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

SUPREME COURT OF UNITED STATES

OCTOBER TERM, 1986

STEVEN C. PARRO, et. al., DENNIS J.

ACCAVALLO, et. al., CAROL A. JASINSKI, et.

al., JEFFREY LYNN KLAWITER, et. al.,

WILLIAM P. ASKEW, et. al., JOHN L. HORTON,

et. al., ROBERT L. ALLISON, et. al.,

MICHAEL BARGER, et. al., BRUCE BUKAUSKI,

et. al., JOSEPH D. BADAMI, et. al., JOHN R.

BOESE, et. al., JOHN W. MAC DONALD, et.

al., CHARLES W. FAHRENBRUCH, et. al.,

MICHAEL FENNESSY, et. al., DAVID J. FLAIG,

et. al., MIKREL HH. Baume wee @t., JEFFREY

M. RAYKOVICH, et. al., MICHAEL A. MC NULTY,

et. al., JERRY D. SLAVEN, et. al., DAVID D.

HICE, et. al., THOMAS M. BROCKETT, et. al.,

HAROLD ANDERSON, et. al., BARTON D.

ALEXANDER, et. al., RONALD K. DIXON, et.

al., JOHN A, KENICK, et. al., RAYMOND G.

NORDBLAD, et. al., KENNETH H. BAKER, et.

al., DAVID L. WHITAKER, et. al., JAMES R.

BOUTON, et. al., DENNIS E. KOVACS, et. al.,

aERALD M. BOPRIE, et. al., DALE B. CARTER,

et. al., DOUGLAS J. KEMPSKI, et. al., GARY

L. GREEN, et. al., RICHARD C. CROXFORD, et.

al., BARBARA E. BLANCHARD, et. al.,

Petitioners,

-VS-

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

URT OF APPEALS

L

STEVEN Z. COHEN

Attorney for Petitioners

6735 Telegraph Road

Birmingham, Michigan 48010

(313) 258-9400

October 1, 1986

Questions Presented

ts Whether the federal government is

free to discharge some federal employees

when it decides not to discharge other

federal employees for the same conduct.

7 Whether the Merit Systems

Protection Board is free to deny dis-

covery to parties before it where the

discovery sought is information regard- ing

federal employees who were not discharged

for the same conduct for which the federal

employee parties were discharged.

TABLE OF CONTENTS

Page

DOOR TIOOS PFESCATEE ec ccvccscscne 1

eee OTE vidbaseWeuvwkasd en's 7

og ey a 7

Statutory provisions involved .... 8

Semenmees OF CHE COSE 2c i vecwesvce 11

Reasons for granting the writ .... 18

Ts The Decision Below Conflicts

With

The Decisions Of Other Courts

Of Appeals Which Recognize The

Constitutional Right Of

Employees

And Others Subject To

Punishment,

To Due Process Of Law And Equal

Protection Of The Law....... 18

ni The Decision Below Raises

Significant And Recurring

Problems Concerning Discovery

Of Disparate Treatment In

Proceedings Of Federal

Employees Before The Merit

Systems Protection

EE ary aan ag hee Kd 36

EE Ee Se ae 42

EE eh a ing ay ek ON we 08 43

Opinion and Judgment of Court

of Appeals

Denial of Rehearing of Court

of Appeals

Interrogatories to the Agency

Order ALJ-3

Motion for Production of Documents

Order on Motion for Discovery and

Enjoining, Restraining and Staying

Destruction of Documents

Order on Requests for Witnesses

Appellants’ Regional Interrogatories

Regional Discovery Order

—

INDEX OF AUTHORITIES

CASES: PAGE

Bario v. Dept. of Justice,

oN Pe eee fos. et ree 36-40

a

Bergh et al v. Department

of Transportation, FAA,

PS MB ae es eee 17-18

Brandon v. District of Columbia

Bd. of Parole, 734 F.2d 56 (DC

Cas ee ears eee eee eke 28-3)

Butz v. Glover Livestock Commis-

ten Ca. . S39) Gide tee Peres 32-35

Ciechon v. City of Chicago,

O56 F.20 SUT (7th Cir. 19862). ... 19-25

Giesler v. Dept. of Transpr.,

oP ie ce aes 2 ee 40-4]

Jones v. United States, 617 F.2d

ee Rh 2 eel} eee 32

Villela v. Department of the Air

Force, 727 F.2d 15/4, 1577

(Fed. Cir. 1984) (Nies, J.

ig SE. eS rare area 33

CASES: PAGE

Ziegler v. Jackson, 638 F.2d 776

ba Bee ie, & aa are 19,25-

CONSTITUTIONAL PROVISIONS:

Re eS a Pa PRP eee 8

STATUTES:

Cee ees ee 2k 65 6 Re 7

REGULATIONS:

SO. F eRe BSTC TT OC. BOR iin ccs Tt.

36

PETITION FOR WRIT OF CERTIORARI TO THE

~ UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

The petitioners respectfully

pray that a writ of certiorari issue to

review the judgment and opinion of the

United States Court of Appeals for the

Federal Ciruit entered in this proceed-

ing on June 16, 1986.

Opinion Below

The opinion of the Court of

Appeals, not reported, appears in the

Appendix hereto.

Jurisdiction

The judgment of the Court of

Appeals for the Federal Circuit was

entered on June 16, 1986. A timely

petition for rehearing was denied on

July 11, 1986, and this petition for

certiorari was filed within 90 days of

that date. This Court's jurisdiction

is invoked under 28 U.S.C. §1254(1).

Constitutional and Regulatory Provisions

Involved

U. S. Constitution Amendment \V.

“No person shall be

deprived of life, liberty,

Or property without due

process of law."

SSF Ri GSteer cess Feet. te

DISCOVERY

§1201.71 Statement of purpose.

Proceedings before the Board

shall be conducted as

expeditiously as possible with

due regard to the rights of the

parties. Discovery is designed

to enable a party to obtain

relevant information needed for

preparation of the party's

case. These regulations are

intended to provide a simple

method of discovery. They will

be interpreted and applied so

as to avoid delay and to

facilitate adjudication of the

case. The parties are expected

to initiate and complete needed

discovery with a minimum of

Board intervention.

§1201.72 Explanation and scope.

(a) Explanation: Discovery

is the process apart from the

hearing whereby a party may

obtain relevant information

from another person, including

a party, which has not

otherwise been provided.

Relevant information includes

information which appears

reasonably calculated to lead

to the discovery of admissible

evidence. This information is

obtained for the purpose of

assisting the parties in

preparing and presenting their

cases. The Federal Rules of

Civil Procedure may be used as

a general guide for discovery

practices in proceedings before

the Board. However, the

federal rules shall be deemed

to be instructive rather than

controlling.

(b) Scope: Any person may be

examined regarding any

nonprivileged matter which is

relevant to the issues involved

in the appeal, including the

existence, description, nature,

custody, condition, and

location of documents or other

tangible things, and the

identity and location of

persons having knowledge of

relevant facts. Discovery

requests to nonparties and

nonparty federal agencies and

employees are limited to

information which appears

directly material to the issues

involved in the appeal.

(c) Methods: Discovery may

be obtained by one or more of

the methods provided under the

Federal Rules of Civil

Procedure, including: written

interrogatories, depositions,

«tt.

production of documents or

things for inspection or

copying, and requests for

admission addressed to

parties. Failure to deny a

request for admission shall not

be deemed to constitute a

- binding admission.

Statement of the Case

In August of 1981, the Profes-

sional Air Traffic Controllers Organiza-

tion (PATCO) called an illegal strike

against the Federal Aviation Administra-

tion (FAA).

Petitioners were discharged for

not returning to work at their first

scheduled shift after President Reagan's

moratorium had ended.

Petitioners appealed their

discharges to the Merit Systems Protec-

ie tion Board (MSPB). Their appeals were

heard by administrative law judges of

the MSPB. MSPB proceedings are subject

to statute, regulation, and the Fifth

my

Amendment of the United States Constitu-

tion.

In MSPB proceedings, discovery

is authorized.

Petitioners heard that certain

other members of PATCO who had engaged

in the illegal strike were being rein-

stated voluntarily by the FAA. Peti-

tioners sought discovery concerning

these reinstatements. But the FAA

refused to provide it and the MSPB

refused to order its production.

Petitioners filed

interrogatories to the FAA requesting

information of disparate treatment.

These interrogatories contained the

following two questions:

102. Identify by name, address

and phone number each air

traffic controller who was not

working on August 3, 1981, and

later returned to work at the

same facility at which

Appellant was employed.

Explain the dates such air

traffic controller was not

working, the reasons therefor,

and the dates and circumstances

of his return.

119. Was any air traffic

controller fired in August or

September 1981 and then later

returned to work? If so, state

the name and details of each

such incident.

The MSPB denied petitioners’ motion to

compel answers to these interrogatories,

stating that "to the extent they seek

relevant information," the information

will be produced. However, this

information never was produced.

Petitioners also moved for the

production of the following documents

pertaining to disparate treatment:

D. Details of all adverse

personnel action proposals and

final decisions by the Federal

Aviation Administration since

January 1, 1981 to the present

-13-

and sanctions or remedy imposed.

0. Supply copies of any and

all decisions of the Federal

Aviation Administration and

Merit Systems Protection Board

(or it predecessor) as it

relates to Federal Aviation

Administration employees

charged with AWOL or striking

from 1968 to date.

The MSPB denied this request because it

was either already covered by another

order, not relevant, too broad, or

partially complied with.

In addition, Petitioners

request that Janice Plummer, a

discharged air traffic controller who

was voluntarily reinstated by the FAA,

be produced to testify. The MSPB

decided that her testimony would be

irrelevant:

Janice Plummer

The appellants indicate that

she was a fired air traffic

controller who was returned to

work in a settlement agreement

7s

with the agency. They indicate

that her testimony is necessary

to establish their argument of

unequal protection of law. As

indicated in ALJ-1(c)(g)(1)

(August 16, 1982), "(t)here are

many speculative reasons why

the FAA may have decided to

reinstate or rehire a former

controller rather than contest

that particular controller's

appeal before the Board. As

succinctly explained in

ALJ-1(c)(g), the FAA's

reconsidered decisions to

rehire or reinstate former

controllers would have no

relevance to the merits of the

original decisions to remove

. those controllers." The

testimony of this witness is

deemed to de irrelevant to the

issues of this appeal.

In further interrogatories on

the regional level, Petitioners

requested the following information

pertaining to disparate treatment:

19. Set forth in detail the

names of controllers who missed

the 48-hour deadline and were

allowed to return to work.

62. Has the FAA considered

reinstatement of any

ett.

controllers who engaged in

alleged strike activity? If

so, state the controllers

involved, the reasons for such

review and action that might

possibly be taken with respect

to their potential

reinstatement.

The MSPB denied interrogatory

19 as being "repetitions" and

interrogatory 62 as lacking relevance.

On appeal, the Court of Appeals

found no prejudice by reason of the

above denials of information, documents,

and witnesses. The Court wrote:

Petitioners allege that they

were denied equal protection

of the law because some air

traffic controllers were

treated differently from the

manner in which petitioners

were treated. While peti-

tioners argue that similarly

situated individuals may not

be accorded different treat-

ment by their employer, they

do not point to any evidence

in the record to show that

any of them is similarly

situated to any individual

who was treated differently

«tie

from the manner in which

petitioners were treated. In

any event, "“La]ln agency need

not exercise its discretion

identically in every case.

‘A penalty that is within the

authority of the agency is

not rendered invalid in a

particular case because it is

more severe than sanctions

imposed in other cases.'"

Villela v. Department of Air

Force, 727 rbd 1574, 1577

(Fed. Cir. 1984) (quoting

Jones v. United States, 617

Fi46 2204 620. tees Bs

1980). Uneveness [sic] in

the application of a penalty

is not a ground for invali-

dating it. Schapansky v.

Department of Transporation,

FAA, 735 F.2d 477 (Fed. Ut.

T5984).

(See full decision of the court in the

Appendix).

In another PATCO case scheduled

with the present case for oral argument

before the Federal Circuit, the Court

wrote: "The parties stipulated that

‘'LtJhe FAA nationwide has reinstated

some air traffic controllers/appellants

-|/-

who were removed for participation in

the [Lair traffic controllers] strike

pursuant to settlement agreement. '"

Bergh et al v. Department of Transporta-

tion, FAA, Fed. Cir (July 2, 1986).

REASONS FOR GRANTING THE WRIT

vs THE DECISION BELOW

CONFLICTS WITH THE

DECISIONS OF OTHER COURTS

OF APPEALS WHICH RECOGNIZE

THE CONSTITUTIONAL RIGHT

OF PUBLIC EMPLOYEES, AND

OTHERS SUBJECT TO

PUNISHMENT TO DUE PROCESS

OF LAW AND EQUAL

PROTECTION OF THE LAW.

Public employees are entitled

to due process and equal protection of

law under the United States Constitu-

tion. The petitioners were federal

employees. They are protected by the

due process clause of the Fifth Amend-

-18-

ment of the United States Constitution.

The Fifth Amendment also provides for

equal protection of the law.

Under the Constitution, public

employees are to be disciplined similar-

ly for identical conduct and are

entitled to fair hearing procedures when

they have been disciplined. Two leading

cases are Ciechon v. City of Chicago,

686 F.2d 511 (7th Cir. 1982) and Zeigler

v. Jackson, 638 F.2d 7/76 (5th Cir.

1981). Both cases held that the dispar-

ate treatment of public employees for

similar conduct was unconstitutional.

In the present case, the petitioners

claim disparate treatment for similar

conduct.

In Ciechon, two paramedics were

involved in a situation resulting in the

Se

death of a person they were called to

assist.

One paramedic was discharged

and the other was not discharged. The

court of appeals found that the dispar-

ate treatment accorded the discharged

employee was unconstitutional, and

reversed the discharge. As to due

process,

the court of appeals explained:

Due process of law fundament-

ally requires a fair proceed-

ing. bBoddie v. Connecticut,

401 U.S. 371, 375, ST S.Ct.

780, 784, 28 L.Ed.2d 113; In

re Murchison, 349 U.S. 133,

S96 FO Scbee CZs, GES, 99

L.Ed. 942; Wong Yang Sung v.

McGrath, 339 U.S. st 495-50,

70 S.Ct. 445, 453-454, 94

L.Ed. 616. Fairness is

insured by procedural safe-

guards which require proper

notice and an opportunity to

be heard. See, e.g., Gold-

berg v. Kelly, 3 oS. 204,

-68, -Ct. 1011, 1020,

25 L.Ed.2d 287. Fairness

also dictates that the pro-

cedure itself not be abused

or misused. No matter how

complete the panoply of

-20-

procedural devices which

protect a particular liberty

or property interest, due

process also requires that

those procedures be neutrally

applied. Wong Yang Sung v.

McGrath, 339 cs > 58, 70

S.Ct. 445, 454, 94 L.Ed. 616;

see In re Murchison, 349 U.S.

® 133, 130, 75 S.Ct. 623, 625,

99 .. Ed. 942; Hurtado v.

California, 110 wees O26,

536-37, 4 S.Ct. 111, 121, 28

L.—Ed.2d 232. Even if the

procedures themselves are

legitimate, it is impermis-

sible to employ those proce-

dures vindictively or mali-~—

ciously so as to deny a

particular individual due

process. See epee

v.Perry; 417 U.S. ae 28,

94 %.Ut. 2098, 3i01- 2102, 40

L.Ed.2d 628; North Carolina

v. Pearce, 395 U.S. Jil,

7123-26, 89 S.Ct. 2972,

2079-81, 23 L.Ed.2d. 656.

Id. at 517.

The court in Ciechon went on to

explain that the disciplinary proceed-

ings also were an unconstitutional

denial of the equal protection of the

law:

-2)]-

The disciplinary pro-

ceedings against Ciechon also

constituted a denial of equal

protection or the law because

they represented an arbi-

trary, irrational decision to

discriminate among the two

paramedics, Ciechon and Ritt,

who were equally responsible

for the welfare of the

patient on all ambulance

runs. Thus two persons

similarly situated, in that

they experienced the same set

of circumstances and were

equally responsible for

patient assessment and treat-

ment, were treated absolutely

differently. Ciechon was

charged with failure to

perform her duties and dis-

charged, Ritt was never

charged or disciplined in any

fashion. Since the discrim-

ination was intentional, the

equal protection clause was

violated. United States v.

Falk, 479 F.2d 616, 619 (7th

Cir. 1973) (en banc).

Equal protection demands

at a minimum that a munici-

pality must apply laws in a

rational and nonarbitrary

way. Yick Wo v. Hopkins, 118

U.S. 356, 373-74 6 Tr

1064, 1073-73, 30 L.Ed. 220;

French v. Heyne, 54/7 F.2d

«$2.

994, 997 (7th Cir. 1976).

This requires a showing that

its application of the law

“rationally furthers some

legitimate, articulated state

purpose and therefore does

not constitute invidious

discrimination." San Antonio

Independent School District

¥. moeerieuez, 4171 U.S. 4, 7,

$3 3.tu. tere, 1206, 36

L.Ed.2d 16; see also Weber v.

Aetna Casualty & Surety Co.,

Se Wide COS, C72, BE 3s GE.

1406, 1405, 31 1.€¢@. Zé 768;

Dandrige v. Williams, 397

i rT, SOs, Fo 2.Ct. 1183,

ian, 20 0.86.26 951. This

does not mean that error or

mistake in the application of

the law gives rise to an

equal protection claim.

Snowden v. Hughes, 321] U.S.

1, 8, 64 S.Ct. 337, 401, 88

L.td. 497. Rather, it

protects against intentional

invidious discrimination by

the state against persons

similarly situated. Id.

We have consistently

applied these principles

which are at the heart of the

equal protection guarantee to

protect against arbitrary

government conduct. Thus in

Olshock v. Village of Skokie,

B47 F.2d 1254 (7th Cir.

at.

1976), this Court found equal

protection violated when

policemen who engaged in a

protest action were differen-

tially disciplined. The

apparent basis of distinction

was that those who were

represented in a personnel

hearing by counsel were

discharged, while those who

were not represented were

only suspended. Similarly,

in two prisoner cases, one

involving a work release

program and one involving an

inter-prison transfer, we

found that an equal protec-

tion claim was stated where

inmates asserted deliberate

and arbitrary denial of

hearing procedures guaranteed

to all inmates. Stringer v.

Rowe, 616 F.2d 993 Cth Cir.

1980); Dursa v. Rose, 579

F.2d 1365 (7th Cir. 1978),

certiorari denied, 439 U.S.

1323, BF Sibba 1622, Bo

L.Ed.2d 82; see also Ziegler

v. Jackson, 638 F.2d 776, 779

(5th Cir. 1981); Cosney v.

Sonora Independent School

District, 603 F.2d 522, 32/7

(stn ur. t79}.

Analysis of the facts

presented in this case yields

clear and convincing evidence

of invidious discrimination.

24.

Paramedics Ciechon and Ritt

were equally responsible for

patient assessment and treat-

ment on all ambulance runs,

including that to the Ciebien

household. Yet the City

chose to charge and disci-

pline only Ciechon. This

choice was not made out of

error, neglect, or mistake.

Rather, it was an intentional

act with no rational basis

for such discrimination.

Ritt either deserved to be

discharged as Ciechon was, or

Ciechon, like Ritt, deserved

to be completely vindicated

of all charges. There was no

possible justification for

treating them differently.

Id. at 522-523.

ce

Another major public employment

case involving disparate treatment is

Ziegler v. Jackson, 638 F.2d 776 (5th

Cir. 1981). There, the plaintiff was a

patrolman. He had been convicted of the

misdemeanor of presenting a firearm and

criminal provocation. He was terminated

under the standards of the character

-25-

requirement for police officers which

required that one “has never been con-

victed of a felony or misdemeanor

involving either force, violence or

moral turpitude." Id. at 777. The

plaintiff argued that the character

requirement had been applied to him

unconstitutionally because other police

officers who had been convicted were not

terminated. - The court of appeals agreed:

The Commission has

failed to offer a rational

justification for the differ-

ential treatment accorded to

Zeigler, who was discharged,

and the three police officers

who were retained. Since the

other officers equally sub-

ject to the character

requirement were not denied

employment because of their

convictions, the Commission's

termination of Zeigler vio-

lated his right to equal

protection of the law. See

Gosney v. Sonora Independent

School District, 603 F.2d

Sie, set (aun GIF. F979); cf.

) e

Louis v. Supreme ean of

Nevada, 490 F.Sup 1174,

TTS3 (D. Nev. 1980)( “Where

waivers of a rule are not

granted with consistency and

no explanation is given for

the disparity of treatment, a

finding of denial of equal

protection may be appro-

priate. ")

a eh

We stress that nothing

in this opinion prevents the

Commission from promulgating

written guidelines defining

crimes involving force or

violence or delineating

grounds for waivers to the

character requirement. The

Commission simply may not

interpret the minimum stan-

. dards of the Standards and

Training Act in a discrimin-

atory manner. As there are

no material facts in dispute,

we hold that Ziegler is

entitled to judgment as a

matter of law. United States

Steel Corporation v. Darby,

516 F.2d 7 (5th Cir.

1975). Accordingly, we

REVERSE and REMAND to the

district court for proceed-

ings consistent with this

opinion,

Id. at 779-80.

=27-

Another pertinent case is

Brandon v. District of Columbia Bd. of

Parole, 734 F.2d 56 (DC Cir.1984).

There, the Court of Appeals for the

District of Columbia reversed and re-

manded the dismissal of a complaint

alleging disparate treatment in parole

proceedings. The plaintiff, a prisoner

twice convicted of violent crimes,

alleged that he was being required to

serve longer, without parole, than other

prisoners. The court of appeals

reasoned:

A prisoner need not always

allege the presence of a

Suspect classification or the

infringement of a fundamental

right in order to state a

claim under the equal protec-

tion component of the Fifth

Amendment. Even in the

absence of a fundamental

right or a suspect classifi-

cation, equal protection

requires that a classifica-

7,

tion between similarly

situated individuals bear

some rational relationship to

a legitimate state purpose.

Schweiker v. Wilson, 450 U.S.

fet, coe, Ot S.Ct. ers.

1080, 67 L.Ed.2d 186 (1981).

2 =

The situation thus described

is much the same as that in

Durso v. Rowe, 579 F.2d 1365

(7th Cir. 1978). There a

prisoner alleged that prison

officials had violated equal

protection by revoking his

work-release status without

affording him the same kind

of hearing allegedly given to

other participants in the

program. In reversing the

district court's dismissal

for failure to state a claim,

the Seventh Circuit first

noted that a §1983 complaint,

as is Brandon's complaint,

need not identify with

particularized facts the

class of which he is

allegedly a part; instead

that task is to be left to

discovery or to resolution on

a Rule 12(e) motion for a

more definite statement. The

Seventh Circuit then went on

to hold: "The defendants may

be able to establish the

o 8B.

rationality of treating

plaintiff differently. But a

court ought not dismiss an

equal protection claim on the

basis of reasons unrevealed

to the court. The state must

come forward and identify the

legitimate state interest

being furthered." Id. at

1372 (citations omitted).

Accord Ciecon v. City of

Chicago, 686, F.2d 5ll1,

- (7th Cir. 1982)

(employee discharge) ;

Williams v. Taylor, 677 F.2d

tata 516-17 (5th Joe 1982)

disenfranchisement); Ziegler

v. Jackson, 638 F.2d 776 es th

Cir. T98T) (discharge of

police officer); Stringer v.

Rowe, 616 F.2d jo3- 357-58

(7th Cir. 1980) (interprison

transfer); Jones v. Lane, 568

F.Supp. 1113, 1116 (N.D.111.

1983) (placement in prison

work release program).

Brandon's equal protection

claim is thus potentially

meritorious, and his

complaint sufficiently

apprised the defendants of

this claim that they should

have been required to prepare

an answer or otherwise plead,

see Conley v. Gibson, 355

i Pe te 8 S. 00s. Oa 2

L.Ed.2d 80 (1957); it was

error to have dismissed the

Te

complaint sua sponte and

thereby to cut short the

normal course of litigation..

734 F.2d at 60-61. [Emphasis added. ]

In the present case, the

Federal Circuit laconically decided,

"Unevenness in the application of a

penalty is not a ground for invalidating

it." This ruling is completely at odds

with other circuits. See e.g., Ciechon,

supra (7th Cir.); Ziegler, supra (5th

Cir.); Brandon (DC Cir.). Because of

the Federal Circuit's exclusive juris-

diction over appeals by federal

employees from the MSPB, this ruling

literally makes federal employees

second-class citizens, who are not

entitled to the same constitutional

safeguards as public employees at the

State and local levels of governments.

This rule undermines merit system

-3]-

principles. It is broad enough to

protect cronyism, favoritism, wil ful-

ness, and caprice in disciplinary

proceedings for federal employees. By

extension, it would appear to insulate

any other unfair action by the federal

employer not strictly forbidden by

express statutory, regulatory, or

contractual language.

In these circumstances, a word

is in order about the Federal Circuit's

source of this rule. The source is Butz

v. Glover Livestock Commission Co., 411

U.5. $82, SS S.C. FOSS, 96 1.88. 182

(1978). Judge Friedman, while sitting

on the court of claims, applied Glover

Livestock to an employment case in his

opinion in Jones v. United States, 617

F.2d 233, 238 (Ct.Ci. 1980) and then

a

applied Jones and Glover Livestock in

Villela v. Department of the Air Force,

727 F.2d 1574, 1877 (Fed. Cir. 1984)

(Nies, J. dissenting).

Butz v. Glover Livestock is not

an employment case. It has nothing to

do with the classified federal service.

It is instead a case involving the 20

day suspension of a stockyard operator

for incorrect weighing and the entry of

false weights in violation of the

Packers and Stockyard Act, 1921, 42

Stat. 159, 7 U.S.C. §§ 208(a) and

213(a). The company argued that the

suspension was improper because other

companies in other cases had not always

been suspended. The Supreme Court

rejected this argument. After explain-

ing the congressional purpose of

5 =

deterence in assessing suspensions under

the Packers and Stockyard Act, the Court

wrote: "The employment of a sanction

within the authority of an administra-

tive agency is thus not rendered invalid

in a particular case because it is more

severe than sanctions imposed in other

cases" [Citations omitted.] [Emphasis

added.}] 411 U.S. at 187, 93 S.Ct. at

1459. The Court went on to question

whether in fact there had been any

disparate treatment:

Moreover, the Court of

Appeals may have been in

error in acting on the

premise that the Secretary's

practice was to impose

suspensions only in cases of

"intentional and flagrant

conduct." The secretary's

practice, rather, apparently

is to employ that sanction as

in his judgment best serves

to deter violations and

achieve the objectives of

that statute. Congress

plainly intended in its broad

«tiie

grant to give the Secretary

that breadth of discretion.

Therefore, mere unevenness in

the application of the

sanction does not render its

application in a particular

case “unwarranted in law."

411 U.S. at 187-188, 93 S.Ct. at 1459.

Here, unlike Butz, disparate

punishment is involved. Here, unlike

Butz, the principles of fairness

embodied the Civil Service Reform Act of

1978 are involved, and not the

principles of deterence of the Packers

and Stockyards Act. Here, unlike Butz,

the same case is involved, i.e., the

PATCO strike of 1981. The Butz reason-

ing is inapposite; the Butz facts are

wholly distinguishable; the Butz statute

is different in kind, degree, and

purpose from the Civil Service Reform

Act. For Butz to become the lynch pin

of disparate treatment analysis for

public employees, as the Federal Circuit

(and its predecessor the Court of

Claims) has elected to make it, is a

startling misuse of stare decisis.

2. THE DECISION BELOW RAISES

SIGNIFICANT AND RECURRING

PROBLEMS CONCERNING

DISCOVERY OF DISPARATE

TREATMENT IN PROCEEDINGS

OF FEDERAL EMPLOYEES

BEFORE THE MERIT SYSTEMS

PROTECTION BOARD.

The MSPB has the authority to

direct discovery in MSPB proceedings. 5

C.F.R. §1201.71 et seq. The MSPB makes

a reversible error when its refusal of

discovery would so prejudice a party as

to deny him due process. In Bario v.

Dept. of Justice, 9 M.S.P.R. 170 (1981),

the MSPB affirmed the sanction of

reversal of a discharge because the

ie

discharged employee had been denied

discovery in his MSPB proceeding. The

MSPB explained:

Several judicial

decisions have strongly

intimated that the former

Civil Service Commission had

the authority to order the

production of documents by an

agency in connection with an

employee appeal. In Barnes

v. Chatterton, 515 F.2d 916,

920 (3rd Cir. 1975), the

court of appeals found that

the "failure of the Examiner

vigilantly to safeguard

[appellant] Barnes'

procedural rights and to

secure for him documents and

data necessary for his

defense or for an effective

cross-examination of

witnesses transforms such

rights into mere illusory

guarantees." In Higgins v.

Kelly, 475 F.2d 789, (3rd

Cir. 1978), the same court of

appeals held that the

agency's refusal to honor the

appellant's request for

production of documents

denied him his procedural

rights, and ordered that the

appeal be remanded to the

Commission for further

proceedings.

a)

The D.C. Circuit Court

of Appeals reinforced the

view that the Commission had

the authority to order

production of documents in

McClelland v. Andrus, 606

F.2d 1278 (1979). The

Commission's hearing examiner

had denied the appellant's

mid-hearing request that the

agency produce a copy of an

investigative report, finding

that he had no power to

subpoena it and that it need

not be produced anyhow

because it had not been

relied on in the adverse

action against the appel-

lant. The court of appeals

disagreed. It found that the

Commission was "bound to

ensure that its procedures

meet due process require-

ments," and that "discovery

must be granted if in the

particular situation a

refusal to do so would so

prejudice a party as to deny

him due process." Id. at

1285-86. The court concluded

with an order that the

employing agency turn the

report over to the Commis-

sion. Id. at 1290.

In keeping with these

judicial decisions, we con-

clude that under the perti-

nent statutory, regulatory,

se

and FPM provisions,- the

Commission did have the

authority to order the

production of documents and

other evidence whenever a

refusal to do so would so

prejudice the appellant as to

deny him or her due process

of the law. In this case,

the administrative law judge

ordered the production of

numerous documents on the

basis of his finding that

partial production did not

meet due process require-

ments. We find, therefore,

that the judge's order was

consistent with the authority

of the Commission which was

devolved upon the Board and,

by delegation, to the admin-

istrative law judge.

The remaining issue for

resolution, then, is the

propriety of the sanction

imposed on the agency for

failure to comply with the

discover order. The

authority to issue a

discovery order would, of

course, have little meaning

without the concomitant

authority to impose sanctions

for failure to comply. See

Feds Ri Ct¥. hs SFib23. 5

C.F.R. §1201.43(a) (1981).

Where, as here, to proceed

with a hearing on appeal

«39.

without the requested

documents would preclude the

appellant from a fair oppor-

tunity to defend against the

charges, the only appropriate

sanction is the ultimate

coercive measure of reversal.

9 M.S.P.R. at 175-176.

The discovery to which a dis-

charged federal employee is entitled

includes evidence of disparate treat-

ment. E.g., Giesler v. Dept. of

Transer., 2 %.5.P.8. 277 (1960). There,

the MSPB, in affirming the discipline of

an air traffic controller, found that

the FAA had provided discovery of dis-

parate treatment:

With regard to appellant's

allegation that he was denied

the right to meaningful

discovery in connection with

the precept of like penalties

for like offenses, he stated

that he requested information

on penalties imposed through

an interrogatory and moved

for a continuance of the

hearing when the FAA did not

«RG

comply with his request.

Appellant concluded that he

was prejudiced by being

denied information that was

crucial to his case, and that

without discovery in this

area, he was denied the right

to prepare a challenge to the

action taken against him. In

this connection, we note that

at a prehearing conference

appellant was furnished

information concerning disci-

plinary action taken by the

agency against employees who

committed offenses similar to

those appellant was charged

with having committed. Thus,

appellant was not denied

information relating to the

right to challenge his

suspension on the basis of

disparate treatment. Accord-

ingly, there is no basis to

reverse the presiding offi-

cial's finding on this issue.

In the present case, the peti-

tioners sought evidence of the disparate

treatment of air traffic controllers who

were not discharged for the same con-

duct. The FAA refused to provide this

critical information, and the MSPB

wtt<

refused to order it. This refusal to

provide discovery was extremely preju-

dicial and precluded petitioners from

fully developing their due process and

equal protection defenses. These

defenses, as explained in part 1 of this

petition, are not frivolous and are

grounded in federal appellate precedent.

CONCLUSION

For these reasons, a writ of

certiorari should issue to review the

judgment and opinion of the Federal

Circuit.

Respectfully submitted:

4 /

j/ ? tf, /

7 A ae Wed J. 4 4 ha, pea

By Steven Z: Cohen

(P-29344)

6735 Telegraph Road

Birmingham, Michigan 48010

(33) 258-9400

Counsel for Petitioners

DATED: October 3, 1986

3532a

~42-

APPEND IX

APPENDIX 1:

Opinion and Judgment cof Court

of Appeals

APPENDIX 2:

Denial of Rehearing of Court

of Appeals

APPENDIX 3:

Interrogatories to the Agency

APPENDIX 4:

Order ALJ-3

APPENDIX 5:

Motion for Production of Documents

APPENDIX 6:

Order on Motion for Discovery and

Enjoining, Restraining and Staying

Destruction of Documents

APPENDIX 7:

Order on Requests for Witnesses

APPENDIX 8:

Appellants Regional Interrogatories

APPENDIX 9:

Regional Discovery Order

3542a

APPENDIX 1:

Opinion and Judgment of Court of Appeals

FOR THE FEDERAL CIRCUIT

STEVEN C. PARRO, et. al., )

DENNIS J. ACCAVALLO, et. al., )

CAROL A. JASINSKI, et. al., )

JEFFREY LYNN KLAWITER, et. al., )

WILLIAM P. ASKEW, et. al., )

@ JOHN L. HORTON,

ROBERT L. ALLISON, et. al., )

MICHAEL BARGER, et. al., )

BRUCE BUKAUSKI, et. al., )

JOSEPH D. BADAMI, et. al., )

JOHN R. BOESE, et. al., )

JOHN W. MAC DONALD, et. al., )

CHARLES W. FAHRENBRUCH, et. al. )

MICHAEL FENNESSY, et. al., )

DAVID J. FLAIG, et. al., )

MIKEL H. ALPERS, et. al., )

JEFFREY M. RAYKOVICH, et. al., )

MICHAEL A. MC NULTY, )

JERRY D. SLAVEN, et. al., )

DAVID D. HICE, et. al., )

THOMAS M. BROCKETT, et. al., )

HAROLD ANDERSON, et. al., )

BARTON D. ALEXANDER, et. al., )

RONALD K. DIXON, et. al., )

JOHN A. KENICK, et. al., )

RAYMOND G. NORDBLAD, et. al., )

| KENNETH H. BAKER, et. al., )

DAVID L. WHITAKER, et. al., )

JAMES R. BOUTON, et. al., )

| DENNIS E. KOVACS, et. al., )

| & GERALD M. BOPRIE, et. al., )

DALE B. CARTER, et. al., )

DOUGLAS J, KEMPSKI, et. al., )

GARY L. GREEN, )

RICHARD C. CROXFORD, et. al., )

. BARBARA E. BLANCHARD, et. al., )

)

)

)

)

)

Petitioners,

-VS-

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION,

)

Respondent. )

a ee a eS a SM ee ee a a ee ee SE ee ele

UNITED STATES COURT OF APPEALS

85-1465 *

85-1460

85-1467

85-1468

85-1469

85-1470

85-1471

85-1472

85-1473

85-1474

85-1518

85-1519

85-1520

85-1521

85-1522

85-1523

85-1524

85-1525

85-1526

65-1527

85-1528

85-1529

85-1530

85-1531

85-1552

85-1553

85-1554

85-1555

85-1556

85-1557

85-1558

85-1559

85-1560

85-1561

85-1562

85-1563

)

* All petitioners and their respective

MSPB Docket Numbers are listed on Appendix

A.

DECIDED: June 16, 1986

Before FRIEDMAN, Circuit Judge, BENNETT,

Senior Circuit Judge and BISSELL, Circuit

Judge.

BISSEL, Circuit Judge

DECISION

The decisions of the Merit Systems

Protection Board (Board), affirming the

removal by the Federal Aviation

Administration, Department of

Transportation (FAA), of William T. Kuhar,

Docket No: CHO75281F2127, and of Harry

Bartholomew, Docket No. CHO75281F0959 are

vacated and remanded. The appeal of Dean

C. Clark, Docket No. CHO75281F1221 is

transferred to the United States Claims

Court. The decisions of the Board

o2e

affirming the remaining two hundred- and

thirty petitioners’ removal by the FAA is

affirmed.

OPINION

Counsel's request for oral argument

was granted on the issues set fortn in

Contentions 11 and 12 below.

Notwithstanding the request of counsel for

oral argument on the remaining general

contentions and on the separate contentions

of certain petitioners, we have determined

on the basis of the request and the briefs

that oral argument will not be necessary

because- the dispositive issues have been

authoritatively decided, the facts and

legal argument are adequately presented in

the briefs and record, and the decisional

process would not be aided by oral

argument. Fed. R. App. P. 34(a).

Petitioners seek review of

thirty-five (35) final decisions of the

Board sustaining the decision of the

Federal Aviation Administration (FAA) to

remove them from their positions as air

traffic controllers based upon their

participation in a strike against the

United States and their absence from their

positions without leave.

Petitioners’ counsel filed a single

initial brief and a single supplemental

brief raising twelve contentions as to why

the removal actions against all the

petitioners--two hundred and thirty three

(233) in total--should be reversed or

remanded in addition, thirty-two (32)

petitioners** raise arguments specific to

the removal action. We shall first address

** The petitioners with specific appeals

are listed on Appendix B.

~~ s

the general contentions raised as to al]

petitioners and then the specific arguments

applicable to a single named petitioner.

General Contentions

Contention 1. The Board committed a

reversible error of law in failing to

decide an interlocutory appeal which had

been certified by the presiding official.

This contention is without merit. The

interlocutory appeal became moot once the

decisions of the presiding officials were

rendered and were appealed directly to this

court without seeking the Board's review of

the presiding officials’ decisions.

Contention 2. The presiding

officials erred in denying witnesses sought

by the petitioners on the safety issue.

Without addressing whether the petitioners

have the right to subpoena the President of

the United States and other high level

government officlas to discuss safety

issues, the petitioners have failed to

establish that the Board's failure to allow

such testimony was narmful error. The

record does not disclose what information

was believed to ve peculiarly within the

knowledge of the listed government

officials, nor does it disclose any attempt

to establish that the information was

unavilable from other sources. Most

importantly, since an allegation of

hazardous working conditions has been held

by the Board to be an affirmative defense

(see Haymore v. Department of the Navy,

SE075281F0098 (MSPB Jan. 12, 1983); Parker

v. Department of the Interior, 4 MSPB 184

(1980), for such testimony to be in any way

relevant, a petitioner would have had to

establish a prima facie case that the sole

reason for his absence was that dy

reporting for any duty he would have been

placed in reasonable fear of physical,

mental or emotional fiarm. No petitionr has

pointed to any evidence in the record which

would have supported a finding that he made

such a prima facie case.

Contention3. The Board erred in

denying the petitioners’ right to call or

examine witnesses in national discovery.

Since the presiding official is granted

wide discretion in the management of

discovery in an appeal to the Board (see 5

C.F.R. §1201.75), we find no reversible

error in the Board's orders of May 12,

1982, June 10, 1982, July 22, 1982 and

August 17, 1982 nor in its failure on

September 20, 1982 to order the acceptance

and recognition of petitioenrs as

participants in national discovery due to

their failure to give timely notice.

Pet. App. 160-167, 176-181, 183.

Contention 4. The presiding

officials erred in denying each

petitioenr's objection to consolidate of

appeals. Under 5 U.S.C. §7701(f) presiding

officials have the discretion to

consolidate appeals. Having shown to this

court no specific grounds upon which a

claim of prejudice as to a particuiar

petitioner could be bdased nor having set

forth a showing whereby the presiding

officials abused their discretion, we nold

that the presiding officals did not err in

denying the objections to the consolidation

of appeals. Dorrance v. Department of

Transportation, FAA, 735 F.2d 516 (Fed.

Cir. 1984).

re ee

Contention 5. The FAA erred in

reinstating air traffic controllers who

were on strike and who did not return to

work by the beginning of their deadline

shifts while refusing to reinstate any of

the petitioners. Petitioners allege that

they were denied equal protection of the

law because some air traffic controllers

were treated differently from the manner in

which petitioners were tre.ted. While

petitioners argue that similarly situated

individuals may not be accorded different

treatment by their employer, they do not

point to any evidence in the record to show

that any of them is similarly situated to

any individual who was treated differently

from the manner in which petitioenrs were

treated. In any event, “[La]n agency need

not exercise its discretion identically in

every case. 'A penalty that is within the

authority of the agency is not rendered

invalid in a particular case because it is

more severe than sanctions imposed in other

cases’. Villela v. Department of tne Air

Force, 7/27 F.2d 1574, 1577 (Fed. Cir. 1984)

(quoting Jones v. United States, 61/7 F.2d

233, 238 (Ct. Cl. 1980)). Uneveness in the

application of a penalty is not a ground

for invalidating it. Schapansky v.

Department of Transportation, FAA, 735 F.2d

477 (Fed. Cir. 1984).

Contention 6. The FAA erred in

failing to notify all air traffic

controllers of the deadline shift rule.

This contention was definitively rejected

by this court in Adams v. Department of

Transportation, FAA, 735 F.2d 488, 491

(Fed. Cir. 1984).

atti.

Contention 7. The presiding

officials and the Board should have been

disqualified from hearing the cases of

petitioners. Petitioners’ mere assertion

that they were treated unfairly by the

Board and its presiding officials does not

overcome the well settied legal principle

that such officials are presumed to have

acted in good faith. See McCarley v. Merit

Systems Protection Board, 757 F.2d 278,

280-81 (Fed. Cir. 1985).

Contention 8. Because of the FAA's

ex parte communications to the FAA's

deciding officials, petitioners’ discharges

were unconstitutional and the Board

decisions were erroneous as a matter of

law. Petitionrs' contention that the FAA

erred in supplying its supervisory

personnel with written guidance (General

ot%u

Notices) as to how to handle personnel

matters which arose out of the strike is

without merit. General Notices are a

matter of public record, the ones at issue

here gave general guidance to managers,

were not mandates and stressed that each

deciding official was to use his best

judgment in deciding whether to remove an

individual air traffic controller. E.g.,

GENOT 141, Pet. App. 102-05. Therefore,

the General Notices do not constitute

improper ex parte communications under this

court's holdings in Welcker v. United

States, 752 F.2d 1577, 1582-83 (Fed. Cir.

1985); Campbell v. Department of

Transportation, FAA, 735 F.2d 497, 500-501

(Fed. Cir. 1984); Sullivan v. Department of

the Navy, 720 F.2d 1266 (Fed. Cir. 1983).

-12-

Contention 9. The Board erred in

ignoring various factual determinations in

district courts concerning the duration of

the PATCO strike. In Adams v. Department

of Transportation, FAA, 735 F.2d 4838,

493-94 (Fed. Cir.), cert. denied, 105 S.Ct.

432 (1984), this court rejected this

contention, i.e., that the strike was ended

by statements in various court decisions.

Since petitioners have not shown that any

event--otner than certain court

opinions--ended the strike prior to the

dates on which they were charged with

striking, this contention is without merit.

Contention 10. The Board erred in

finding that the removal of petitioners

would "promote the efficiency of the

service" in view of the government's

contention that various appellants were

«ttn

Subject to a Federal District Court

affirmative injunction to return to work.

In Johnson v. Department of Transportation,

FAA, 735 F.2d 510, 515-56 (Fed. Cir. 1984),

this court held that removal of an air

traffic controller found to have

participated in a strike against tne United

States promotes the efficiency of the

service. Hence, this contention also is

without merit.

Contention 11. The FAA made a

prejudicial error in misleading petitioners

about their right to seek reinstatement

through arbitration. The error alleged in

this case is that the "notice of appeal

rights" (Notice) from the FAA's removal

decision mailed to each air traffic

controller was defective in that it

contained a warning that their right to

eo

file grievances under the applicable

collective bargaining agreement could be

affected by the decertification of PATCO.

The language at issue in the Notice is as

follows: |

If, on the other hand, you believe

this action ciolated article 69 and

you choose to file a grievance, you

must submit a written grievance to

Mr. Dale Leider, Chief, Air Traffic

Control Tower, Traverse City,

Michigan no later than 15 calendar

days after the effective date of the

removal.

In this connection you should know

that the FAA has filed an unfair

labor practice (ULP) charge against

PATCO for its role in the strike and

"7

is seeking to have the union

decertified. The case is now being

processed by the authority and a

determination that PATCO committed

= an ULP could impact on the

processing of grievances under the

PATCO/FAA agreement. If the union

is decertified, and the agreement

terminatd, this avenue of appeal may

not be availzable to you. If you

elect to file a grievance, it must

be filed in accordance with article

7, section 8 of the agreement and submitted

on FAA Form 3770.2. The grievance will be

processed beginning with step two of the

grievance procedure in the agreement.

Pet.App. 110-111, Appeal No. 1465 (emphasis

* added).

-16-

Petitioners argue that the Notice

was prejudically misleading in that it

discourgaged petitioners from resorting to

arbitration by incorrectly suggesting that

arbitration would become unavailable if

PATCO were decerti fied.

Petitioners’ contention is based

upon their assertions that arbitration, in

fact, would have been available to

petitioners notwithstanding the subsequent

decertification of PATCO, citing United

States Gypsum Co. v. United Steelworkers,

384 F.2d 38 (5th Cir.1967L)J]; Local 368

United Fed. of Eng. v. Western Electric

Co., 359 F. Supp. 65) (0.N.d. 1973).

The agency counters with the

argument that by statute only the union and

the agency may invoke arbitration, 5 U.S.C.

§7121(b)(3)(C), and that when a union nas

-|/]-

been found to have committed an unfair

labor practice, the Federal Labor Relations

Authority must “revoke the exclusive

recognition status of the labor

organization, which shall tnen immediately

cease to be legally entitled and obligated

to represent employees in the unit

5 U.S.C. §7120(f). Therefore, after the

decertification of PATCO, arbitration, in

fact, became unavailable under the terms of

the collective bargaining agreement and the

governing law.

The issue before us is not whether

arbitration in fact was available to

petitioners, but whether the Notice to

petitioners was prejudically misleading.

As the law on availability of arbitration

to an employee once the union has been

decertified is unsettled both in tne

s

private sector and in the public sector,

the Notice to petitioners is as accurate a

statement as to their appeal rignts as

could have been made under the

circumstances. There existed no error much

less a prejudicial one.

The Notice merely advised employees

that the decertification of PATCO “could

impact on the processing of grievances” and

that “this avenue of appeal may not be

available to you. GENOT 147, Pet. App.

111. These were not incorrect statements

and fulfill any possible duty of FAA to

provide petitioners sufficient informaiion

so that the “choice between two

alternatives"--here the appeal routes--is

“understood by the employee and that such a

decision be freely made." Covington v.

Department of Health and Human Services,

750 F.2d 937, 943 (Fed. Cir. 1984).

a0.

Further, the petitioners would have

to show "that a reasonable person would

have been misled by the agency's

statements" under "an objective test

= applicable to situations involving

misrepresentation . .. . Applying this

test, the court will neither inquire into

the subjective perceptions of the employee

. nor the subjective intentions of the

agency." Scharf v. Department of the Air

Force, 710 F.2d 1572, 1575 (Fed. Cir. 1983).

In this case it is clear that the

Statements contained in the Notice would

not have misled a reasonable man under an

objective test nor is there any evidence of

record that petitioners in good faith

relied on this advice to their detriment.

=20-

Contention 12. The personnel action

taken against petitioners is void ab initio

by reason of the FAA's misstatements about

arbitration. The petitioners argue that

the FAA committed error, the mere

commission of wnich under the holding of

Our predecessor court in Athos v. United

States, 597 F.2d 722 (Ct. Cl. 1979), is

harmful per se and mandates a reversal of

petitioners removals. Since we have found

no error, this contention necessarily fails.

Individual Petitioners

Each of the following petitioners

was allegedly improperly discharged by the

FAA based upon the individual record of his

appeal to the Board. Each petitioner asked

this court to order his reinstatement or to

remand his appeal to the Board for further

proceedings.

e

A. Appeal No. 85-1469

1. John C. Neece, Dockt No:

CHO75281F2480. The presiding official

found that tne petitioner participated in

the strike on August 3-5, 1981. "[TJhe

grace period granted by the President did

not relieve controllers of all obligations

to their employer during the grace

period." Anderson v. Department of

Transportation, FAA, 735 F.2d 537, 540

(Fed. Cir.), cert. denied, 105 S.Ct. 432

(1984). The presiding official addressed

petitioner's contention that he was denied

an opportunity to report to work by his

deadline snift by virtue of his receipt of

his letter of proposed removal prior to the

start of the shift. The presiding official

found petitioner's “argument that he would

have reported, absent receipt of the

o22-

notice, to be unpersuasive”" and that

petitioner had "failed to rebut the

agency's prima facie case of participating

in the strike." Pet. App. 27, Appeal No.

85-1469.

The decision of the presiding

official is supported by substantial

evidence. Since the petitioner failed

entirely to communicate with the agency,

the presiding official was entitled to draw

the adverse inference from his silence that

he never intended to report to work.

Campbell v. Department of Transportation,

FAA, 735 F.2d 497, 502 (Fed. Cir.), cert.

denied, 105 S.Ct. 247 (1984).

2. Robert J. Tibble, Docket No:

CHO75281F3121. Petitioner's contention

that his absence from work was due to an

illness rather than participation in the

-23-

strike is legally unavailing. "[TJo refute

the government's prima facie case of strike

participation . . . the employee must show

by objective evidence that he was incapable

of performing and duties during tne period

for which he was supposed to be at work

because of the medications he was taking."

Triola v. Department of Transportation,

FAA, 769 F.2d 760, 762 (Fed. Cir. 1985)

(emphasis added). Petitioner “admitted

that he probably could have been placed on

administrative duties." Pet. App. 37,

Appeal No. 85-1469. Therefore, there is

Substantial evidence in the record to

support the presiding official's finding

that petitioner nad “failed to rebut the

agency's prima facie case of his

participation in the strike." Pet. App.

38. Appeal No. 85-1469.

~24-

3. Larry E. Van Valkenburg, Docket

No. CHO75281F3172. Petitioner's contention

that his failure to report for nis deadline

snift was not due to strike participation,

but rather, that his failure to report for

duty was attributable to confusion

regarding the date the presidential

moratorium expired, is legally unavailing.

See Adams v. Department of Transportation,

FAA, 735 F.2d 488 (Fed. Cir.), cert.

denied, 105 S.Ct. 432 (1984); Dorrance v.

Department of Transportation, FAA, 735 F.2d

516 (Fed. Cir.), cert. denied, 105 S.Ct.

432 (1984); Anderson v. Department of

Transportation, FAA, 735 F.2d 537 (Fed.

Cir. ), cert. denied, 105 S.Ct. 432 (1984).

The presiding official's finding that the

petitioner had "failed to rebut the

agency's prima facie case" is supported by

~o26-

substantial evidence. Pet. App. 39, Appeal

No. 85-1469.

4, Harold F. Pierce, Jr., Docket

No. CHO75281F 2636. Petitioner contends

that the presiding official erred in not

ordering his reinstatement on the grounds

that the FAA committed narmful procedural

error in not timely providing him with an

appeal packet. We find no error in the

presiding official's denial of petitioner's

motion for dismissal on this ground as the

error, if any, was harmless. The record

Shows that the appeal packet was delivered

to petitioner's original representative.

Pet. App. 71, Appeal No. 85-1469.

Although petitioner's subsequent counsel

did not receive the appeal packet until

just prior to the nearing, counsel was

offered an extension which was refused.

ie.

Pet. App. 88, Appeal No. 85-1469. Although

some pages were missing from the packet,

the presiding official struck from the

record the missing pages, Pet. App. 8l, and

petitioner has not shown specifically how

he was harmed. Under this court's nolding

in Dorrance v. Vepartment of

Transportation, FAA, 735 F.2d 516, 520

(Fed. Cir.), cert. denied, 105 $.Ct. 432

(1984) "[t]lo be ‘harmful error'

necessitating our reversal of the Board,

the error must substantially impair an

employee's rights." On appeal to this

court, petitioner has demonstrated no such

harm to his rights.

5. Gary L. Wilder, Docket No.

CHO75281F3278. Petitioner's contention

that his failure to report for his deadline

Shift was not due to strike participation,

-2/]-

but rather, that his failure to report for

duty was attributable to confusion

regarding the date the presidential

moratorium expired is legally unavailing.

See Adams v. Department of Transportation,

FAA, 735 F.2d 488 (Fed. Cir.), cert.

denied, 105 S.Ct. 432 (1984); Dorrance v.

Department of Transporation, FAA, 735 F.2d

516 (Fed. Cir.), cert. denied, 105 S.Ct.

432 (1984); Anderson v. Department of

Transportation, FAA, 735 F.2d 537 (Fed.

Cir.), cert. denied, 105 S.Ct. 432 (1984).

Petitioner's further contention that the

conditions at the Oshkosh facility were so

dangerous that he feared of being placed in

physical, emotional or mental harm if he

reported to work also fails as an

affirmative defense to the government's

prima facie case of strike participation.

«bit.

"[T]o refute the government's prima facie

case of strike participation based upon tne

employee's ‘unauthorized absence during a

strike of general knowledge’ (Schapansky,

735 F.2d at 482), the employee must show by

objective evidence that he was incapable of

performing any duties during the period for

which he was supposed to be at work

Triola v. Department of Transportation, FAA

769 F.2d 760, 762 (Fed. Cir. 1985)

(emphasis added). The presiding official's

finding that the petitioner had "failed to

rebut the agency's prima facie case" of

participation in the strike is supported by

Substantial evidence. Pet. App. 41, Appeal

No. 85-1469.

6. Tod R. Lanham, Docket No.

CHO75281F2167. Petioner's contentions that

the conditions at the Oshkosh facility were

29.

$0 dangerous that he feared of being placed

in physical, emotional or mental harm if he

reported to work fails as an affirmative

defense to the goernment's prima facie case

of strike participation. "|{Tjo refute the

government's prima facie case of strike

participation based upon tne employee's

‘unauthorized absence during a strike of

general knowledge’ (Schapansky, 735 F.2d at

482), the employee must show by objective

evidence that he was incapable of

performing and duties during the period for

which he was supposed to be at work

Triola v. Department of Transportation,

FAA, 769 F.2d 760, 762 (Fed. Cir. 1985)

(emphasis added). The presiding official's

finding that the petitioner has "failed to

rebut the agency's prima facie case of

participation in the strike" is supported

by substantial evidence. Pet. App. 23,

Appeal No. 85-1469.

B. Appeal No. 1471

1. William T. Kuhar, Docket No.

CHO75281F2127. The issue in this appeal is

whether the presiding official erred as a

matter of law in sustaining petitioner's

removal for being absent without leave

(AWOL) for one day without taking into

account any mitigating factors.

In taking official notice that a

nationwide air traffic controller strike

took place Detween August 3rd and August 6,

1981, the presiding official stated:

The Board discussed at length in

Ketchem v. Department of

Transportation, Federal Aviation

Administration, MSPB Docket No.

DAO75281F0713 (May 28, 1982), the

seta

propriety of officially noticing the

commencement and duration of the

Professional Air Traffic Controllers

Organization (PATCO) strike. It

concluded by taking official notice

that an unlawful strike of air

traffic controllers occurred from

August 3, through August 6, 1981.

Id. at 9. The Board additionally

noted, Id. at 6, that the

continuance of the strike beyond

August 6, 1981 is Subject to

substantial dispute, and it is not

an appropriate fact to be officially

noticed as a matter of common

knowledge under 5 C.F.R Section

1201.67. The Board stated further

at 9 that the agency bears the

burden of proving by direct evidence

s SS

that a strike was in progess

subsequent to August 6, 1981 and

that the employee could have

returned to work on that date.

Pet. App. 2, Appeal No. 85-1471.

Petitioner was charged with striking

and being AWOL on August 5, 6 and 7, 1981.

At the hearing it was determined that

petitioner had uncancelled regular days off

on August 5 and 6, 1981. As to the

striking charge for August 7, 1981, the

presiding official founda:

The appellant argues that evidunce

has mot been produced to show that

the srike lasted beyond August 6,

1981. Such evidence has not been

produced by the agency. As

indicated above, I took official

notice that the natiodwide PATCO

~22e

strike took place between August 3

to August 6, 1981. Since evidence

of striking past August 6, 1981, has

not been furnished, I find the

striking charge not sustained.

As pertains to the AWOL charge, Il

find that Mr. Kuhar has not provided

any satisfactory explanation for his

not appearing fo work on August 7,

1981... . Therefore, I find tht

tne AWOL charge is Sustained Dy a

preponderance of the evidence.

As far as the penalty for the

sustained charge of AWOL, I will use

the same rationale as used above

where I found that even a first

offense of AWOL can be grounds for

ms )

removal where it disrupts the

efficiency of the service. See

Desiderio [v. Department of the

Navy, 4 MSP8 171 (1980)}j. In the

instant case, Mr. Cherry testified

that because the air traffic

controllers did not show up for

their regularly assigned shifts, he

was forced to curtail operation

hours at the Cuyahoga Tower because

of lack of controllers to do the

job. Thus, I conclude that renoval

for this single sustained offense is

appropriate.

Pet. App. 13, Appeal No. 1471.

In Douglas v. Veterans

Administraion, 5 M.S.P.R. 280 (1980), the

Board recognized a number of factors that

are relevant for consideration in

-35-

determining the appropriateness of a

penalty. "[LSlome of the pertinent factors

will weigh in the Lpetitioner's] favor

while others may not or may even constitute

aggravating circumstances." Douglas, 5

M.S.P.R. at 306. The key is a “responsible

balancing of the relevant factors" in each

case. Douglas, 5 M.S.P.R. at 306.

This court stated in VanFossen v.

Department of Housing and Urban

Development, 748 F.2d 1579, 1581 (Fed. Cir.

1984):

In determinging an appropriate

penalty the Board is not required to

articulate irrelevant factors, Nagel

v. Department of Health and Human

Services, 707 F.2d 1384, 1386 (Fed.

Cir. 1983), but failure to consider

a significant mitigating factor

«Sie

constitutes an abuse of discretion.

Cf. Miguel v. Department of the

Army, 727 F.2d 1081, 1083-84 (Fed.

Cir. 1984).

In this case, the presiding official

did not consider the relevant factors, but

mrely considered the first Douglas factor,

that is "“[tl]he nature and seriousness of

the offense, and its relation to the

employee's duties, position, and

responsibilities, including whether the

&

offense was intentional Douglas

M.S.P.R. at 305. Other factors were

relevant, such as the petitioner's past

work record, his past disciplinary record,

the effect of the offense upon his ability

to perform at a satisfactory level.

Douglas, 5 M.S.P.R. at 305. The penalty of

removal in this case is "an abuse of

s3s

discretion which failed responsibly to

balance all of the relevant factors."

Miguel, 727 F.2d at 1086. The final

decision of the Board sustaining

petitioner's removal is vacated and the

case is remanded. On remand the Board will

consider and balance the relevant Douglas

factors in determining an appropriate

penalty for the sustained charge of AWOL.

2. Harry Bartholomew, Docket No.

CHO75281F0959. The issue in this appeal is

whether the presiding official erred as a

matter of law in sustaining petitioner's

removal for being absent without leave

(AWOL) for one day without taking into

account any mitigating factors.

The final decision of the Board

sustaining petitioner's removal is

contained in a presiding official's opinion

«38s

which decided 110 separate appeals,

including the appeal of William T. Kuhar,

Docket No. CHO/75281F2127. The same issue

is presented in this case as was presented

in Mr. Kuhar's appeal to this court, found

at pages 15-18 of this opinion. Hence the

findings of the presiding offical in Mr.

Kuhar's decision are equally applicable to

the petitioner's appeal as is this court's

analysis of the issue.

Petitioner was charged with striking

and being AWOL on August 14, 1981. He was

on uncancelled annual leave between August

3 through 13, 1981. The presiding official

found:

As I have found the agency has

failed to prove that the strike

continued after August 6, I cannot

Sustain the strike charge lodged

against the appellant

-39-

As I found above, the normal

agency penalty under these

circumstances is insufficient as the

appellant was AWOL on a day when the

# agency's need for him was arguably

acute. Mr. Friar testified tnat the

strike caused the implementation of

revised shift schedules, including

putting superivsors and staff

specialists in control positions and

placing some "flow control

restrictions on airplanes." Nr.

Friar explaied that under these

restrictions, the number of

scheduled flights into and out of

the airport was reduced. Mr. Friar

stated that the terminal radar

@ service area was eliminated along

with elimination of the separation

-40-

service for the visual flight rule

concerning general aviation

aircraft. Mr. Friar stated that the

remaining 23 controllers and

Supervisors and staff specialists

began working a six-day work week.

Further, appellant's absence on the

day in question remains unexplained

to this day. It is clear that AWOL

may be grounds for removal as by its

very nature it disrupts the

efficiency of the service.

Desiderio |v. Department of the

Navy, 4 MSPB 171 (1980)j. In

conclude that removal for this

single sustained offense is

appropriate.

App. 11, Appeal No. 85-1471.

In this case, the presiding official

afta

did not consider the relevant factors, but

merely considered the first Douglas factor,

that is, "[t]he nature and seriousness of

tne offense, and its relation to the

employee's duties, position, and

responsibilities, including whether the

offense was intentional Douglas, 5

MS.P.R. at 305. Other factors were

relevant, such as the petitioner's past

work record, his past disciplinary record,

the effect of the offense upon his ability

to perform at a satisfactory level.

Douglas, 5 M.S.P.R. at 305. The penalty of

removal in this case is “an abuse of

discretion which failed responsibly to

blance all of the relevant factors," Miguel

v. Department of the Army, 727 F.2d 1086.

The final decision of the Board sustaining

petitioner's removal is facated and the

wt

case is remanded. On remand the Board will

consider and balance the relevant Douglas

factors in determining an appropriate

penalty.

3. Charles Baymiller, Docket No.

CHO75281F0968. Petitioner's contention

that as a matter of law his approved leave

for the week of August 3, 1981, could only

have been cancelled in the event of an

operational emergency and that the August 3

strike was not imminent in June of 1981

when his leave was cancelled fails. In

Letenyei v. Department of Transportation,

FAA, 735 F.2d 528, 531 (Fed. Cir. 1984)

this court adopted the Board's decision in

McPartland v. Department of Transportation,

No. DAO75281F1018 (MSPB Feb. 8, 1983),

which held that the collective bargaining

agreement “requires only the existence or

oe

reasonable likelihood of the existence of

an operational emergency before steps may

be taken to cancel approved leave

prospectively or actually to cancel such

leave during the duration of the

emergency.’ The court further stated that:

"Ctjhe threat of an imminent national

strike by the air traffic controllers fully

justified, indeed required, the agency to

cancel Letenyei's leave so that he would be

available to work during the strike."

Letenyei v. Department of Transportation,

FAA, 735 F.2d at 531. Petitioner's

assertion that the strike was not

"imminent" in June, when the first official

strike vote was taken, assumes that the

agency had twenty-twenty-hindsight, depends

upon too narrow a definition of the word

imminent and ignores the fact that, in

-44-

reality, a strixe by PATCO was reasonably

expected all summer long.

4. Ronald Young, Docket No.

CHO075281F 3336. Petitioner's contention

7 & that his failure to report for his deadline

| shift was not due to strike participation,

but rather that his failure to report for

duty was attributable to his reporting

instead for military duty is refuted by

Substantial evidence in the record.

Petitioner was charged with strike

participation and absence without leave on

August 3, 4 and 5, 1981. Petitioner's

deadline shift began at 11:00 p.m. on-

August 5, 1981. He reported for nis

military duty at 5:30 a.m. on August 6,

1981. Pet. App. 146, Appeal No. 85-1471.

| & The presiding official's finding that

petitioner "was not on any approved leave

wih

ee

and has not rebutted the agency's prima

facie case when he failed to report for

duty from August 3 through 5, 1981" is

Supported by substantial evidence.

5. Craig Ausse, Docket No.

CHO75281F9121. Petitioner's contention

that his absence from work was due to

illness in his family rather than

participation in the strike is refuted by

substantial evidence in the record. See

Anderson v. Department of Transportation,

FAA, 735 F.2d 537. (Fed. Cir.), cert.

denied, 105 S.Ct. 432 (1984).

6. Glenn H. Roderick, Docket No.

CHO75281F2775. Petitioner's contentions

that his absence from work was due to his

wife's illness and to his confusion over

his deadline shift is not only refuted by

substantial evidence in the record, (see

-46-

Anderson v. Department of Transportation,

FAA, 735 F.2a 537 (Fed. Cir.), cert.

denied, 105 S.Ct. 432 (1984), but is

legally unavailing. See Cecil v.

Department of Transportation, FAA, 767 F.2d

892 (Fed. Cir. 1985). Petitioner's further

contention tnat the presiding official

impermissibly transferred the burden of

proving strike participation from the

agency to petitioner to disprove strike

participation fails under Schapansky v

Department of Trnasportation, FAA, 735 *.2d

477 (Fed. Cir.), cert. denied, 105 S.Ct.

432 (1984). Although petitioner argues

that his absence for his deadline shift was

not “unexplained” in that he attempted to

call the facility prior to his shift to

request sick leave, the presiding official

found that the petitioner “did not even

\

contact the agency concerning a request for

sick leave." Pet. App. 16, Appeal No.

1471. The decision is supported by

Substantial evidence. See Griessenauer v.

Department of Energy, 754 F.2d 361 (Fed.

Cir. 1985) (determination of witness

credibility witnin discretion of presiding

official).

7. Richard Fagan, Dockete No.

CHO75281F1493. Petitioner's contention

that (1) his absence from work was not due

to strike participation, but rather, was

due to his being on approved annual leave

and (2) the presiding official

impermissibly shifted the burden of proving

strike participation from the agency to

petitioner to prove nonstrike

participation, is not only refuted by

Substantial evidence in the record, see

-48-

Griessenauer v. Department of Energy, 754

F.2d 361 (Fed. Cir. 1985) (determination of

witness credibility within discretion of

presiding official), but is also legally

unavailing. See Schapansky v. Department

of Transportation, FAA, 735 F.2d 477 (Fed.

Cir.), cert. denied, 105 S.Ct. 432 (1984).

8. Robert F. Lang, Docket No.

CHO75281F2162. Petitioner's contention

that his failure to report for work during

the first week of August 1981, was not due

to strike participation, but rather, that

ne was On authorized leave of absence is

refuted by substantial evidence in the

record. See Griessenauer v. Department of

Energy, 754 F2d 361 (Fed. Cir. 1985)

(determiniation of witness credibility

within discretion of-presiding official).

-49-

9. Gregory Rauch, Docket No.

CHO75281F 2698. Petitioner's contention

that his absence from work was due to an

illness rather than participation in the

strike is legally unavailing. “({TJjo refute

the government's prima facie case of strike

participation . . . the employee must show

by objective evidence that he was incapable

of performing any duties during the period

for which he was supposed to be at work

because of the medications he was taking."

Triola v. Department of Transportation,

FAA, 769 F.2d 760, 762 (Fed.Cir. 1985)

(emphasis added). The presiding official

found that “his physician indicated that he

was capable of performing his duties on

‘straight days'." Pet. App. 22, Appeal No.

85-1471. Therefore, there is substantial

evidence in the record to support the

«$6.

presiding official's finding that

petitioner nad "failed to rebut the

agency's prima facie showing that he was

acting in concert with others to withhold

services." Pet. App. 23, Appeal No. 85-1471.

10. Richard Herring, Docket No.

CHO75281F1829. Petitioner's contention

that his failure to report for his deadline

shift was not due to strike participation,

but rather, that his failure to report for

duty was attributable to coercion, is

legally unavailing. Jonnson v. Department

of Transportation, FAA, 735 F.2d 510 (Fed.

Cir. 1984). Petitioner raises three

contentions before this court which were

not raised before the Board. They are as

follows: (1) his deadline shift for

returning to duty was not August 5, 1981,

as charged, but August 8, 1981; (2) an

sits

impermissible ex parte communication took

place; and (3) a constructive suspension

occurred entitling him to pay for the

period beginning August 6, 1981 until the

& effective date of nis discharge. Claims or

arguments which could have been raised

before the presiding official, Dut were

not, may not be raised on appeal to this

court. Synan v. Merit Systems Protection

Board, 765 F.2d 1099, 1101 (Fed.Cir. 1985);

Lizut v. Department of the Army, 717 F.2d

1391, 1396 (Fed.Cir. 1983).

There is substantial evidence to

Support the presiding official's finding

that petitioner “has not rebutted the

agency's prima facie case of his

participation in the strike, and the

* charges against him are sustained by a

preponderance of the evidence." Pet. App.

24, Appeal No. 85-1471.

ate.

Se

11. James F. Thomas, Docket No.

CHO75281F 3371. Petitioner's contention

that his failure to report for his deadline

shift was not due to strike participation,

but rather, that his previously authorized

administrative leave for the period August

7 through August 11, 1981, was not

cancelled is refuted by substantial

evidence in the record. Hayes v.

Department of the Navy, 727 F.2d 1535, 1537

(Fed. Cir. 1984) (hearsay is admissible at

administrative hearings and may constitute

Substantial evidence).

12. Thomas J. Mahoney, Docket No.

CHO75281F2274. Petitioner's contention

that his failure to report for duty from

August 3 through August 6, 1981, was not

due to strike participation, but ratner,

that his previously approved annual leave

-53-

was not cancelled is refuted by substantial

evidence in the record. See Hayes, /2/

F.2d, 1535, 1537 (Fed.Cir. 1984) (hearsay

is admissible at administrative hearings

and may constitute subdstantial evidence).

C. Appeal No. 85-1474

1. Frank P. Zaremba, Docket No.

CHO75281F 3341. Petitioner's contention

that he cannot be removed for strike

participation because he had the last

deadline shift at his facility is legally

unavailing. See Crosley v. Department of

Transportation, FAA, 17 M.S.P.R. 486, 488

(1983)(a single employee continuing to

withhold his service can be on strike if

his action is part of a concerted effort

with others to win concessions from his

employer).

«84.

2. James R. Pauley, Docket No.

CHO75281F 2592. Petitioner's contention

that his failure to report for nis deadline

snift was not due to strike participation,

= but rather, that his faiure to report for

duty was attributable to confusion

concerning his employment status during the

presidential moratorium, is legally

unavailing. See Adams v. Department of

Transportation, FAA, 735 F.2d 488

(Fed.Cir.), cert. denied, 105 $.Ct. 432

(1984); Dorrance v. Department of

Transportation, FAA, 735 F.2d 516 (Fed.

Cir.), cert. denied, 105 S.Ct. 432 (1984);

Anderson v. Department of Transportation,

FAA, 735 F.2d 537 (Fed.Cir.), cert. denied,

105 $.Ct. 432 (1984). The presiding

& official's finding that the petitioner had

“not rebutted the prima facie case" is

-55-

Supported by substantial evidence. Pet.

App. 81, Appeal Nos. 85-1523, et. al.

a. wean ©, Clark, Decket Ne.

CHO75281F1221. Petitioner is not appealing

& his removal action, but, rather, requests

this ciurt to make an award to him of back

pay. He alleges that the record is

unrebutted that he worked on August l, 2

and 3 and had a regular day off on August

4, 1981, and that he was not paid for any

of these days. The presiding official made

no finding as to this.

Pay disputes are not matters within

the jurisdiction of the Board under 5

0.3.0. $7701 and this court under § U.S.C.

§7703 and 28 §U.S.C. §1295 lacks

jurisdiction to entertain petitioner's

EJ request by way of review of a Board

decision. Pursuant to 28 U.S.C. $1631, tne

«6s

matter is transferred to the United States

Claims Court for consideration under the

Tucker Act, 28 U.$.€. $3491.

4. Larry S. Gerovac, Cocket No.

CHO75281F1629. Petitioner contends that

under this court's nolding in Schapansky v.

Department of Transportation, FAA, 735 F.2d

477, 482 (Fed. Cir.), cert. denied, 105

S.Ct. 432 (1984), “little countering

evidence would be required where, for

example, the prima facie case was minimally

supported." He contends that since there

was no showing tnat petitioner withheld his

services in concern with anyone else, tne

findings of the presiding official that

"Li]t was his impression that crossing the

picket line might trigger violence" and

that eh “attempted to call the facility

several times but was unsuccessful,"

Pet.App. 79, Appeals Nos. 85-1523, et al.,

-5/]-

were sufficient to rebut the agency's

minimally supported prima facie case of

Strike participation. Petitioner alleges

that the worst that can be said of him is

that he made a good faith error in juagment

in unilaterally deciding not to attempt to

pierce the picket line and return to work.

Petitioner's argument fails. Once

the presiding official found that a prima

facie case of strike participation had ben

establsihed, the presiding official

properly applied the standard for coercion

approved by this court in Jonnson v.

Department of Transportation, FAA, 735 F.2d

510 (Fed.Cir. 1984). The presiding

official found that “a person of ordinary

firmness would have reported to work in

these circumstances." Pet. App. 79, No.

85-1523, et al. There is substantial

-58-

evidence in the record to support the

presiding official's finding that petitionr

had "failed to rebut the agency's prima

facie case." Pet.App. 80, Appeal Nos.

85-1523, €t a1.

D. Appeal No. 85-1518

James A. Klugiewicz, Docket No.

CHO75281F2078. Petitioner's contention

that his failure to report for his deadline

shift on August 6, 1981, was not due to

strike participation, but rather, that his

previously authorized annual leave for the

prriod August 6 through August 8, 1981, was

cancelled witnout his knowledge and tnat he

was il] with the flue on August 6, 1981, is

not only refuted by substantial evidence in

the reocrd, see Griessenauer v. Department

of Energy, 754 F.2d 361 (Fed.Cir. 1985)

(determination of witness credibility

«a6.

within discretion of presiding official),

but is also legally unavailing. See Triola

v. Department of Transportation, FAA, 769

F.2d 760, 762 (Fed.Cir. 1985).

@ E. Appeal No. 85-1519

Charles L. Reinke, Docket No.

NYO75281F1170. Petitioner contends that

the presiding official's decision contains

two important findings of fact which are

unsupported by substantial evidence as

follows: (1) “it is undisputed that ne

Satisfactorily performed the full range of

nis duties between July 20 and August 3"

and (2) that he was observed picketing

“during the week of August 3." Pet. App.

31, Appeal Nos. 85-1523, et al. Even if

these two findings of fact are disregarded,

4 there remains substantial evidence to

establish petitioner's strike participation

-60-

and his failure to rebut the government's

prima facie case.

Petitioner furtner contends that he

did not report for work on August 3 and

August 6 because his emotional condition at

the time disabled him from performing his

duties. The presiding official found that

"“[wjhen appellant did not report for duty

on August 3 he did not call the facility to

explain his situation or request sick leave

He offered no corroborative evidence

concerning his mental state or condition on

August 3 and did not claim to nave been

treated by a physician the week of August

3." Pet. App. 31, Appeal Nos. 85-1523, et

al. The presiding official's finding that

petitioner failed to establish his

disability, thus failing to rebut the

aency'’s prima facie case, is supported by

ait}

Substantial evidence. As this court held

in Triola v. Department of Transportation,

FAA, 769 F.2d 760, 762 (Fed. Cir. 1985)

(emphasis added), "the employee must show

by objective evidence that he was incapable

of performing any duties during the period

for which he was supposed to be at work

due to his disability.

F. Appeal No. 1522

1. Paul F. Marazita, Jr., Docket

No. CHO75281F2292. Petitioner's contention

that his faiulre to report for his deadline

Snift was not due to strike participation,

but rather, that his failure to report for

duty was attributable to his actual

confusion regarding his deadline shift

which confusion was justified and

aggravated by family problems is not only

refuted by substantial evidence in tne

-62-

record, see Griessenauer v. Department of

Energy, 754 F2d 361 (Fed.Cir.

1985) (determination of witness credibility

within discretion of presiding official),

but is also legally unavailing.

See) Anderson v. Department of

Transportation, FAA, 735 F.2qa 537 (Fed.

Cir), cert. denied, 105 S.Ct. 432 (1984).

2. Jopseph E. Forys, Docket No.

CHO75281F1568. Petitioner's contention

that he cannot be removed for strike

participation because he had the last

deadline shift at his facility is legally

unavailing. See Crosley v. Department of

Transportation, FAA 17 M.S.P.R. 486, 488

(1983) (a single employee continuing to

withhold his services can be on strike if

his action is part of a concerted effort

with others to win concessions from his

employer).

«a6§3<

G. Appeal No. 85-1523

James D. Smith, Docket No.

CHO75281F2968. Although petitioner's

contention that the agency failed to prove

that it nad properly cancelled his annual

leave which was scheduled to begin on the

day of his deadline shift is correct, this

contention is legally unavailing to mandate

a reversal of his removal action.

Petitioner does not question the presiding

official's finding that he participated in

the strike on August 3, 4 and 5, 1981.

Since petitioner did not explain tnese

absences and did not attempt to report for

duty at any time, or even testify at the

hearing before the presiding official, the

presiding official properly sustained the

strike participation charge for the first

three days of the strike. As this court

sti

held in Anderson v. Department of

Transportation, FAA, 735 F.2d 537 (Fed.

Cir.), cert... deated, 165 $.Ct. 432 (1984):

Contrary to petitioners’ argument,

the grace period granted by the

President did not relive controllers

of all obligations to their employer

during the grace period. fThus,

petitioners premise that the

controllers were fired only for

their +ailure to report for their

deadline shift, and not for their

conduct prior thereto, is false.

Id. at 540 (emphasis added).

H. Appeal No. 85-1525

Michael A. MeNulty, Docket No.

CHO75281F2364. Petitioner's contention

that his absence frm work was due to an

illness rather than participation in the

strike is legally unavailing. "[TJo refute

the government's prima facie case of strike

participation . .. the employee must show

by objective evidence that he was incapable

of performing any duties during the period

-§5-

of which he was supposed to be at work

because of the medications he was taking.”

Triola v. Department of Transportion, FAA,

769 F.2d 760, 762 (Fed. Cir. 1985)

(emphasis added). The Board's findings

that petitioner's "failure to notify tne

agency of his illness precluded his

assignment to other administrative duties"

and that petitioner's "admission of strike

participation, as well as the other

evidence of record" established that

petitionr's “absence from duty during the

period charged was by strike participation

and not by physical incapacity” are

Supported by substantial evidence. Pet.

App. 15, Appeal Nos. 85-1528 and 1525.

I. Appeal No. 85-1528

1. Thomas M. Brocket, Docket No.

CHO75281F1085. Petitioner's contention

-66-

that, bsed upon the facts found by the

presiding official, it cannot be concluded

that the petitioner withheld his services

in concert with others, is not only refuted

by substantial evidence in the record (see

Griessenauer v. Department of Energy, 7/54

F.2d 30] (Fed. Cir. 1985) (determination of

witness credibility within discretion of

presiding official), but is also legally

unavailing. See Schapansky v. Department

of Transportation, FAA, 735 F2d 477

(Fed.Cir.), cert. denied, 105 S.Ct. 432

(1984).

a Thomas F. Burkman, Docket No.

CHO75281F1137. Petitioner's contention

that, based upon the facts found by the

presiding official, it cannot be concluded

that the petitioner withheld his services

in concert with others, is not only refuted

~~ »

by substantial evidencein the record (see

Griessenauer v. Department of Energy, 754

F2d 361 (Fed.Cir. 1985) (determination of

witness credibility within discretion of

presiding official), but is also legally

unavailing. See Schapansky v. Department

of Transportation, FAA, 735 F.2d 477

(Fed.Cir.), cert. denied, 105 S.Ct. 432

(1984).

J. Appeal No. 85-1559

Brenda Schroer, Docket No.

CHO75281F2879. Petitioner's contenteion

that she cannot be removed for strike

participation because she had the last

deadline shift at her facility is legally

umavailing. See Crosley v. Department of

Transportation, FAA, 17 M.S.P.R. 486, 488

(1983) (a single employee continuing to

withhold his services can be on strike if

-68-

his action is part of a concerted effort

with others to win concessions from nis

employer).

K. Appeal No. 85-1590

Noah Taylor, Docket No.

CHO75281F3086. Petitioner's contenteion

that his failure to report for his deadline

Shift was not due to strike participation,

but rather, that the cancellation of his

annual leave by a temporary supervisor was

a nullity resulting in petitioner being

removed for being absent from work during

an uncancelled leave of absence, is refuted

by substantial evidence in the record. See

Griessenauer v. Department of Energy, 754

F.2d 361 (Fed. Cir. 1985) (determination of

witness credibility within discretion of

presiding official).

-69-

CONCLUSION

With the exception of the decisions

of the presiding official in the appeals of

William T. Kuhar, Docket No. CHO/75281F212/7

and Harry Bartholomew, Docket No.

CHO75281F0959 which we vacate and remand

and tne appeal of Dean C. Clark, Docket No.

CHO75281F1221 which we transfer to the

United States Claims Court, the remaining

two hundred and thirty (230) decisions we

affirm on the basis of the presiding

officials' opinions because the Board's

final decisions were not arbitrary,

capricious, an abuse of discretion, or

otherwise not in accordance with law, were

not obtained without procedures required Dy

law, rule or regulation having been

followed, and were supported by substantial

evidence. 5 U.S.C. §7703(c) (1982); see

att.

Hayes v. Department of the Navy, 727 F.2d

1535, 1537 (Feds Cir. 1984).

We deny respondent's request in

certain of these appeals that sanctions be

imposed against petitioners and their

counsel for a frivolous appeal. we are

Satisfied that, while such appeals are

without merit, a good-faith effort was made

to distinguish such cases from the

precedents against them.

3533a

oe

APPENDIX 2:

Denial of Rehearing of Court of Appeals

CORRECTED

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

STEVEN C. PARRO,

cy. Mea Appeal Nos.

85-1465, 85-1406,

a 85-1467, 85-1464,

Petitioners, 85-1469, 85-1470,

85-1471, 85-1472,

v. 85-1473, 85-1474,

85-1518, 85-1519,

DEPARTMENT OF TRANSPOR- 85-1520, 85-1521,

TATION, FEDERAL 85-1522, 86-1523,

AVIATION ADMINISTRATION 85-1524, 85-1525,

| 85-1526, 85-1527,

| 85-1528, 85-1529,

85-1530, 85-1531,

85-1552, 85-1553,

85-1554, 85-1555,

85-1556, 85-1557,

85-1558, 85-1559,

85-1560, 85-1562,

85-1563, 85-1561

Before FRIEDMAN, Circuit Judge, BENNETT,

Senior Circuit Judge, and BISSELL, Circuit

Judge.

ORDER

A petition for rehearing having been

= filed in this case by petitioenrs,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing

be, and the same hereby is, denied.

FOR THE COURT

Francis X. Gindhart,

Clerk

Dated: 7/11/86

cc: Mr. Steven Z. Conen

Ms. Sandra P. Spooner, DOJ

oo APPENDIX 3:

Interrogatories to the Agency

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO FILED OFFICE

In the Matter of:

JOSEPH D. BADAMI

Cahicago ARTCC

Appellant,

VS

DEPARTMENT OF TRANSPORATION,

FEDERAL AVIATION ADMINISTRAITON,

Agency

/

INTERROGATORIES TO THE AGENCY

NOW COMES the above-named Appellant, by

and through his attorneys, COOPER & COHEN

by STEVEN Z. COHEN, Pursuant to 5 U.S. Code

1205(b)(2)(2)(B) and 5 C.P.R. 1201.72,

requests the Agency to answer the following

Interrogatories, separately and in writing,

under oath, within twenty (20) days of

receipt thereof. (All Interrogatories are

continuing in nature).

1. State the name, job position, grade

and rank of the agency official answering

these interrogatories on behalf of tne

agency.

cs List tne names, addresses, job

classification and telepnone numbers of all

personnel specialists and/or functionaries

who took part in the processing of the

adverse action against the Appellant,

Further, state the specific function

performed by each individual listed.

Je Identify the organization chain of

command (by name, address, pnone number and

position) involved in the processing of the

adverse action against the Appellant.

4. a. Who made the decision to take

adverse personnel action against the

Appellant?

b. What other individuals, if

any, had input into said decision?

=<

as What various adverse actions were

available to be taken against the Appellant

based upon the allegations made? (State

each and every element of proof necessary

to ascertain each and every adverse

personnel action that may have been taken

against the Appellant).

6. Please supply statements made by

any party or agent of a party to this

action and any witness or potential witness

in this action which concerns this case.

Ps Was the decision to take adverse

action against this Appellant made before

or after the statements made by the

President of the United States with regard

to the deadline for reporting for work?

8. What equipment has been considered

by your Agency which would assit the Air

Traffic Controllers in identifying air

traffic or distances between vehicles or

location of vehicles, or potenteial

collision circumstances, or improving

identification of vehicles?

3. List the names, addresses, job

classification and telephone numbers of all

personnel specialists and/or functionaries

who took part in the processing of the

adverse action against the Appellant.

Further, state the specific function

performed by each individual listed.

10. Did the Agency send a directive to

the Appellant officially cancelling annual

leave?

11. Has the Agency advised the United

States Attorney not to take criminal

action? If so, when, by whom, and what is

the substance of that request?

12. @. Sow many air Traffic

Controllers in Appellant's region retired

after full service?

db. How many Air Traffic

Controllers stopped working on medical

disability?

c. What were the medical

conditions and diagnoses for each?

d. What were the names of each?

13. Who made decisions regarding

extensions of time and requests for

documents raised at the oral presentation?

14. Who is the safety director of the

Agency at Appellant's installation? State

his/her name, address, telephone number,

and job classification.

15. Was the decision official informed

of the results of each oral presentation by

the hearing official? If so, state the

time, date and length of such meetings and

provide a brief synopsis of the statements

or comments made with regard to Appellant's

claim.

16. a. Where is the personnel file of

the Appellant kept?

b. Who has access to the

personnel file of the Appellant?

c. If the personnel file of the

Appellant is kept in Chicago, please

indicate the method by which such files are

Signed out, who has the authority to sign

them out, who has tne authority to receive

the files and what notice is provided to

the individual that his file is being

viewed.

d. Are the use and control of

personnel files governed by any provisions

of the negotisted agreement between the

Agency and the Professional Air Traffic

Controller Organization in force at the

time of the alleged job action. If so,

State each such provision.

e. Will tne Agency use any parts

of the Appellant's personnel file as

evidence before tne Merit Systems

Protection Board? If so, what parts or

documents from that file will be introduced

into evidence?

17. What training did these individual

hearing officers nave in preparation for

their role as a hearing officer? If any

training was provided these individuals by

the Agency, please state by whom given and

further state with specificity the nature

of such instruction and/or training.

18. a. Were any favorable decisions

(i.e. dismissals of prposed adverse action

against an Air Traffic Controller) granted

by an Oral Presentation Hearing Officer in

the Chicago region of the Agency in August

or September, 1921?

dD. If so, for each, state who the

hearing officer was, the date of tne

hearing, and the reasons for dismissal of

the charges.

19. Identify with specificity each and

every regulation which directs and/or

compels an oral hearing prior to taking an

adverse action.

20. State the method and procedures

used to pick the hearing officers for any

oral presentations conducted pursuant to an

adverse personnel action.

21. What are the Agnecy's rules and

regulations concerning notification of

absences? Please provide a copy of such

rules and/or regulations. If such rules

and/or regulations are different as between

different facilties of the Agency, please

provide a copy of such rules and/or

regulations for each facility of the Agency.

22. how have regulations governing the

job of Air Traffic Controllers changed

before and after the processing of said

adverse action against the Appellant?

23. How are the individuals who served

as hearing officers in such oral

presentations paid?

24. Identify the inaividual and/or

individuals responsible for choosing the

hearing officer for oral hearings in this

matter.

25. Please state each and every action

or activity of each and every phase of the

Federal Aviation Administration's

contingency plan for potential strikes and

other job action by Air Traffic Controllers.

26. Please state when, where and Dy

whom each action or activity referred to in

Question 25 was performed, and when, and dy

whom each was ordered.

27. Were the haring officers employed

in te Appellant's case regular employees of

the Agency? If so, were these individuals

detailed from other positions? If so, what

positions were they detailed from and for

what period of time was the detail for?

28. State the name, address and

telephone number of each witness you intend

to call and the substance of that witness'

testimony.

29. List all evidence, including

records and testimony, by which the Agency

will support its allegation against the

Appellant.

30. Has the Agency considered

requesting the United State Attorney to

take criminal action against the Appellant

or any Air Traffic Controller? If so, wnat

action was considered, is propised, has

been or will be taken?

31. Please identify with specificity

each and every writing in the Agency's

files regarding Air Traffic Controller's

job safety, health and work conditions.

32. Were any requests made to change

the work conditions for Air Traffic

Controllers within the last five (5)

years? If so, state the nature of each

request, Dy whom made and when made.

33. List each exnibit to be produced

at trial and attach copies to your answers

to these interrogatories.

34. State with specificity each ana

ati

every program to control stress for the Air

Traffic Controllers implemented or

Suggested or considered or recommended by

the Agency.

Lie Identify and attach all documents,

not otherwise supplied, including

regulations, by which the Agency will

attempt to support its adverse action

against the Appellant.

36. a. Were remedies less than

removal considered by the Agency? If so,

what other remedies were considered?

b. Why were those remedies

rejected?

37. Where any dismissals of the

Charges prepared at the same time as the

Notices of Removal?

38. Has the Agency ever taken an

adverse perseonnel action as against any

me

Air Traffic Controller for absence without

leave in the last fifteen (15) years? If

SO, please provide the Appellant with a

complete list of all cases wherein any such

2 adverse action was either proposed or

taken; a complete record of the action

proposed and/or taken; and the procedures

used in taking that action. (Of course,

any such records should be sanitized as to

name ).

39. How do you define the terms

“participates” and “strike” for the purpose

of use by the Agency in administrative and

personnel matters?

40. Has the Agency ever taken an

adverse personnel action as against any Air

Traffic Controller for participation in a

& strike in the last fifteen (15) years? If

SO, please provide Appellant with a

24%

complete list of all cases wherein any such

adverse action was either proposed or

taken; a complete record of the action

proposed and/or taken; and the procedures

used in taking that action. (Of course,

any such records should be sanitized as to

name).

41. Were the hearing officers advised

by other Agency personnel as to the conduct

of their duties? If so, please state by

whom advised, when such advice was given

and what the substance of such advice was.

42. When did the President of the

United States announce his decision to fire

the Air Traffic Controllers? Was the

Statement made after consultation with an

individual? If so, state the name, address

and telephone number of each such

individual and the nature of that

consultation.

a.’

43. Was the immediate supervisor of

the Appellant consulted before adverse

action was proposed? If so, state the

date, time and place where the supervisor

was consulted. State by whom the

Supervisor was consulted. State the name,

address, telepnone number and job

classification of the supervisor of the

Appellant.

44. Was the Agency ever informed that

operation of the system in the fashion

previous to August 3, 1981] was in any way

detrimental to the mental or physical

health of the Air Traffic Controllers? If

SO, State the name, address and telephone

number of each such source or informant.

Also, state the substance of each such

information.

x =

45. Did the Agency send a directive

the Appellant officially cancelling days

off?

40. If Appellant had worked on his day

® off would such scheduling have violated

Agency regulations regarding break time

between shifts?

47. Please provide any notes,

memoranda, and/or directives concerning the

negotiations between the Agency and any

labor organizations representing Air

Traffic Controllers beginning with January,

1981 and continuing until the present.

48. Identify the individuals within

the Agency who served as superiors to the

hearing officers.

49. Identify the organizational chain

*” of command (by name, address, phone number

and position) involved in the processing of

the adverse action against the Appellant.

iMtik<

ee

50. What various adverse actions were

available to be taken against tne Appellant

based upon the allegations made? (State

each and every element of proof nedessary

to ascertain eacn and every adverse

personnel action that may have been taken

against the Appellant).

51. a. Who made the deicison to take

adverse personnel action against the

Appellant?

b. What other individuals, if

any, had input into said decision?

52. a. Was the stenographer employed

at the oral hearing an FAA employee?

Db. Was the stenographer a notary

public?

c. Was the stenographer sworn for

the purposes of presenting an accurate,

factual and complete account of the oral

presentation?

nizve

d. Were any witnesses sworn?

e. Was the heaeing officer sworn?

f. Were any specific instructions

given to tne stenographer identifying areas

that should or should not be recorded in

her memoranda?

g. Please identify tne name,

address, telephone number and job

classification of the stenographer that was

employed at the oral presentation of the

Appellant.

53. Are there any documents and/or

guidelines and/or regulations which outline

the duties of a hearing officer in a

situation as outlined above? If so, please

attach copies of such regulations and/or

documents to your answers to these

interrogatories.

atin

54. If any questions arose at the oral

presentation, who were such questions

referred to? State the name and job

position of each individuat to whom these

questions were referred.

55. a. When were notices of proposed

removals sent to the Appellant?

b. Please specify the method by

which the Agency determined that tneir

notices were received by their employees?

56. a. Who made the administrative

decision to reduce the notice time period

from thirty days to seven days?

b. What was the basis for tne

decision to reduce the time period in the

case of the Appellant?

c. What facts were relied on to

reduce the time period in the case of tne

Appellant?

|

57. List each and every criteria used

in evaluating whicn individual to use as 4

hearing officer for such oral nearings.

58. As relates to “Notice of Proposed

& Removal", answer the following:

a. Were the notices of proposed

removal preprinted?

b. On what date were these documents

preprinted?

c. At whose direction were these

documents preparinted?

d. On what what date were these

documents delivered to tne FAA and its

Subordinate units?

e. If tne printing was done by a

government printing office, please identify

and provide a copy of all other forms or

requisitions supplied to prompt the

printing of such documents?

Fe Please identify the names and

addresses and job positions of all clerical

staff who participated in the typing of tne

adverse action proposals distributed to Air

Traffic Controllers subject to adverse

personnel action.

g. were any memos received and/or

sent between FAA representatives or

functionaries directing and/or setting up a

timetable for the production and/or

distribution of the notices of proposed

removal ?

5¥Y. Has the Agency consulted witn the

United States Attorney's office with regard

to possible criminal action against the

Appellant? If so, what was the substance

of their communications?

60. As relates to "Notice of Removal",

answer the following:

221.

a. Were the notices of removal

preprinted?

b. On what date were these documents

preprinted?

c. At whose direction were these

documents preprinted?

qd. Onwhat date were these documents

delivered to the FAA and its subordinate

units?

e. If the printing was done by a

government printing office, please identify

and provide a copy of all other forms or

requisitions supplied to prompt the

printing of such documents?

ve Please identify the names and

addresses and job positions of all clerical

staff who participated in the typing of the

adverse action proposals distributed to Air

Traffic Controllers subject to adverse

personnel action.

-22-

g. Were any memos received and/or

sent between FAA representatives or

functionaries directing and/or setting up a

timetable for the production and/or

distribution of the notices of proposed

removal?

61. a. When was the form for the

proposed removal printed? |

b. When was it typed and by whom?

c. Will you voluntarily attach

the memo requesing such forms printing and

typing?

62. Please state the names of each and

every air traffic controller who did work

on August 3, or 4 or 5 or 6 or 7 AND is

presently employed by the FAA as an air

traffic controller or in some other

Capacity. For each such employee, please

State why he was not at work on any of

iit

those dates and the date upon which he did

return to work and the circumstances of

Such return.

63. Please state with specificity eacn

and every complaint, incident of of

misconduct, prejudice, anti-union Dias and

any other negative factor known to involve

the hearing and deciding officials.

64. a. Did the Agency or any

individual within the Agency (employee,

agent, etc.), or any facility under the

jurisdiction, contact Appellant, either

orally or in writing, from August 1, 1961

to present?

b. If your answer to the

aforesaid Interrogatory is in the

affirmative, please attach copies of all

Such correspondence to the Appellant eitner

directly or indirectly related to these

~24-

proceedings, or, in the case of oral

seeantescton. please describe the content

of said oral communications.

65. If the Agency issued or caused to

be delivered or delivered a telegram or

other communication to the Appellant on or

adout August 3, 1981, informing the

Appellant that “an illegal strike was in

progress", or words to that effect, please

answer the following:

a. Who sent the aforesaid telegraph or

coimminication?

dD. On whose authority was said

telegram or communication sent?

C. as said telegram received by the

Appellant? If so, please attach proof of

service.

66. On what day and date was the

Appellant notified of the Agency's decision

to terminate his employment (Intent to

terminate (7-day) letter)? Please attach a

copy of the communication notifying the

Appellant of the Agency's decision to

intend to terminate his or her employment

pending reply, if said communication is not

already attached hereto.

67. a. Was the Appellant ever accused

of committing a criminal or illegal act?

b. If the answer to the above

question is in the affirmative, what

specific criminal act (citing statute) was

the Appellant ever accused of violating?

68. Who or what was the accusing

authority? By way of clarification, how

was it determined that the Appellant

committed an illegal act or a criminal act

and who or what entity made this

determination?

-26-

69. Was said alleged criminal

violation, if any, ever certified to the

Justice Departent, United States of

America, for prosecution?

70. a. Was the Appellant ever

arrested, arraigned, indicted or convicted

of the aforesaid criminal acts or illegal

acts which are referenced herein.

b. If the answer to the aforesaid

question is in the negative, please explain

why said action was not taken.

71. Please list the exact dates and

hours during which the Appellant was

allegedly absent from employment during

duty hours.

72. a. Please specifically set forth

the date and hour after which the Appellant

could not return to his or her employment

facility for the purpose of continuing his

-2/-

or her professional duties as an

air-traffic conroller and state the reason

or reasons therefor.

b. If the answer to the foregoing

Interrogatory is a date and time prior to

the date and time upon which tne Appellant

was formally terminated from employment,

please state the reason or reasons tnat the

Appellant was denied the ability to return

to his or her employment for a normally

Scheduled duty assignment.

73. On what date and time was the

Appellant effectively locked out or

prohibited from entering his or her working

facility?

74. Which individual or individuals or

entity set a time limit for the return to

employment of controllers who were absent?

What time deaaline was establisned?

= 26.

75. Upon what or pursuant to whose

authority was said time deadline

established?

‘6, In what situations and upon what

Or whose authority was said time deadline

establisned?

77. a. In the case of this Appellant,

was an annual leave, sick leave or other

excused absence from employment duty status

revoked or terminated, or shortened, due to

the alleged strike activity?

b. If the answer to the abdove

Interrogatory is in the affirmative, how

was notice of revocation , shortning, or

termination of leave status or authorized

absence status conveyed to the Appellant?

Please attach evidence showing receipt of

such notice by the Appellant if such notice

was conveyed in writing.

a0@s

c. Please recite, list, or attach

hereto, applicable provisions of tne PATCO

bargaining agreement nad/or contract

establishing leave or authorized absence

from employment regulations and please

State whether or not such provisions

between PATCO and the Agency in such

agreement or contract were violated if said

leave or excused absence were revoked,

shortened or terminated.

78. a. Did the Appellant request an

extension of time during which to respond

to the Agency's decision to terminate nis

or her employment?

b. If the answer to the above

Interrogatory is in the affirmative, what

was the Agency's response to said request

for extension of time to answer and, if

denied, please state the reasons given

therefor.

- 30-

79. If the Appellant replied to the

Agency's decision to terminate his or her

employment in writing, please attach a copy

of this writing and then state the reason

or reasons for which tne Agency's initial

decision to terminate was sustained.

80. Were all of Appellant's questions

at the oral hearing answered by the Agency

to the best of its knoweldge and belief,

and in good faith?

81. a. Did the Appellant ever maxe a

request for production of documents

including personnel file and/or documents

discoverable pursuant to the Freedom of

Information Act in connection with the

proceedings against him or ner?

b. If the answer to tne above

Interrogatory is in the affirmative, were

said documents provided to the Appellant?

site

c. If the answer to the above

Interrogatory is in the negative, please

State the reason that said document or

documents or relatea tangible evidence so

requested was not provided to tne Appellant.

d. Assuming that the Appellant

made a request pursuant to tne Freedom of

Information Act to receive certain

documents or evidence, and further assuming

that the Agency declined this request

unless the Appellant paid an amount of

money in excess of $9,000.00, purportedly

for the duplication of over 100,000

documents, please describe or explain in

narrative form the contents of said 100,000

plus documents or information contained

therein which the Agency refused to provide

except upon the payment of said sum of

money.

-32-

82. Was disciplinary action, formal

reprimand, or suspension ever imposed upon

the Appellant by the Agency prior to tie

case at bar? If the answer to tnis

question is in tne affirmative, please

explain, reciting dates, actions taken and

reasons therefor.

83. a. Did the Appeliant ever request

or, if known to the Agency, make an attempt

to return to employment subsequent to

August 3, 1981?

b. If the answer to the above

Interrogatory is in the affirmative, please

state the nature of Appellant's request,

the date said request(s) was made, and the

response thereto by the Agency or any

employee or agent thereof.

84. Please attach hereto all Unsafe

Condition Reports (U.C.R.'s) relevant to or

-33-

filed at the facility at which the

Appellant was employed on August 3, 1981

between 1978 and present.

85. Please state whether or not duress

or coercion on the part of any person,

organization or on the part of tne Federal

Aviation Administration in contributing to

the Appellant's absence, was ever considred

prior to the Agency's decision to terminate

Appellant. Please state all such acts of

duress or coercion of which the agency or

its employees are aware.

86. Were the merits of Appellant's

case ever considered individually, rather

than in connection with the Professional

Air Traffic Controller's Organization as a

group?

87. What percentage of air traffic

controllers who are not administrative,

Ye

management, maintenance and/or

instructional reached retirement?

68. What notices, if any, were

provided as to deadlines or times to return

to dauy?

59. Were telephone calls made to tine

Appellant to return to work?

Provide all oral hearing memranda,

notes and recommendations and summaries if

any such exist.

90. Did the deciding official in the.

Appellant's case make any statement to the

press or anyone stating that he would not

decide against removal for controllers?

91. Did the Oral Presentation officer

have the authority to reverse the firing

announced Dy the President in the Rose

Garden on Augut 3, 1981?

a. If so, did any of the oral

presentation officers nationwide do so?

- 35-

D. If so, state who, where and

present a narrative of the facts in such

case or cases.

92. Did the Deciding official have the

authority to reverse the firing announced

by the President in the Rose Garden on

August 3, 1981?

a. If so, did any of tne deciding

officials nationwide do so?

b. If so, state who, where and

present a narrative of the facts in such

case or cases.

93. Were guidelines, circumstances or

conditions issued by the Federal Aviation

Administration for grounds by which the

Appellant could reverse the proposed firing?

a. If so, what were they?

b. Who was advised of such

guidelines, circumstances of conditions?

-

c. Was the Hearing Official

avised?

d. Was the Deciding Official

advised?

e. Was the Appellant advised?

94, Identify the location of

Appellant's personnel file on the date of

the oral presentation, the date of the

deciding official's decision to remove, and

the date of your answer.

95. Was the Federal Aviation

Administration planning a reduction in

force of air traffic controllers?

96. Identify each and every study,

report, memorandum, note or writing in

which a reduction in force is discussed or

advocated and supply us with a copy.

97. For how many air traffic

controllers was the Federal Aviation

Administration budgeted in 1981-82?

et

98. For each change in procedures on

handling air traffic which occurred after

August 3, 1981, explain why it was not done

earlier.

99. Supply the name, address, phone

number and job description of each Federal

Aviation Administration employee at

Appellant's facility who was disciplined,

reprimanded, suspended, fired or who

otherwise had an adverse personnel action

in 1970 (the year of a similar occurrence).

100. Supply the name, address, pnone

number and jod description of each Federal

Aviation Administration employee at

Appellant's facility who was disciplined,

reprimanded, suspended, fired or who

otherwise had an adverse personnel action

in 1971-1981.

101. Has the Federal Aviation

7"

Administration or any official thereof

directed or suggested to Federal Aviation

Administration employees that they make no

statements for or in favor of the

Appellant? If so, identify each and, if in

writing, attach a copy.

102. Identify by name, address and

phone number each air traffic controller

who was not working on August 3, 1981, and

later returned to work at the same facility

at which Appellant was employed. Explain

the dates such air traffic controller was

not working, the reasons therefor, and the

dates and circumstances of his return.

103. Were air traffic controllers who

were not working on August 3, 1981, and

Subsequently returned, required to sign or

volunteered to sign any document regarding

Striking or their reasons for absence.

-39-

Identify and attach each such document at

Appellant's facility.

104. How much time did the deciding

official take in reviewing the Appellant's

case in making his decision.

105. How much time did the hearing

official taxe in the hearing?

106. Please provide the duty roster and

time logs for the deciding official,

hearing official and all management

personnel for the months of August and

September.

107. Did Appellant's hearing official

consult with any person before answering

Appellant's questions? If so, state all

such persons and the substance of the

consultation.

at.

108. On what date was the “Notice of

proposed removal" typed? On what date was

the said noticed signed?

109. On what date was the "Notice of

Removal" typed? On what date was the said

notice signed?

110. State the names, addresses and

phone numbers of all Federal Aviation

Administration employees at Appellant's

facility who were hired, rehired or

otherwise placed as air traffic controllers

on or after August 3, 1981.

111. a. Were all of tnese employees

medically, emotionally ad physically

qualified?

b. Were any of these employees

previously identified as not medically,

emotionally or physically qualified?

ait.

112. Did the hearing cfficial refuse to

supply information or authority for his

actions except to rely upon U.S. Code 1918

and 7311?

a. If not, supply all such

information.

dD. If so, explain why.

Did the hearing or deciding

officials agree to make available any

additional evidence beyond that shown at

the oral hearing?

113. Have any documents relevant to

this matter been removed, lost, destroyed

or altered? If so, state for each, when

and by whom.

114. Was union representation afforded,

allowed and offered Appellant at all

briefings by Federal Aviation

Administration management?

«42.

115. How did the notices, leave

schedule and other preparations for the

June anticipated events differ from those

for the August events?

llo. Were the locks to the facility the

normal methods of entry to the facility

altered after August 3, 1981? If so, when

and by whom.

117. Name all persons who had input

into the decision in Appellant's firing.

118. Please supply a copy of all

“unsafe Condition Reports" and records of

Facility Technical Advisory Committee

meetings for the last two years for

Appellant's facility.

119. Was any air traffic controller.

fired in August or September 1981 and then

later returned to work? If so, state the

name and details of each such incident.

|

120. What procedures, sections,

provisions or rights of the negotiated

Agreement of PATC®O applied to any, each and

all stages of the events leading up to and

including the firing of the Appellant.

State each such procedure, section,

provision or right which was conformed to

by the Agency and each which the Agency

violated.

121. Please list or explain, in

narrative form the Agency's reasons for

alleging that the Appellant took part in

strike activity in this instance. If

Appellant was observed participating in

alleged strike activity, please list along

with your answer, the names and addresses

of all such observers. If your answer is

predicated upon non-attendance from

ay

employment, please list the dates and time

of said alleged non-attendance and attach

log sheet(s) or other evidence which would

Substantiate said non-attendance.

122. a. Did the Agency ever attempt to

make or infer a distinction between absence

from employment during duty hnours due to

strike activity and absence from employment

during duty hours for any other reason,

e.g. leave status, AWOL, etc.?

b. If your answer to the above

Interrogatory is in the affirmative, how

did the Agency distinguish controllers who

were absent from duty due to alleged strike

activity from controllers who were absent

from duty without leave or authority on tne

at.

part of the Agency but without actually

taking part in the strike?

COOPER & COHEN

By: /S/

STEVEN Z. COHEN (P-29344)

Attorneys for Appellant

3000 Town Center, Suite 909

Southfield, Michigan 48075

Telephone: (313)352-8090

i papers fF i

STEPHEN C. COOPER (P-12211)

Attorneys for Appellant

3000 Town Center, Suite 909

Southfield, Michigan 48075

Telephone: (313)352-8090

35 36a

-46-

APPENDIX 4:

Order ALJ-3

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CERTAIN FORMER AIR TRAFFIC

CONTROLLERS,

)

)

)

Appellants )

V. ) Discovery

) No: ALJ-J

FEDERAL AVIATION ADMINIS- )

}

)

)

TRATION,

Respondent

ORDER

Stephen C. Cooper and Steven Z. Cohen,

counsel for former air traffic controllers

whose appeals are pending in several of the

Board's Regional Offices have filed

separate motions to compel answer by FAA to

interrogatories on behalf of certain

individual appellants. The FAA has

responded with objections to certain

questions. The sets of interogatories,

which consist of a maximum of 122

separately numbered questions, present

identical questions in each set, through

some sets do not contain as many of the

questions as do others. However, many

questions are peueated within a single set

of interrogatories. A comparison of the

motions filed in the Regional Offices also

reveals that in some instances the order in

which the same questions are stated varies

from one region to another. This makes it

unnecessarily burdensome for the Board to

consider and for the respondent to answer

each set of interrogatories separately.

There is attached a set of

interrogatories 1/ which are illustrative

of tnose filed on behalf of all

appellants. Since the attached set of

17 Filed on behalf of Joseph D. Badami,

Chicago ARTCC.

interrogatories cover the information

sought by all the appellants on whose

behalf counsel filed motions and in order

to facilitate the preparation of responses

to the interrogatories, this order is made

applicable to all such motions to compel

answers to interrogatories filed by

counsel, Cooper and Cohen, In their

orders, the presiding officiais will

identify the specific motion or requests to

which this Order applies. The answers of

FAA to the Badami interrogatories may be

used in responding to tne questions

propounded under the other motions. Upon

consideration of the pleadings, the motions

are GRANTED in part and DENIED in part.

A, The FAA is ORDERED to respond

separately for each appellant to

questions 1, 4, 7, 10, 13, 18,

1. @ Gad &, 21, 36, 45, 54, 55, $6, 65,

Te, 7a, 1%, 75, fla-d, 78, 80, 83, 85, 86,

89, 90, 91,*92, *113, and 121] which seek

relevant information.

(* not a and b)

B. The motion is DENIED as to:

far peestroes ¢, 3, 8, V1, 12, 14, 1 ¢

oo 2. af, BOs Che 22,5. 23, 20, 26, <7,

ae, ot, ae, of 41, 54, 46, 47, 48, 32,

Ba, Or, Bo, Oa, G2, 69, 70, Sid, Se,

oa, 67, 95, 96, 97, 98, 103, 104, 105,

Sen Fae bee Phe, TIT, UR, TTS, TH

and 118 since tnere has been no showing

of relevancy;

(2) questions 9, 38 40, 99, ana 100

since they are overly broad and

burdensome;

(3) questions 6, 1l6e, 18, 28, 29, 33,

a8, 30, 82, $8, 60, 61, 76, 86, 91 a &

oe fen, Se, 101, 10d, 119, 120, and

122 since, to the extent they seek

relevant information, it will

substantially be produced pursuant to

General Discovery Order ALuJ-1 of April

7, 1982, ALJ-2 of April 15, 1982 and

the witness list and statement of facts

and issues to be exchanged upon ORDER

of the Regional Offices. Additionally,

the parties are ORDERED to exchange

exhibits to be used at hearing and not

of record ten days prior to the hearing

unless otherwise directed by the

presiding official;

(4) questions 64,- 66, 67, 68, 71, 79,

and 8la-c since the information sought

is within the movants' knowledge or is

already in the record;

(5) questions 5, 19, 39, 50 ana 77c

since tney ask for legal conclusions;

and

(6) questions 43, 49, 51, 94, 107,

112, and 117 since they seek

information which will be disclosed

pursuant to rulings on other questions.

The presiding official is authorized to

set the time for response and to sign and

serve on my behalf such orders as-are

necessary to effectuate tnis ruling.

Dated: May 26, 1982 /s/

Jonn J. McCarthy

Chief Administrative

Law Judge

3538a

APPENDIX 5:

Motion for Production of Documents

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO FIELD OFFICE

In the Matter of:

STEVEN W. CONAWAY,

Appellant,

VS.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION AOMINISTRATION,

Agency.

/

MOTION FOR PRODUCTION OF DOCUMENTS

NOW COMES the Appellant, by and through

his attorneys, COOPER & COHEN by STEVEN Z.

COHEN, pursuant to 5 C.F.R. §1201.81, and

for his Motion for Production of Documents

pursuant to Subpoena states as follows:

a Appellant filed his claim of

appeal before the Merits Systems Protection

Board pursuant to his rights under 5 C.F.R.

$1201, et seq.

- Within his claim of appeal, it is

necessary for him to prepare his case and

sustain his burden of proof before the

Merit Systems Protection Board.

3. In order to sustain said burden,

it will be necessary for Appellant to

discover certain documents thereof tnat are

in the possession of the Federal Aviation

Administration.

4. A complete list of the documents

requested is attached hereto and

incorporated by reference as though set

forth in full.

5. 5 C.F.R. §1201.81 provides for the

production of documents pursuant to |

Subpoenas issued by the Merit Systems

Protection Board.

WHEREFORE, Appellant prays this

Honorable Board grant his Motion for

Production of Documents and order said

documents to be produced for copying at the

offices of Appellant's attorney forthwith

so that this matter may proceed and the

Board may be fully advised in the premises.

COOPER & COHEN

/S/

STEVEN Z. COHEN ( 29344)

Attorney for Appellant

3000 Town Center, Suite 909

Southfield, Michigan 48075

352-8090

3539a

LIST OF DOCUMENTS

A. Transcripts of any and all

Speeches, statements and press releases

made oy officials of tne U.S. Government as

relates to the so-called Strike of August

3, 198i.

B. Any and all directives and orders

of any kind issued by officials of the

Agency as relates to handling of firings

and Merit Systems Protection Board hearings

of Air Traffic Controllers.

- Transcript of appearance of Drew

Lewis on "Face the Nation" and on or at any

other show, meeting, speech, or interview.

D. Details of all adverse personnel

action proposals and final decisions by the

Federal Aviation Administration since

January 1, 1981 to the present and the

Sanctions or remedy imposed.

es Any and all memoranda, notes,

research, discussions and records relating

to possible criminal action against Air

Traffic Controllers within the meaning of 5

U.3.€. $7571.

Ps Any and al! research and studies

of the health and safety of Air Traffic

Controllers and their jobs.

G. Details of any and all devices

and/or equipment which have been considered

by or suggested to the Agency over the last

five (5) years for use by Air Treaffic

Controllers with details as to how sucn

device or equipment would or could affect

the Air Traffic Controller or his job

safety and health.

H. For each and every regulation,

order, directive or rule relating to tne

performance of the Air Traffic Controller's

job, which has been supplemented, changed

or modi fied Since August 1, 1981. Supply

both the new regulation and the one it

modified, supplemented or changed.

- Supply copies of all writings in

your files relating to stress of Air

Traffic Controllers.

J. Please supply copies of any and

all writings tending to show that part or

all of the Air Traffic Controller's job was

harmful to his health or safety or both.

K. Supply copies of any and ali

Statements made by any party or agent of a

party or witness or potential witness in

this act which concerns this case.

- Supply copies of any and all

evidence, records, testimony, photographs

Or other exhibits you intend to produce at

the hearing on this matter.

M. Supply the personnel files of the

deciding officer and hearing officer and

copies of any and all complaints ever made

against either such official.

Ne Supply copies of all directives,

orders and rules supplied to the deciding

officer and hearing officer as relates to

the nadling of all personnel actions in

June, July, August, September, October and

November, 1981 and January and December,

1970.

0. Supply copies of any and all

decisions of the Federal Aviation

Administration and Merit Systems Protection

Board (or its predecessor) as it relates to

Federal Aviation Administration employees

charged with AWOL or striking fom 1968 to

date.

rs Supply each and every memorandum

or other writing requested in the

Interrogatories in this case.

Q. For any document requested herein

which you do not produce, describe with

specificity why you cannot comply.

R. Supply the complete personnel file

of Appellant.

oa Any and all copies of performance

appraisals of Appellant.

we The complete job description of

the Appellant's position.

3539a

APPENDIX 6:

Order on Motion for Discovery and

Enjoining, Restraining and Staying

Destruction of Documents

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO REGIONAL OFFICE

IN THE MATTER OF:

Former Air Traffic

Controllers (See Attacned

List)

v

Department of Trans-

portation Federal Aviation

Administration

et ltt

ORDER ON MOTION FOR DISCOVERY AND

ENJOINING, RESTRAINING AND STAYING

DESTRUCTION OF DOCUMENTS

The appellants have timely filed or

renewed previously filed Motions for

Discovery and to Enjoin, Restrain and Stay

Destruction of Documents and for oral

argument thereon.

The appellants’ motions and the

agency's objections have been considered

and the following rulings are made:

(a) The requests for documents

identified in A, B, and C, are

responded to in the General Discovery

Order ALJ-1] issued by the Board on

April 7, 1982 and no furtner ruling is

necessary;

(b) The requests for documents

identified in D are substantially

covered by the General Discovery Order

ALJ-1, April 7, 1982, and that portion

of D not covered by that order is

denied as not relevant to the instant

appeals;

(c) the requests for documents

identified in E are denied as too

broad, and to order their production

would be a violation of the attorney

work product and the attorney-client

privilege;

(d) the requests for documents

identified in F, G, H, I, and J are

denied as not relevant to the instant

appeals;

(e) the requests for documents

identified in K are denied as too broad;

(f) the requests for documents

identified in L are denied as

premature, as a schedule for the

exchange of these documents will be set

at the time the hearings are scheduled;

(g) the requests for documents

identified in M are denied as not

relevant to the instant appeals;

+

(hn) the requests for documents

identified in N are responded to in

General Discovery Order ALJ-1, April 7,

1982 and no further ruling is necessary;

(i) the requests for documents

identified in O are denied as too broad

and because at least half of the

documents requested are a matter of

public record;

(j) the requests for documents

identified in P and Q are grantec;

(k) the requests for documents

identified in R are covered by the

General Discovery Order ALJ-1, April 7,

1982 and no further ruling is necessary ;

(1) the agency is ordered to produce

for each appellant covered by this

order the documents requested whicn are

identified in S and T, unless those

documents are contained in the

appellants’ personnel files, in which

case production is covered by the

a Discovery Order ALJ-1, April 7,

982.

Production in accordance with this order is

to be completed by July 16, 1982.

The appellants' Motion to Enjoin, Restrain

and Stay Destruction of Documents is denied.

The appellant's Motions for Oral Argument

with respect to these motions is denied.

SO ORDERED:

Date: June 18, 1982 /S/

Julia P. Grip

Presiding

Of ficial

3540a

APPENDIX 7:

Order on Requests for witnesses

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO REGIONAL OFFICE

IN THE MATTER OF:

Michael L. Burye, et al-DET

V.

Department of Transportation

Federal Aviation Administrati

oe ee

n)

ORDER ON REQUESTS FOR WITNESSES

Upon consideration fo the parties’

requests for witnesses, and objections made

therto, the following ruling is made:

The agency has requested the appearance

of the individual appellants as witnesses

in its case-in-chief. Over the appellants’

objections, it is ordered that the

appellants covered by this order appear at

the hearing to give testimony in the

agency's case-in-chief. Failure of an

appellant to appear and testify may result

in the imposition of sanctions under 5

C.R.F. 1201.43. The appellants will be

open to examination by all parties.

The agency will also be allowed to call

Messrs. Robert Shipp, Kenneth Melotte,

Charles Walton, Michael L. Shite, and U. S.

Marshal witz.

Appellants Burye and Hice may call] anda

the agency is ordered to produce the

following witnesses: Messrs. Shipp, Melotte

and Ms. Olga Krynski. The appellants may

also call Messrs. Elmer Beyer, Thomas

Ottenbaker, and Karl Schafer; also Ws.

Grace Hice and Ms. Karen bBurye.

Mr. Kenneth Patterson is granted by way

of deposition de bene esse.

These two appellants also requested

numerous other witnesses who are denied

them for the following reasons:

Lawrence M. Jones

Stephen H. Fuller

David G. Bowers

The appellants indicated that they would

elicit testimony from these three

individuals as to the causes and reasons

for the strike and tne hazardous,

dangerous, and unsafe working conditions

which existed at the facility. This

testimony is considered to be irrelevant to

the question of

appellants were

the question of

appellants were

whether or not the

On strike and immaterial to

whether or not tne

absent without leave.

Walter Mondale

J. Lynn Helms

Andrew Lewis

James A. Baker

William Ford

Edwin Meese

II]

Ronald Reagan

Langhorn Bond

Michael K.

Keith Burk

Deaver

Wes Walker

E. V. Curran

R. J. Van Vuren

Richard Shewfelt

The appellants indicated thaty they would

elicit testimony from these witnesses to

the effect that the agency was planning a

reduction-in-force and that this strike was

fomented by the agency to avoid a

reduction-in-force and thereby save the

agency considerable funds. The appellants

would also elicit testimony concerning the

procedures used to teminate the appellants

and to the dangerous and hazardous working

conditions in existence at tne facilities.

As to the procedures used to terminate the

appellants, these witnesses are not deemed

to have any material ‘nowledge which is not

available from the witnesses already

granted to the appeliants. As to working

conditions, as stated above the requested

-4-

testimony is irrelevant to the question of

whether the appellants were on strike and

immaterial to the question of whether the

appellants were absent without leave. The

question of whether the agency fomented a

strike which was called by the Professional

Air Traffic Controllers Organization

(PATCO), at the national level, is

immaterial to the question of whether these

three appellants were on strike. See

ALJ-1(c)(g)(1), August 16, 1982.

Janice Plummer

The appellants indicate that she was a

fired air traffic controller who was

returned to work in a settlement agreement

with the agency. They indicate that her

testimony is necessary to establish their

argument of unequal protection of law. As

indicated in ALJ-1(c)(g)(1) (August 16,

1982), "“(t)here are many speculative

reasons why the FAA may have decided to

reinstate or rehire a former controller

rather than contest that particular

controller's appeal before the board. As

succinctly explained in ALJ-1(C)(y), tne

FAA's reconsidered decisions to renire or

reinstate former controllers would have no

relevance to the merits of the original

decisions to remove those controllers."

The testimony of this witness is deemed to

be irrelevant to the issues of this appeal.

Clifton F. Von Kann

Robert Whittaker

Glenn M. Anderson

Charles F. Ehret

Berry Beeder

Bruce Danto

Emanuel Tanay

Ralph A. Amato

Dr. Glenn C. Kinney

Dr. Mark J. Spahn

Michael W. Hurst, Ed.D.

C. David Jenkins Ph.D.

Robert M. Rose, M.D.

John J. Corson

Mr. Peter W. Bernhard

Dr. Allern D. Catterson

Dr. Robben W. Fleming

Mr. Arthur D. Lewis

Mr. James M. Mitchell

Mr. Stanley H. Ruttenberg

Leland J. Eck

Gerald M. Boprie

Gerald Heffner

Norman T. Lang

Kerry G. Matthews

Michael J. Mitchell

F, Lee Bailey

William Ford (previously denied)

Dr. Brattin

The appellants indicate that they will

elicit ‘estimony from thes witnesses to

show the hazardous, dangerous, and unsafe

working conditions which the air traffic

controller profession is subjected to and

the specific conditions which existed at

the Detroit City facility. They would also

testify to the stress resulting from those

conditions. As stated above, this

testimony is deemed to be irrelevant to the

question of whether or not the appellants

were on strike and immaterial to whether or

not they were absent without leave.

Former Assistant U. S. Attorney

The appellants indicate that they will

elicit testimony about statements made in

open Court in front of Judge Cohen of the

United States District Court concerning an

order to all controllers to return to work.

The appellants are advised to submit the

transcript of the Court proceedings. The

witness is denied.

Suzanne Holloway

This witness is denied because it is

apparent that she does not have any

knowledge of facts material to this appeal.

The request for “all dismissed

controllers", “all FAA personnel employed

at the facility", and "all maintenance

technicians" is denied as too broad.

Wayne Barlow

Johhn Robinson

Phillip Davenport

Richard Griffith

Charlie Walton

Mike White

Wanda Cooper

Barbara Martin

Jack Calarone

Debbie Zielinski

These witnesses are denied as

repetitive of those already granted or

ordered to appear.

The remaining appellants did not submit

a request for any witnesses.

SO ORDERED:

Date: September 27, 1982 /S/

Julia P. Grip

Presiding

Official

3541a

APPENDIX 8:

Appellants’ keyional Interrogatories

UNITES STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO REGIONAL OFFICE

In the Matter of:

FORMER AIR TRAFFIC CONTROLLERS

represented by COOPER & COHEN, P.C.,

3000 Town Center, Suite 1150,

Southfield, Michigan 48075,

VS

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION

/

APPELLANTS'REGIONAL INTERROGATORIES

NOW COME the Appellants, Dy and through

their attorneys, COOPER & COHEN, P.C., and

for Regional Interrogatories, as ordered by

Presiding Official Stephen Manrose,

propound the following questions to be

answered by the Agency separately and in

writing, under oath, within twenty (20)

days of receipt thereof. All

interrogatories are continuing in nature.

Set forth in detail the current

air traffic controller work force,

including supervisory personnel, in tae

Great Lakes Region.

es Set forth in detail the work force

of non-supervisory air traffic control

personnel in the region immediately prior

to August 3rd, 1981.

i Set forth in detail any regional

notices issued regarding policies,

practices, procedures and guidelines for

discharging controllers in 1981.

a. Produce said regional notices.

4, Identify and set forth in detail

the general notices received by the

facilities in this region regarding Freedon

of Information Act requests filed by

controllers charged with alleged striking.

5. Identify by name and title all FAA

personnel who participated, in any manner,

in the decision to discharge (and the

actual discharges) of controllers for

alleged strike activity.

a. What specific input or action

did eacn of these individuals undertake?

8. With regard to any adverse action

taken against the controllers, did the

national office give certain instructions

to be implemented at the regional level?

a. Did the instructions come

from the regional offices?

Ds Set forth tnose instructions

in detail.

a Please state with specificity the

names of the facility chief or deciding

officials responsible for any plans for

disciplinary action with regard to job

actions, alleged strikes, slow-downs,

Sick-outs, etc.

a. How many people from this

region were involved?

dD. Wnich office of the FAA

national level was directing tne

disciplinary action?

8. Identify, summarize and produce

all documents setting forth all

administrative contingency plans for use on

a national basis.

9. Set forth in detail the normal

policy effective August 3rd, 1981, for

cancellation of leave as stated in the

handbook.

a. What are permissible reasons

for cancelling leave?

b. Must the reasons be in

writing or may they be oral?

10. What level of absenteeism would

constitute an operational emergency?

a. Is this determination

contained within a written policy?

Identify, summarize and produce all such

doceuments.

db. State tne level on a national

basis.

Cs State tne level for the

Chicago Regional facilities.

d. Who is the appropriate

authority to make the determination of

whether an operational emergency exists?

11. Set forth in detail the specific

metnod of plan used in sending telegrams to

the controllers who missed their first

scheduled shift after August 3rd, 1981.

a. Produce all records showing

the final date on which the telegrams,

which were to be sent to the controllers,

had in fact all been sent out.

b. Produce the documented proof

that all of said telegrams had in fact been

received.

12. Set forth the manner in whicn

GENOT 127 was implemented. Specifically,

State the method oy which the FAA notified

controllers who were not at work on August

3rd, 1981, of the information contained in

GENOT 127 - i.e., of the President's

statement regarding the 48-hour deadline in

this region?

a. Produce any document snowing

the method of notification.

b. Produce any written

notification used.

13. Set forth in detail the efforts

made to notify the controllers who were not

at work on August 3rd, 1981, that if tney

reported to work by the first shift after

11:00 a.m., Wednesday, August 5th, that

they would be allowed to report to work.

14. Set forth in detail the names of

people in. the regional office who received

calls from controllers regarding es to tie

implementation of the 48-hour deadline.

15. How many controllers in the

Chicagto Region came back to work before

the 48-hour deadiine?

a. What are the names of said

controllers.

16. Was any adverse action proposed

against any alleged strikers who returned

under the President's 48-hour deadline. If

yes, what adverse action was contemplated?

17. Set forth in detail any adverse

action taken at an individual facility

level which was inconsistent with the

national policy regarding controllers who

returned to work.

18. Set forth in detail the names of

any returning controllers in this region

who were disciplined.

19. Set forth in detail the names of

controllers who missed tne 48-hour deadline

and were allowed to return to work.

20. Other than GENOT 147, identify and

set forth in detail tne contents of any

other policy utilized by the FAA in this

region regarding designation of oral reply

officers.

d. How were such designations

made?

b. What criterion was used to

determine the qualifications of oral reply

officials.

Cs Who made these selections?

21. State the level of participation

and involvement at the regional level of

the decision to use the seven-day notice

provision.

22. Identify, summarize and produce

all GENOTS which contain instructions that

the region received regarding the procedure

that were to be followed by the oral reply

officials and the deciding officials.

23. Were deciding officials or reply

officials allowed to consider the potential

for rehabilitation of a particular

individual. Identify ana set forth in

detail the contents of any document

addressing this subject.

24. State in detail the names of any

members of your staff presently at the FAA

regional office who participated in the

1970 job action. Are any of them

Supervisors or other members of

management? If yes, state their names.

25. Are there any specific policies,

guidelines written directives or other

orders, either written or oral, that

prohibit the hiring of controllers

appealing their removals? If yes,

identify, summarize and produce them.

20. State in detail tne Agency's

poisition regarding controllers who

returned to work before the deadline. Did

the Agency consider these controllers to

have been on strike? |

27. Identify and set fortn in detail

the substance of any and all directives

given to the Chicago Region facility chiefs

Other than the GENOTS regarding the manner

in which controllers would be allowed to

return to work prior to August 5th.

28. Did anyone from the FAA regional

office have contact with the U.S.

«ttn

Attorney's office regarding possible

prosecution of or amnesty for apvsent

controllers? If yes, state the date, time

and place of such contact, the FAA

personnel having such contact and the

Substance of such conversations.

29. In order to return to work at any

time, either prior to the deadline or

subsequent, were air traffic controllers

required to sign a statement admitting

their participation in the alleged strike?

30. Were the air traffic controllers

forced or requested to sign any otner

documentation? If yes, identify such

documentation.

31. How many directives regarding the

handling of absent controllers were sent to

FAA regional offices between August 3 and

the six months after the alleged strike.

atic

Identify and summarize each such directive.

32. Were any directives or other

documents sent to tower chiefs or center

chiefs giving specific instructions

regarding the removal cases?

33. List any instructions given to the

hearing officials that were not in writing

and have not been produced so tar by the

Agency regarding how removal cases were to

be handled and/or decided.

34. Identify by name and title any and

all FAA officials who issued any such

instructions.

35. With regard to nearing officials

having to be employees of the FAA and

GENOTS indicating guidelines to be

followed, if the guidelines were not

followed, was that person removed as a

hearing invalid?

-l2-

36. State with specificity the

procedure used to cancel annual leaves.

37. State witn specificity the

instructions given to facility chiefs as to

NnOw annual leaves were to be cancelled.

a. who gave those instructions.

h. Were tnese instructions

followed to the letter in every case?

38. Is there an Agency procedure or

policy that states the preferred way for

annual leave to be cancelled?

a. Produce a copy of said

procedure or policy.

39. With regard to terminating the

controllers who participated in the alleged

strike, was there a national or regional

policy to give any leniency or

considerations of leniency to any

controllers?

at2s

a. Did there exist any policy,

guideline or directive which prohibited any

punishment other than termination? If yes,

identify and set forth in detail the

contents of any such directive, guideline

or policy, including the person wno issued

it.

40. Are there any rules, regulations

or procedures with regard to what has to be

included in a notice of removal?

41. State with specificity any and all

guidelines as to the discretion and/or

latitude oral reply officials had witn

regard to adverse action.

42. Were special intake telephones set

up in any of the facilities to receive

telephone calls from the controllers who

wanted to come back to work?

a. What other actions were taken

=

to receive communications from controllers

about returning to work?

43. With regard to the "proposed

notice" given to certain controllers, were

hearing officers instructed to ask

controllers about confusion with regard to

tne letter?

a. How were they so instructed?

44. Are the computers utilized in the

towers outdated for use by air traffic

controllers? Please state, for eacn

facility, how often computers have been

repaired and/or have broken down, and tne

length of time between repairs. Are the

computers the newest available, given the

"state of the art"? If not, explain why

the computers have not been updated.

45. Did there exist any guidelines,

instructions or procedures regarding the

-15-

discharge of controllers who cited unsafe

conditions or safety conditions at the job

sites?

a If so, identify and set forth

in detail the substance of such documents.

40. Were there any policies,

guidelines or instructions with regard to

discharging controllers that mentioned

safety conditions or the unsafe working

conditions under which the controllers

might have been working?

47. State tne name of the person in

charge of safety at each facility and for

the region.

48. Identify all grievances filed

regarding facility and controller safety.

49. Has the Agency issued guidelines

as to the definition of harmful error in

terms of procedures followed in the

vite

discharges? If so, set forth these

guidelines.

50. To your Knowledge, does the Agency

have a policy as to whether mitigating

circumstances including (but not limited

to) unusual job tensions, personality

problems, mental impairment, narassment or

bad faith, malice or provocation on the

part of others involved in the matter

should have been considered in determining

any adverse action to be taken.

51. State with specificity the methods

used to select tne hearing officials.

52. What training (if any) was given

to these hearing officers prior to the time

they assumed tneir duties?

53. Did the hearing officers have any

experience in personnel matters or specific

knowledge of the regulations?

vite

54. Was there any communication in the

way of conversations, etc., between tne

region and the facility chief witn respect

to cases or how to decide them?

55. State with specificity the factors

an individual deciding official could rely

on in determining whether an individual

controller should be returned to duty.

a. If such factors are set forth

in writing in a directive, guideline or

regulation, identify such document.

56. State whether or not regulations

exist as to the procedure for cancellation

of annual leave.

a. Identify and summarize the

substance of those regulations.

57. Set forth in detail any and all

security plans relative to safety and

measure to be taken.

sti.

58. Have facility chiefs ever declared

emergencies at his or her facility? If

yes, state the date and time, the facility,

the facility chief and the nature of the

emergency.

59. Please state in detail any and all

procedures and/or practices governing tie

tendering and acceptance of resignations.

a. Have any controllers resigned

in this region in the last ten years for

health or safety related reasons? If yes,

State (1) now many; (2) their names ana

facilities; (3) date reseigned; (4) length

of service; (5) reason for resignation.

60. State the general policy of the

FAA regarding the rehiring of an employee

after he or she resigns.

61. Has tne FAA ever rehired any such

controllers? If yes, how many? State

=f%.

their names, facilities and dates of

resignation and rehire.

62. Has the FAA considered

reinstatement of any controllers who

engaged in alleged strike activity? If so,

state the controllers involved, the reasons

for such review and the action that mignt

possibly be taken with respect to their

potential reinstatement.

63. Is there a policy regarding back

pay, seniority and/or placement for

reinstated controllers? If yes, set it

fortn in detail.

64. Do you have any knowledye whether

any controllers, trainees or developmentals

were told that they would wash out of

training if they did not participate in the

job action? What communications or

follow-ups did the facility chiefs used to

-20-

communicate to the developmental/trainee

employee?

65. In your region were any

individuals, any developmental trainee

positions, people holding those positions,

reinstated according to GENOT 141?

66. Did there exist any regional

directives, instructions or procedures

concerning the determination by the Agency

whether an individual controller failed to

report for work for reasons other than

being on strike?

67. After tne Presidential deadline of

August 5th, but before the letter of intent

to remove was sent out, were any regional

directives issued by the Agency to ve used

in determining whether controllers had

failed to report for work did so for

reasons other than being on strike?

nt.

68. After the letter of intent to

remove was sent out but before the oral

hearing, were there any regional directives

for the Agency to determine whether an

individual controller failed to report for

work for reasons other than being on strike?

69. Did any facility chiefs contact or

have supervisors contact individuals to

try, either by telephone or in person, to

get them back to work? |

a. Please state names of the

chiefs and the individuals contacted.

b. Please state the method of

contact.

70. What are the regulations in tne

Great Lakes Region concerning the

cancellation of annual leave?

a. How did you implement these

regulations?

-22-

b. How were the facility chiefs

ordered to effectuate the cancellation of

annual leave?

C. Were all controllers

contacted that were on annual leave?

Identify all tne controllers contacted and

all those not contacted.

71. Were telegrams sent to all air

traffic controllers on annual leave

advising them that their annual leave was

cancelled effective August 3rd? When were

they sent?

72. Are there any FAA regulations,

guidelines or policies in the Great Lakes

Region concerning who would be the

proposing officer and the deciding officer

in each removal action?

a. Were there any instances

where the deciding and removing officers

«23.

were the same person? If so, for which

controllers?

73. Set forth in detail the content of

any communications, written or otherwise,

that were sent to various towers and

facility chiefs regarding media contact

from August 1981 to tne present?

74. How many controllers in the Great

Lakes Region received favorable

recommendations for return at the oral

hearing?

a. State tne names and

facilities of said controllers, and the

reasons for such favorable recommendations.

75. State the names and positions of

all controllers on whom electronic/physical

surveillance (wire-tapping/photographs) was

conducted.

76. Supply any and all lists of names

o2&s

which were submitted to the Department of

Justice for prosecution, either prior to or

subsequent to August 3rd, 1981.

a. How did the FAA determine

| © which names to suomit?

COOPER & COHEN, P.C.

/S/

Steven Z. Cohen

Attorneys for Appellants

3000 Town Center, #1150

Southfield, Michigan 48075

(313) 352-8090

Dated: May 28, 1982

3543a

36

APPENDIX 9:

Regional Discovery Urder

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO REGIONAL OFFICE

IN THE MATTER OF:

Former Air Traffic

Controllers

v.

Department of Transportation

Federal Aviation Administration

ee eee ee eee ee eee ee ee

REGIONAL DISCOVERY ORDER

This order is for the purpose of ruling

on proposed interrogatories which were

timely submitted by four appellant

representatives who actively participated

at the regional air traffic controller

appeal deposition which was held in Des

Plaines, Illinois on May 6, 1982. Board

guidelines for the submission and

consideration of such interrogatories were

set forth both in the transcript of the

deposition and in a Regional Office order

dated May 20, 1982. Only those

interrogatories which met these guidelines

are herein forwarded to the Board's

Administrative Law Judye for a ruling. The

timetable for the agency's service of

interrogatories which it is ordered to

complete will be set forth in furtner Board

orders. The agency need not serve tne

Board with copies of the completed

interrogatories. It must, however, serve

copies of its answers on all of the active

participants in the regional discovery

process, who are listed in the attached

service sheet. Specific rulings on the

proposed interrogatories are made as

follows:

Appellant representatives Hafsten and

Phillips each requested a total of four

interrogatories. I am forwarding all of

their interrogatories to the Board's

Administrative Law Judge for a ruling.

«2e

Appellant representative Golafarb of

the Firm of Leighton, Conklin, Lemov,

Jacobs and Buckley requested a total of

five interrogatories. I will present

interrogatories 4 and 5 to the

Administrative Law Judge for a ruling.

Interrogataory 1 is repetitious in view of

the information supplied in ALJ-1 (as noted

in the Judge's rulings in ALJ-3);

interrogatory 2 relates to a facility,

rather than to a regional, issue; and the

information sought in interrogatory 3 was

previously ruled on in ALJ-2.

Appellant representative Steven Z.

Cohen of the law firm of Cooper and Cohen

presented a total of 76 interrogatories,

many of which were subdivided. Except

where specifically noted below, these

interrogatories will not be presented to

«tie

the Administrative Law Judge for a ruling.

The reasons cited for failing to present

pertinent interrogatories to the

Administrative Law Judge is not necessarily

exhaustive of those reasons whicn coula

have been cited; the reasons only

constitute one or more bases for my

rulings. The following rulings are made,

referencing the specific numbers and

subpa

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