# Petition for Writ of Certiorari — Allen v. Department of Transportation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2247%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 479 U.S. 963 ## Text 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 = 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 = SV faevew Bh. atad ® 4 ol. 9am: wy nye ee Muobh:. i i a «A e ay ath; eupds sh ‘3h - io ; a i P| q 4 7 j al Fe 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 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. : yo MEPL Se cd 2 @ eeotet . JUS tegae sees! y RVR « 5 eS rine ‘Tige sear a8 bexagess = f° . Aa a a ee ee ay ee ee ee 7 e e 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 * bs if = 2 ay) aera eee er ee or age Nn pasa ‘ > , "MeEae Ber wer ay ASTM Bee. Bo. St (Mae: TEARS 7 Os ‘ ~ i 4 a &- >T t - - * , ' Lei 529 Bs bet [ Pe? baal z : ’ A sub kw 1 7 ‘ : . . j ‘ io a a) ; { a \ os a . * « ieee # SS =i ’ a ; e : 40 TRENTHACSS © —.. > RE WORT TEM Re: 8 os © £ fr 7 7 a “ . 3 be ra yr ee i & = — : a) PR eR z a hd 7 - Le, “es 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 ! me iG. {7 $gecy : pede ; . , % +18¢ eK J AAD it ie 9 rat s& ; of sis iets eos 6 La lene ; ine ad Reota ines : Si Ize) SNPND. 7998 r AT ee ; hisesIes : Foath crol tena ae 3 ; ni Mey - bane ; 7 > ey lene -s tie 7 vnc’ {[SUS2E Lon? 953 - Cavesees Ka 20 S39O0 1 0 LJee. onl. ja eo 24 ansageses | lavetvabea) oo any Wome 73a Prosi es ae pay fis Gye ys aw 17 Be ale indus Noepe ent 102 Pees RE), Sa Re eget GZ hans S245 = “— “i COL ISAM se care: tes “ore 7 pear ted RS aL ate SE ~ Vere S@hok 7 ries ns cwany a8 - 2 . ae . : , SHD. iy 7 he - Tete) sg aau08 2 ¥ Ps Pe od: ee Se Baye Sie BFES ro | Bit Ge qont Sads > sardine | weer dive = 5. ti S25 26 caokre: 3 Jon Sinow es a2 yaus ry eg bearers ries / hap Vict “a2 tolsd 36 ee PISII Ee: | ee 2 SxULTA2. O82 Sas. Bhat hee pee Biet. aelg od miaeiaisn 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2247%3A1. Public record. Not legal advice.