I find that the agency

A-13

could validly charge the employee with

unauthorized absence on previously

scheduled duty days subsequent to his

or her deadline.

The agency presented the testimony of

the Chief or Deputy Chief of each of

the three facilities involved, and/or

documentary evidence (watch schedules,

Sign-on logs, memoranda and/or time

and attendance records) to establish

that each of the appellants was absent

without authorization on one or more

of her “deadline shift". I find this

evidence to be sufficient to establish

a prima facie case of strike

participation with respect to each of

the appellants. In light of this

finding, the burden of persuasion now

shifts to each appellant to show that

he or she “had no knowledge of the

existence of the strike Or to

demonstrate that his [or her] absence

was due to some factor other than

intentional participation in the

strixe." Schapansky , supra, at 6. In

this regard, several of the appellants

did allege specific reasons for their

absences. Each will be addressed

below.

William Sedgwick became a member of

PATCO's national negotiating team in

June of 1980 and, prior to August of

1981, he made several trips to

Washington, D.C. in connection with

contract negotiations. On each of

these occasions, he received prior

approval from his Chief John

Atkinson, who authorized the issuance

of a Government Travel Request (GTR)

for appellant's airline tickets and,

if time allowed, the issuance of a

travel advance. Appellant claims that

he went to Washington, D. C. on August

A-14

2, 1981 based upon a July 30 or 3l,

1981 communication from Robert Poli,

President of PATCO National. He

testified that he did not request Mr.

Atkinson's approval of the trip

because Mr. Poli had told him to keep

it a "secret", and because Mr.

Atkinson had once told him that he

need not get his approval in advance

if he got a \"last minute" call. de

also testified that he believed

himself to be on admininistrative

leave on and after August 3, 1981.

I\ find Mr. Sedgwick's explanation of

his absences to be incredible _ for

several reasons. There was no “last

minute" notice of the trip. Appellant

knew of the trip 2-3 days prior to his

departure, yet did not request Mr.

Atkinson's approval. Nor did he

subsequently contact Mr. Atkinson to

obtain approval as he was supposed to

under his own “last minute" scenario.

In addition, the agency submitted an

affidavit from the Director of FAA's

Office of Labor Relations who stated

that PATCO had not requested nor had

his office approved, the attendance of

Mr. Sedgwick at any negotiating

sessions after June of 1981. (Agency

EX. 4). On cross examination,

appellant admitted that he attended no

negotiating sessions in August of

1981, but rather was waiting to review

any proposed contract. Had the trip

been authorized, there would have been

no reason to keep it a "secret", I

therefore find that appellant's trip

and his absences on and after August

3, 1981, were unauthorized, and that

appellant was so aware, I further

find that his absences were not the

result of any belief on his part that

A-15

he was on administrative leave. Haro.d

Jacobs called his facility on August

5, 1981 and was informed that his

previously approved annual leave was

cancelled and that he was to report

for his next scheduled shift at 8:00

a.m. on August 7, 1981. Appellant

testified that he arrived home at

approximately 1:00 a.m. following a

lengthy drive from Pennsylvania. He

stated that he felt that he would be

too tired to work at 8:00 a.m., and

that he attempted to call his

facility, but the line was busy. He

then called a member of his carpool

who told him that he should come down

to the union hall to find out what had

been going on over the past several

days. Appellant testified that he

went to the union hall at

approximately 3:00 a.m., and _ heard

that some controllers had been told

that they were already fired. He

claims that he therefore believed that

he had also been fired, and proceeded

to return home and go to bed.

Mr. Jacobs‘ stated reason for not

reporting for work on and after August

7, 1981 could be termed ridiculous,

but it is, at best, incredible. He

admits that he had been told that he

could, and should, report for duty on

August 7, 1981. Yet he allegedly

relied upon hearsay and rumors

regarding other controllers'

situations in deciding not to report

for duty on August 7, 1981 or any date

thereafter, or even contact the

facility again. No reasonable person,

particularly one such as_ appellant

with over 25 years of service, would

effectively abandon his employment on

the basis of ‘ such’ information. I

A-16

therefore find that appellant's

absences on and after August 7, 1981

were not the result of any belief that

he had been fired prior to that date.

James Rushing waS on Sick leave on

July 31 and August 1, 1981, and had a

regular day off on August 2, 1981. He

claims! that he continued to be ill,

and believed himself to still be on

approved sick leave until he allegedly

attempted to return to work on August

6, 1981. However, appellant's team

Supervisor testified, and a call

record in the file reflects, that he

informed appellant on August 1, 1981

that in the event of a strike on

August 3, 1981, all leave would be

cancelled and that appellant was

required to either call in or report

for duty. Appellant did neither.

Moreover, appellant did not mention

his claim of continued illness’ and

entitlement to sick leave in either

his reply to the proposal notice or in

his appeal to the Board. I therefore

find that appellant did not in fact

believe himself to be on approved sick

leave at any time after August 2,

1981.

As neted above, Mr. Rushing claimed

that he attempted to return to work on

August 6, 1981. Mr. David Boyce makes

the same claim. Both testified that

they were turned away by a guard, and

thereby, prevented from reporting for

their "deadline shifts". At the

outset, I note that neither one of

them bothered to include any

information regarding these alleged

incidents in either their replies to

the proposal notices oor in their

petitions for appeal to the Board.

A-17

Both admit that they did not identify

themselves to the guard, who was not

an employee of the agency, and neither

one bothered to call the facility

after he was allegedly turned away.

In addition, Mr. Reisterer, an agency

employee who was involved in security

at the facility, testified that the

contract guards on the gate were not

authorized to turn anyone away. He

testifed that the guards had a list of

those persons who had already missed

their deadlines, and that if any of

those persons wanted to enter, the

guards were to contact agency security

personnel. If either appellant had,

in fact, attempted to report prior to

his deadline, he would have been

allowed to enter. In light of the

foregoing, particularly the inordinate

amount of time which passed before

either appellant raised this claim, I

find that neither's absence on and

after August 6, 1981 was the result of

an inability to enter the facility.

Five of the appellants (Buesser,

Gammon, J. Harris, O'Dea and Spinks)

claim that they were on

previously-approved leave on some of

the dates covered by their proposal

notices. However, three of them (J.

Harris, O'Dea and Spinks) were

informed prior to August 3, 1981 that

in the event of a strike, all leave

would be cancelled. (Agency Files,

Tabs 13). The agency's attempts to

communicate this same information to

appellants Buesser and Gammon was

apparently unsuccessful. However,

both of them were clearly due to

return to duty on August 9, 1981, the

day before the issuance of their

proposal notices. None of these

aN sis 8 aT, ney ETD 1 eae eer #

PRR NTR er ame,

A-18

appellants testified at the hearing

before me, nor otherwise presented

evidence regarding the reasons’ for

their absences from duty. I therefore

find that each of them was absent

without ° authorization during the

strike.

With respect to those appellants whose

leave was cancelled by the agency,

their representative contends that

such cancellations were not permitted

under the agency's negotiated

agreement with PATCO. (Appellants'

EX. FF) I note that section 5 of

Article 28 of the Agreement does state

that approval of leave "shall not be

subject to conditional

curcumstances." However, section 1 of

the same Article provides that leave

May be cancelled in the event of an

"operational emergency". Moreover,

the agency points out that Article 41

of the Agreement provides that’ the

agency retains all rights preserved

under 5 U.S.C. a7106, which provides,

in part, that an agency may “take

whatever actions may be necessary to

carry out the agency mission during

emergencies." I can think of few other

situations which would better qualify

aS an emergency than the mass absence

of the majority of an agency's work

force. I therefore find that’ the

agency could, and did, validly cancel

previously-approved leave.

As to all appellants who were formerly

employed at the Jacksonville Air Route

Traffic Control Center (Hilliard),

their representative argued that the

time and attendance record in each

appellant's file was potentially

inaccurate; that the watch schedules

A-19

were not needed to verify their

accuracy: and that the agency had not

included them in its adverse action

files. In this regard, the Center

Chief testified that he did not rely

on the watch schedules during his

decision-making process. However,

during the hearing, the agency did

produce the appropriate watch schedule

for each of the 65 appellants in

question, and their representative had

an opportunity review them. He

subsequently submitted the watch

schedules of four of the appellants

(Buesser, Gammon, J. Harris and

Jacobs), and I did consider them in

reaching my findings above. In light

of the fact that the representative

did not submit the remaining 61 watch

schedules, I presume that he felt that

they contained no exculpatory

information.

I find that the agency has established

a prima facie case of strike

participation with respect to all of

the appellants, and that none of them

has presented persuasive evidence in

rebuttal. The same evidence

establishes that appellants were

absent without authorization, as

alleged. I therefore find that the

charges as set forth in the proposal

notices are supported by a

preponderance of the evidence, and are

sustained.

Appellants raise several procedural

arguments. In this regard, they bear

the burden of proving error by the

agency in the application of its

procedures, and that said error was

harmful. 5 U.S.C. §7701(c)(2)(A); 5

C.F.R. §1201.56(b)(1). They must show

A-20

that in the absence or cure of such

error, the agency might have reached a

different conclusion. 3 Ceol oh.

§1201.56(c)(3); Parker v. Defense

Logistics Agency, 1 MSPB 489 (1980).

Appellants contend that they received

insufficient notice of the agency's

actions. In this regard, 5 U.S.C.

§7513(b)(1) provides that an employee

is entitled to “at least 30 days'

advance written notice, unless’ there

is reasonable cause to believe the

employee has committed a crime for

which a sentence of imprisonment may

be imposed, Stating the specific

reasons for the proposed action." In

these cases, the agency did have

reason to believe that appellants had

violated 18 U.S.C. §1918, a statute

authorizing imprisonment for up to one

year and a day. I therefore find that

the agency was warranted in shortening

the notice periods in the instant

cases, and that no procedural error

was involved, as alleged. Schapansky,

supra at 8.

Numerous appellants claim that they

received less than seven days in which

to present their oral replies, and

that this constituted reversible error

on the part of the agency. > U.8.C.

§7513{b)(2) provides that an employee

is entitled to "a reasonable time, but

not less than 7 days" to reply orally

and in writing. In Ratley v.

Department of the Army, MSPB Docket

NO. ATO?526110338 (3717/82), the Board

stated than an action “taken without

complying with the procedural

requirements of 5 U.S.C. §7513(b)(2)

clearly constitutes harmfu ~ error

under 5 U.S.C. §7701(c)(2)(A)." In

A-21

that case, the employee was given only

one day to reply to a= proposed

Suspension notice. However, in the

instant cases, each of the proposal

notices stated that the employee was

entitled to seven days in which to

reply. Thus, there was no _ initial

"denial" of a seven-day reply period

as there was in Ratley. Each

appellant raising this issue claims

that the reply period was effectively

shortened when the agency scheduled

his or her oral reply on a date which

was less than seven days after receipt

of the proposal notice. The fact

situations in these cases are

substantially similar to the facts in

the case of Johnson v. Department of

the Treasury, MSPB Docket No.

DCO75209213 (8/27/82) where the agency

issued its decision on a_ proposed

Suspension six days after the employee

received the proposal notice. In its

decision, the Board stated that the

doctrine or harmful error was

applicable to such a situation, and

that the appellant in that case had

not demonstrated any prejudice to her

ability to respond to the charges, nor

shown that the effective shortening of

the reply period "likely had a harmful

effect upon the outcome before the

agency." Id. at 4.

Of the 42 appellants who initially

raised this issue, at least 19 of them

(Agolini, Blackwell, Boyce, Crow,

Donaldson, Farris, Gilbert, Hodges,

Jacobs, Johnson, Kitchens, Lovins,

Manges, Norman, N. O'Donnell,

Prescott, Sweeney, Wilson and O.

Wright), each received a copy of his

Or her proposal notice at least seven

days prior to the date scheduled for

Mee aacu seid

A-22

his or her oral reply, as evidenced by

postal receipts in the agency files,

and/or statements made in appellants’

petitions for appeal. I therefore

dismiss the allegation with respect to

these appellants. Not one of the

other 23 appellants in question has

attempted to show that his oral reply

would have been any different if he

had been afforded additional time.

Moreover, I note that the "script" of

the oral reply was substantially the

same in each case, regardless of the

number of days between receipt of the

proposal notice and the oral reply. I

therefore find that even absent any

"shortening" of the reply periods, it

is unlikely that the agency would have

reached a different conclusion with

respect to any of the appellants in

question, and that any error by the

agency in this regard was harmless.

Johnson, supra; Messersmith v. General

Services Administration, MSPB Docket

NO. DCO7528010253 (12/2/81).

25 of the appellants claim that they

"were denied the right to have a

representative at their oral reply."

In this regard, teach of these

appellants submitted a written reply,

and that he or she had been scheduled

for the oral reply, and that he or she

had been unable to remain at the

agency past a certain time due to

"personal reasons". Each written

reply also stated that the appellant

immediately requested a rescheduling

of his or her oral reply, and that

said request was denied. However, a

written reply is hearsay, and does not

constitute evidence of the matters

stated therein in cases where there is

an evidentiary hearing, and the party

has an opportunity to testify. Pelham

v. Department of the Treasury, MSPB

Docket No. DAO75209140 (12/4/81). All

of these appellants had such an

opportunity, but only one, Mr.

Rushing, presented any testimony at

the hearing. With respect to this

issue, Mr. Rushing testified that at

approximately 4:30 p.m. on the date

scheduled for his oral reply, he was

told by appellant Eugene O'Donnell

that the PATCO representatives could

not stay any longer. On cross

examination, he admitted that he made

no request for a rescheduling of his

oral reply, and, in fact, had _ no

contact with any agency officials on

that day. He stated that he was told

that this representative made an oral

request for rescheduling, but that he

was not present when this request was

allegedly made. He also stated that

he was informed the following day by

one of the PATCO representatives that

there would be no oral reply in his

case.

Mr. Rushing's testimony is at variance

with the statements made in his

written reply that he immediately

requested a rescheduling of his oral

reply and that the agency denied said

request. Moreover, he has’ submitted

no direct evidence of any statements

Or actions by agency officials on the

scheduled date of his oral reply, or

thereafter, which would show that the

agency denied him an opportunity to

submit an oral reply. I therefore

find that none of the appellants in

question, including Mr. Rushing, has

shown any error by the agency, as

alleged. However, even assuming that

the agency did deny any requests for

A-24

rescheduling, and that said denials

were not warranted under the

circumstances, appellants have not

shown that their oral replies, if

made, would have been any different

than the replies made by other

appellants hving PATCO

representatives, at which the

employees stood "mute" with respect to

charges. In such an instance, it is

unlikely that the agency would have

reached a different conclusion with

respect to any of these appellants. I

therefore find that even if the agency

erred, as alleged, such error was

harmless. Messersmith, supra.

All of the appellants allege that the

agency committed harmful procedural

error in that they were denied a

meaningful opportunity to make oral

and written replies. They claim that

the deciding officials were "stripped

of the power to mitigate the penalty”

by virtue of President Reagan's

statement that any air traffic

controllers who did not report for

duty within the grace period “have

forfeited their jobs and will be

terminated.” See Air Traffic

Controllers Strike, 17 Weekly Comp.

Pres. Doc. 845 (Aug. 3, 1981). There

is no dispute that once a deciding

official determined that any given

employee had participated in the

strike and had not returned during the

grace period, the only penalty which

he could impose was removal. In this

regard, the questions of mitigation

and propriety of the penalty in these

cases will be addressed below.

However, with respect to the

allegation of procedural error, the

absence of authority to mitigate, as

in a case involving a_ statutorily

mandated penalty for a given offense,

in no way diminishes the right to

reply to charges set forth in a

proposal notice. Woody v. General

Services Administration, MSPB Docket

No. SFO7528110028 (6/2/81). The

deciding officials in these cases had

both the authority and the

responsibility to determine whether

each of the appellants had engaged in

the conduct set forth in the charges.

(GENOT 141, Appellants Ex. D). I find

that each of the appellants had the

opportunity to provide meaningful

input into those determinations, had

he or she so desired. I therefore

find no error, as alleged.

Appellants also claim-.that they were

subjected to de facto suspension

during the notice periods of the

removal actions. In this regard, they

claim that they were "locked out" by

the agency, and that the agency was

therefore unwarranted in continuing to

carry them as AWOL on those previously

scheduled duty days during the notice

periods. Specifically, they contend

that the agency's actions constituted

Suspensions of more than 14 days,

which are appealable to the Board

under the same statutory and

regulatory provisions as the removal

actions, and that the agency failed to

afford them any procedural rights in

connection therewith. As with = any

allegedly appealable action, the

appellants have the burden of proof

with respect to the Board's

jurisdiction. 5 C.F R.

§1201.56(a)(2).

A-26

Under the agency's own regulations

(Chapter 2, Paragraph 206, Section

a(5) of FAA Order No. 3770.2B -

Appellants’ Exhibit AA) an employee is

normally entitled to be retained in an

active duty status during the notice

period of an adverse action. This

presumes that the employee is ready

and willing to work. The institution

of adverse action proceedings does not

suspend the agency's authority to

administer its leave policies,

including the charging of AWOL for

unauthorized absences on previously

scheduled duty days. In the instant

cases, appellants were not “locked

out", as that term is used in the

private sector. The agency did not

suspend its operations, but rather

continued to perform its mission

despite the drastic reduction in

available manpower. Moreover,

appellants knew that they were still

employees of the agency during this

time, particularly in light of the

"proposed" nature of the notices which

they received. None of these

appellants reported for duty or

otherwise communicated wo the agency a

Willingness to return to work during

the notice period. Had they done so,

and if the agency had subsequently

placed them, "for disciplinary

reasons, in a temporary status without

duties and pay", I could find that the

agency had effected suspensions as

defined by 5 U.S.C. §7501(2).

However, the AWOL charges in question

appear to have been nothing more than

the logical consequences of

appellants’ continued unauthorized

absences, and such charges, in and of

themselves, are not appealable to the

Board. Barger v. Department of

A-27

Justice, MSPB Docket No. SEO75209019

2); Marks v. Department of the

Air Porce, 3 MSPB 1 (1980). I

therefore find that appellants have

failed to meet their burden of proof

with respect to the Board's

jurisdiction.

Notwithstanding my findings with

respect to the Board's jurisdiction, I

find appellants' "appeals" of the

alleged suspension actions to_ be

untimely. 5 C.F R. §1201.22(b)

requires that a petition for appeal be

filed within 20 days after the

effective date of the action being

appealed. Appellants did not

"identify" the alleged suspensions

until after the regulatory time limit

for appeal had expired. Appellants

claim that their untimely

"identification" is permissible under

5 C.F.R. §1201.24(a)(9) which states,

in part, that "([fJailure to raise a

claim or defense in the petition shall

not bar its submission later unless to

do so would prejudice the rights of

the other parties and unduly delay the

proceedings.* However, appellants'

removals were not based upon any

absences subsequent to the issuance of

the proposal notices, and the AWOL

charges in question do not constitute

a “claim or defense". They are, as

appellants state, alleged

suspensions. As such, they are

subject to the same filing

requirements as any other allegedly

appealable actions, including the

regulatory time limit for appeal. I

therefore find that appellants'

"appeals" of the alleged suspension

actions were untimely filed, and that

the record reflects no basis’ upon

’ . eats a the NOE ae

which to waive the time limit for

appeal pursuant to 5 C.F.R. §1201.12.

Appellants claim that they were

subjected to disparate treatment in

that some employees who were striking

during the period of August 3-5, 1981

were allowed to return to work by

reporting at or before the time of

their “deadline shift". However, the

agency made no determination as to

whether an employee had been striking

August 3, 4 or 5, 1981 if he or she

reported during the grace_ period.

(Appellants Ex. M, P 49, Agency's

Answer to National Interrogatory No.

21). Absent such a determination by

the agency or some other competent

authority, appellants’ claim is based

upon the presumption of a fact not in

evidence. Moreover, as in any case

involving a claim of disparate

treatment with respect to the

imposition of discipline, appellants

must show that the alleged disparity

involved similarly situated

employees. Kuhlmann v. Department of

Health and Human Services, MSPB Docket

NO. SLO7528010027 (2/23/82). In this

regard, appellants' own allegation

sets forth a dissimilarity of

Situations with respect to one fact

that is in evidence, i.e., appellants

did not return. I therefore find no

disparity, as alleged.

Unauthorized absence, by its’ very

nature, disrupts the efficiency of the

service. Chiaverini V. United States,

157 ct. Cl. 371 (1962); Desiderio v.

Department of the Navy, 4 MSPB. 171

° As cited by the agency,

Strike participation by a Federal

employee is violative of both civil

\

|

Bates fot a one ~ gle

be ek i Pn ig Gel Bitat ll MAINE inten ws =

A-29

and criminal statutes. > U.S.C.

§7311(3) provides that an individual

may not hold a position in the Federal

Government if he participates in a

strike. This has been held to

establilsh removal as the mandatory

penalty for strike participation.

American Postal Workers Union v.

United States Postal Service, 628 F.

7) eee.060COCdGee0|COCEE. 80= 8.982). In

Schapansky, supra, the Board did not

answer the question as to whether it

had authority to mitigate what appears

to be a statutorily mandated penalty.

Rather, the Board found that in light

of the nature and gravity of the

offense of striking, as well as the

direct, deleterious effects such

conduct has on the efficiency of the

service, mitigation of the penalty

would not be warranted under’ the

standards set forth in Douglas v.

Veterans Administration, MSPB Docket

No. ATO75299006 (4/10/81). I therefore

find that the agency's penalty

selections in these cases were both

reasonable and appropriate.

In summary, I find that the agency

effected appellants' removals for such

cause as will promote the efficiency

of the service, 5 U.S.C. §7513(a).

DECISION

The agency's actions are hereby

affirmed.

NOTICE

This is an initial decision and will

'necome a final decision of the Merit

Systems Protection Board on Feb. 18,

1983 unless a petition for review is

filed with the Board.

A-30

Any petition for review must be filed

with the Board within thirty-five (35)

calendar days after the issuance of

this decision,

Any party to this appeal, the Director

of the Office of Personnel Management

(OPM) and the Special Counsel may file

a petition for review of this decision

with the Merit Systems Protection

Board. The Director may request

review only if he or she is of the

opinion that the decision is erroneous

and will have a substantial impact on

any civil service law, rule or

regulation under the jurisdiction of

OPM. 5 U.8.C. §7701(e)(2). The

petition must specifically identify

the exception taken to this decision,

cite the basis for exception, and

refer to applicable law, rule or

regulation.

The Petition for review must be filed

with the Office of the Socretary,

Merit Systems Protection Board,

Washington, D. C., 20419 no later than

thirty-five (35) calendar days after

issuance of this decision. : a

petition for review is filed, an

informational copy of it should be

forwarded to this office.

The Board may grant a petition for

review when a party submits written

argument and supporting documentation

which tends to show that:

(1) New and material evidence is

available that despite due diligence

was not available when the record was

closed; or

A-31

(2) The decision of the

presiding official is based upon an

erroneous interpretation of statute or

regulation.

Under 5 U.S.C, §7703(b)(1)* an

appellant has the right to seek

judicial review of the Board's final

decision in this appeal. A petition

requesting such review must be filed

with the United States Court of

Appeals for the Federal Circuit no

later than 30 days after appellant's

receipt of the Board's final order or

decision.

For the Board:

Joseph E. Clancy

Presiding Official

* As modified by § 127 of the Federal

Court Improvement Act of 1982, to be

codified at 28 U.S.C. §1295(a)(9).

A-32

APPENDIX

HILLARD, FLORIDA,

NAME CASE NO.

Agolini, Gerald L. ATO75281F2351

Allen, John P. ATO75281F2352

Baran, Frank J. ATO75281F2353

Batick, Kenneth R. ATO75281F2356

Blackwell, Gerald V. ATO75281F2359

Boyce, David E., Jr. ATO75281F2362

Bright, Joseph W. ATO75281F2364

Bronson, Jay C. ATO75281F2366

Buesser, George R. ATO75281F2370

Campbell, Joseph C. ATO75281F2372

Carey, John A., Jr. ATO75281°2373

Catron, James B. ATO75281F2374

Corcoran, Christopher M. ATO75281F2376

Cruess, Frederick W. ATO75281F2380

Dancho. Robert E. ATO75281F2383

Diedrick, Marvin J. ATO75281F2384

Dippy, Alan D. ATO75281F2385

Donaldson, Peter R. ATO75281F2386

Dowe, William A. ATO75281F2388

Gammon, Thomas L. ATO75281F2394

Georgeo, Alexandra J. ATO75281F2396

Gilbert, Warner H. ATO75281F2397

Gordon, David L. ATO75281F0098

Griffin, Gordon E. ATO75281F2400

Guldi, James E. ATO75281F2401

Harris, Joseph P. ATO75281F2404

Harris, Michael D. ATO75281F2405

Harris, William C. ATO75281F2406

Hicks, William R. ATO75281F2408

Hodges, Louis D. ATO75281F2409

Horton, O. Curtis ATO75281F2411

Huddleston, Sam F., Jr. ATO75281F2413

Jacobs, Harold E. ATO75281F2417

Johnson, Charlie L.,Jr. ATO75281F2418

Jones, Terry Lee ATO75281F2419

Keith, Robert ATO75281F2421

Kitechens, Henry R. ATO75281F2423

Levings, John C. ATO75281F2430

Lopez, Anthony F.

Lovins, Michael L.

Millonzi, Lance M.

Morris, Roderick D.

Meuller, Michael J.

Nocito, Robert

O'Dea, John P,

O'Donnell, Eugene P.

O'Keefe, Timothy M.

Olin, Oscar N.

Paulsen, Wayne P.

Reaser, James P.

Rice, Ronald L.

Runion, Charles, C.

Rushing, Jimmy D.

Sheekey, Bruce P.

Spinks, Benjamin H.

Swain, Phillip A.

Tomlin, Gloria J.

Von Dane, James A.

Wall, Gary T.

Walls, Quincey T.

Wheeler, James W.

Wiggins, William N.

Woodham, Sanford G.

Wright, Richard A.

Yochem, Larry D.

ATO75281F2432

ATO75281F2433

ATO75281F0922

ATO75281F2440

ATO75281F2441

ATO75281F2442

ATO75281F2444

ATO75281F2445

ATO75281F2446

ATO75281F2447

ATO75281F2449

ATO75281F2454

ATO75281F2457

ATO75281F2463

ATO75281F2464

ATO75281F2467

ATO75281F2470

ATO75281F2473

ATO75281F2479

ATO75281F2480

ATO75281F2482

ATO75281F2483

ATO75281F0046

ATO75281F2489

ATO75281F2490

ATO75281F2491

ATO75281F2493

JACKSONVILLE, FLORIDA, ATCT

Abrams, Richard P.

Brakenwagen, Frank E.

Britton, Harry A.

Brooks, Jimmy L.

Burchett, Rodney N.

Carr, Robert J.

Connors, Dennis B.

Crow, John F.

Denney, Douglass L.

Eason, Dennis J.

Farris, Frederick H.

Hetherington, W. R. Jr.

Hogan, John T.

Lane, Hale A., Jr.

ATO75281F2498

ATO75281F0939

ATO75281F2502

ATO75281F0940

ATO75281F2503

ATO75281F2504

ATO75281F2505

ATO75281F2506

ATO75281F2507

ATO75281F2509

ATO75281F2509

ATO75281F2513

ATO75281F2514

ATO75281F2515

A-34

Manges, James R.

Medders, Jerry W.

Nelson, Steven W.

Norman, Leona O.

Prescott, Kenneth V.

Rast, Robert E.

Russell, Edgar R.

Sweeney, William F.

Thomas, Arthur H., Jr.

Whiteley, John C., Jr.

Wilson, Harold

Wright, Orville L.

ATO75281F0935

-ATO75281F2517

ATO75281F09 36

ATO75281F2519

ATO75281F2522

ATO75281F2523

ATO752812524

ATO75281F2526

ATO75281F2728

ATO75281F2729

ATO75281F2529

ATO75281F2530

JACKSONVILLE (CRAIG), FLORDIA, ATCT

Manning, John A., Jr.

O'Donnell, Nancy J.

Sedgwick, William T.

* Represented by David R.

ATO75281F2495

ATO75281F2496

ATO75281F2497

Siegel

earaelte

A-35

FOOTNOTES

1 This decision encompasses the

appeals of 94 former air traffic

controllers, 91 of whom are

represented by the firm of Leighton,

Conklin, Lemov, Jacobs & Buckley. The

remaining three appellants are

represented by Mr. David E. Siegel.

Appellants’ names and case numbers

appear in the attached appendix.

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No.

A-36

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1986

P. M. BERGH, et al *

MILTON C.

CROISSANT, et al

LARRY L. JOHNSON,

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.

+e eee eee eee eee ee ee He ee He HE

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,

FRIEDMAN,

and BISSELL,

Circuit

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A-37

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

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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

»

A-39

some controllers found guilty of

Striking, for no reason which can be

discerned from the record." They cite

Douglas v. Veterans Administration, 5

MSPR 280 (1981), and Woody v. General

Services Administration, 6 MSPR- 468

(1981), for the proposition’ that

"where an appellant raises an

allegation of disparate treatment in

comparison to specified employees, the

agency must prove a legitimate reason

for the difference in treatment by a

preponderance of the evidence before

the penalty can be upheld." Woody, 6

MSPR at 488 (citing Douglas, 5 MSPR at

306-07). The Petitioners assert that

the agency "has provided no

explanation, much less any evidence,

as to why it vacated its findings and

dismissed its charges against’ the

reinstated controllers while denying

petitioners this benefit."

A-40

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-41

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

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A-42

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-43

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 (Sth 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-44

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

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A-45

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

feJach petitioner knew when

his next regularly scheduled

shift commenced and elected

vas teas

, ears = ae

A-46

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-47

The Helms statement, however, did

not relate to notifying controllers of

their deadline shifts, but only urged

supervisors to encourage controllers

with whom they were friendly to return

to work. In his testimony Mr. Cox, a

supervisor at one of the towers

involved, explained the scope and

purpose of the Helms statement:

Q. Now in this telecon, Mr. Helms

advised that he did not want

supervisors to be calling

controllers as supervisors, is

that right?

A. That was not a directive. He

suggested that the Agency -- he

said the Agency was not going to

instruct supervisors to make calls

as supervisors to their people.

Q. So he said that as far as the

Agency's position was concerned,

as a supervisor you were not being

directed to call --

A. That's correct.

Q. Controllers, is that correct?

But he did say that the Agency was

A-48

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

neerned 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]

Gismissal of any employee found guilty

of striking." whereas that statut?

permitted the agency to impose a

lesser penalty. We rejected a similar

contention in Schapansky v. Department

7

7

‘

| Nant ee ORR peter amie nor etine Fee | het. ela

A-49

of Transportation, FAA, 735 F.2d 477

(Fed. Cir.), cert denied, 105 Ss. 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

+ Awe

A-50

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, tao 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