Petition for Writ of Certiorari — Hodges v. Department of Transportation, Federal Aviation Administration

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IN THE

Supreme Court of the United States

OcTosBEeR TERM, 1985

WILLIE J. HODGES,

Petitioner,

— against —

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

JOAN STERN KIoKk

Counsel for Petitioner

32 Broadway - Suite 1800

New York, New York 10004

(212) 635-0700

QUESTIONS PRESENTED

1. Whether a federal employee who

was On approved annual leave at the time

of a strike may be discharged for strike

participation where the leave cancella-

tion notice relied upon by the agency was

allegedly placed ina "read and intitial"

binder six weeks prior to the employee's

scheduled leave, and:

(a) The notice was noc introduced

at the hearing;

(b) There was no evidence that the

employee had read or intialled the notice;

torn out of the binder;

(a) The agency issued a second no-

tice, just prior to the strike, but after

the commencement of the employee's leave;

(e) There was no evidence of actual

strike participation by the employee.

2. Whether it was arbitrary and ca-

pricious for the Federal Aviation Admini-

stration to discharge petitioner for par-

ticipating in a strike when other employ-

ees on approved annual leave were permit-

ted to return to work.

3. Whether it was arbitrary and ca-

pricious for the Merit Systems Protection

Board to sustain petitioner's discharge

when in four similar cases it reversed

the discharges of nine other employees

on the ground that the notice was insuf-

ficient to cancel approved annual leave.

iii

Table of Contents

Questions Presented

Table of Authorities

Citations to Opinions Below

Jurisdiction

Constitutional and Statutory

Provisions Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

Appendix A

Opinion of the Court of Appeals

for the Federal Circuit

Appendix B

Opinion or The Merit Systems

Protection Board

Appendix C

Initial Decision of the Pre-

siding Official

Appendix D

Judgment of the Court of

Appeals for the Federal Circuit

Appendix E

Order on Rehearing

Page

S51

_ |

—

Table of Authorities

CASES Page

Ailes v. Department of

Transportation,

Docket No. NY075281F0842,

17 M.S.P.R. 114 (MSPB 1983) 10, ll,

Benson v. Department of

Transportation

Docket No. PHO75281F1021,

19 M.S.P.R. 596 (MSPB 1984) 10, 14,

United Federation of Postal

Clerks v. Blount, 325 F. Supp

879 (D.D.C. 1971), aff'd 404

U.S. 802 (1972) 8,

Carpenter v. Department of

Transportation Docket No.

NYO075281F1432, 17 M.S.P.R.

84 (MSPB 1983) 9, 14,

Chisolm v. Defense Logistics

Agency, 656 F.2d 42

(3d Cir. 1981)

Coleman v. Department of

Transportation Docket No.

NYO75281F0482 ADD, 21

M.S.P.R. 596 (MSPB 1984) 9, 14, 15,

Greene v. Lindsey, 456

U.S. 444 (1982) 7, 8,

Miner v. Federal Communi-

cations Commission, 663

F.2d 152 (D.C. Cir. 1980)

Mullane v. Central Hanover

Bank & Trust Co., 339

U.S. 306 (1950) 7, 8,

Table of Authorities

CASES Page

Schapansky v. Department of

Transportation, 735 F.2d

477 (Fed. Cir. 1984) cert.

denied, 105 S. Ct. 432 (1984)

8, 12, 13, 16

Teamsters Local Union 769

v. NLRB 532 F.2d 1385

(B.C. Cie. 2976) 17

Constitutional Provision

U.S. Const. Amend V 2

Statutes and Regulations

5 U.S.C. § 7311 3

5 U.S.C. § 7703(c) 3

SUPREME COURT OF THE UNITED STATES

October Term, 1985

No.

WILLIE J. HODGES,

Petitioner,

-against-

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

CITATIONS TO OPINIONS BELOW

The opinion of the Court of Appeals

for the Federal Circuit is unreported. It

is printed in Appendix A, infra, pl9. The

opinion of the Merit Systems Protection

Board is unofficially reported in 16

M.S.P.R.? 301 (1983) under the title

l. M.S.P.R. is the Merit Systems Protection Re-

porter published by West Publishing Co.

Backes et al. v. Department of Transpor-

tation” and is printed in Appendix B,

infra, p.21. The initial decision of the

presiding official is unreported and is

printed in Appendix C, infra p.25.

JURISDICTION

The judgment of the Cc .rt of Appeals

for the Federal Circuit was entered on

July 24, 1985. The order denying the pe-

tition for rehearing was entered on

August 21, 1985. The jurisdiction of

this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend V

No person shall be ... deprived of

2. Petitioner was one of 23 controllers whose

cases were consolidated before the presiding

official. However, only petitioner and one other

controller had been on approved annual leave.

All of the controllers in the consolidated case

were represented by a colleague who was not an

attorney.

life, liberty, or property, without due

process of law...

5 U.S.C. § 7311

An individual may not accept or hold

a position in the Government of the

United States ... if he-

(3) participates in a strike, or

asserts the right to strike, against the

Government of the Unites States ...

5 U.S.C. § 7703(c)

States Court of Appeals for the Federal

Circuit, the Court shall review the record

and hold unlawful and set aside any agency

action, findings, or conclusions found to

be-

(1) arbitrary, capricious, an

abuse of discretion, or otherwise not in

accordance with law;

(3) unsupported by substantial

evidence;

STATEMENT OF THE CASE

Petitioner was an air traffic con-

troller employed for 1l years at the Fed-

eral Aviation Administration (the "“agen-

cy") at its New York TRACON? facility.

A nation-wide strike of all traffic con-

trollers commenced on August 3, 1981 and

petitioner was discharged for striking

and being absent without leave on August

6, 1981. However, petitioner had been on

approved annual leave commencing July 30,

1981 and was not scheduled to return to

work until August 13, 1981.

Petitioner was unaware that he was

required to report to work during his

approved annual leave. Although a manda-

tory briefing occurred on June 15, 1981,

3. '"TRACON" is an acronym for traffic control.

in which the controllers were advised of

the illegality of striking against the

United States, the briefing, which was

reduced to writing, contained no refer-

ence to cancellation of leaves in the

event of a strike. Similarly, a telegram

which was sent to all controllers warned

the employees of the illegality of parti-

cipating in a strike and that "unauthori-

zed absence when scheduled or directed to

report for duty" indicates strike par-

ticipation. Unlike some controllers on

leave who were personally contacted by

their supervisors, petitioner received no

telephone calls or other notification that

his leave was cancelled. Nor was there

any evidence that petitioner walked a pic-

ket line or engaged in any other strike

activity.

To support petitioner's discharge, the

“gency relied entirely upon a notice that

was allegedly placed ina "read and ini-

tial binder" on June 16, 1981, six weeks

before his leave commenced. The notice

was not introduced at the neaetie and

there was no evidence that petitioner ei-

ther saw or initialed it, or how long the

notice remained in the binder. The Merit

Systems Protection Board ("MSPB") found in

several other cases that the notices had

been continually torn out of the binder.

A second notice was issued on July 3l,

but the agency did not rely on that notice

Since petitioner's leave had commenced

prior to that date.

At least 20 controllers were not dis-

charged by the agency for striking, be-

cause they were on approved annual leave.

Of those who were discharged, a signifi-

cant number were reinstated by presiding

officials or the MSPB.

Despite a finding that petitioner was

on approved leave, the presiding official

upheld his discharge on the ground that

he was "on notice that annual leave would

be cancelled in the event of the strike."

This finding was based entirely on the

facility chief's testimony that he had

been “assured by his deputies" that the

notices were placed in the binders. The

MSPB denied the petition for review.

Jurisdiction of the Court of Appeais

for the Federal Circuit was invoked pur-

Suant to 28 U.S.C. § 1295(a) (9). The

court affirmed the decision of the MSPB

that petitioner "was not on annual leave

on the basis of the opinion of the pre-

siding official of the Board."

REASONS FOR GRANTING THE WRIT

1. The decision of the Court of

Appeals for the Federal Circuit is in con-

flict with this Court's decisions in Mul-

lane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950) and Greene v. Lindsey,

456 U.S. 444 (1982). It is also in con-

flict with the decision of the United

States District Court for the District

of Columbia in United Federation of Postal

Clerks v. Blount 325 F. Supp. 879 (D.D.C.

1971), aff'd. 404 U.S. 802 (1972) and the

Federal Circuit's own decision in Schap-

ansky v. Department of Transportation 735

F.2d 477 (Fed. Cir. 1984), cert. denied

105 S.Ct. 432 (1984).

(a) In Mullane v. Central Hanover

Bank & Trust Company, supra this Court

stated that “an elementary and fundamental

requirement of due process in any procee-

ding which is to be accorded finality is

notice reasonably calculated, under all

the circumstances, to apprise interested

parties of the pendency of the action ...

339 U.S. at 314. Citing Mullane frequent-

ly, this Court in Greene v. Lindsey,

supra, held that notices posted on the

doors of tenants' apartments which were

"not infrequently" removed by others,

did not “satisfy minimum standards of

Gue process." 456 U.S. at 453. There-

fore, this Court concluded, the failure

to afford the tenants adequate notice of

proceedings before issuing a final order

of eviction was a deprivation of property

with due process of law.

The MSPB found, in other decisions

involving controllers who were discharged

from the New York TRACON facility, that

the notices of leave cancellation placed

in the read and initial binder six weeks

before the strike were insufficient, ab-

sent other evidence, to support a prima

facie case of strike participation for

employees who were on approved annual

leave. Carpenter v. Department of Trans-

portation, Docket No. NY075281F1432, 17

M.S.P.R. 84 (MSPB 1983); Coleman v. De-

partment of Transportation, Docket No.

NY075281F0482ADD, 21 M.S.P.R. 596 (MSPB

1984); Ailes v. Department of Transporta-

‘tion, Docket No. NY075281F0842, 17 M.S.P.R.

114 (MSPB 1983). In the New York cases,

as well as Benson v. Department of Trans-

portation, Docket No. PHO75281F1021, 19

M.S.P.R. 596 (MSPB 1984), which arose out

of the Pittsburgh TRACON, the MSPB noted

that the notices were constantly torn out

of the read and initial binders. But even

where two controllers had actually read

and initialled the notice, the MSPB found

that "the agency's attempt to cancel the

leave of appellants ... solely by means of

the June ... memorandum constitutes an in-

sufficient communication of the cancella-

tion and was therefore ineffective."

Benson, supra, at p.3.

The MSPB reasoned that the June 16

notice was too remote from the actual e-

vent of the strike to constitute adequate

notice of cancellation of approved annual

leave, particularly in view of the fact

that the agency issued a second notice,

three days before the strike, but after

the controllers had left on their vaca-

tions. As noted in Ailes, supra, at p.3,

fn. 4 of the decision, “the fact that the

agency issued the order of July 31 tends

to weaken its argument that it depended

on the June 16 order to establish cancel-

lation of annual leave at the time of the

strike in August."

Since there was no evidence that

petitioner had seen or initialled the

first notice, and since he was al-

ready on leave when the second notice was

issued, the notice of leave cancellation

which was relied upon by the agency to

cancel petitioner's leave and is the sole

basis for the conclusion that he partici-

pated in the strike, did not satisfy the

minimum standards of due process required

by the Constitution and Mullane and Greene

cases, supra, because it failed to afford

petitioner adequate notice that his leave

was cancelled. Petitioner's discharge,

based entirely upon the notice, was thus

a deprivation of property without due

process of law.

(b) In United Federation of Pos-

tal Clerks v. Blount, supra, the district

court, in a decision affirmed by this

Court, held that “only an actual refusal

in concert with others to provide ser-

vices" is forbidden by 5 U.S.C. § 7311(3).

325 F.Supp at 884. In Schapansky v. De-

partment of Transportation, supra the

Federal Circuit Court upheld the MSPB's

view that such an actual refusal to pro-

vide services may be shown by an employ-

ee's unauthorized absence during a wide-

spread strike of general knowledge, even

if there is no evidence of the employee's

actual participation in the strike.

Since the petitioner was on authori-

zed, approved annual leave during the

strike, and such leave was not effec-

tively cancelled by the agency, the

Gecision below conflicts with the Court's

own decision in Schapansky which requires

that, in order to find strike participa-

tion based on absence alone, an employ-

ee's absence must be unauthorized.

2. Another important question of law

raised in this case is whether a federal

agency, acting in a quasi-judicial capa-

city, may make inconsistent decisions

involving persons similarly situated or

whether such an agency is required to

apply the same standard of conduct to all

persons involved in a given set of cir-

cumstances.

(a) The Federal Aviation Adminis-

tration was inconsistent in its treatment

of petitioner. The record shows that at

least 20 employees were not discharged by

the agency because those employees were

On approved annual leave at the time of

the strike. This is so even though it

was agency-wide policy to place a notice

in the "read and initial binder" cancel-

ling annual leave in the event of a

strike. The agency thus implicitly re-

cognized that such notice was insufficient

to form a basis for finding strike par-

ticipation without evidence of personal

notice or actual participation.

(b) The MSPB acted arbitrarily

and capriciously, made a decision unsup-

ported by substantial evidence and abused

its discretion when it declined to review

that part of the initial decision relating

to petitioner and sustained petitioner's

removal by the agency. In at least four

other decisions, three of which arose out

of the same TRACON facility as peti-

tioner's, the MSPB made the opposite de-

cision on precisely the same facts as

were present in petitioner's case. Car-

penter, Benson, Coleman and Ailes, supra. In

Carpenter the MSPB stated, at pp. 3-5:

...-(T]he agency was unable to pre-

sent any evidence that appellant had

actually read the memorandum... [Wle

find that, because the memorandum

was issued more than a month before

the commencement of appellant's

scheduled vacation, it would not,

absent other evidence, be sufficient

to cancel appellant's previously

approved annual leave.

Thus, we find that there was no

evidence of unauthorized absence

by appellant during the strike

period and that the presiding offi-

cial erred in finding that the

agency had established a prima facie

cac2 of appellant's strike partici-

pation under Schapansky ... Cf.

McPartland v. Department of Trans-

Ortation ... [13 MSPB 155, 156

1583) (wherein the agency presented

documentary and testimonial evidence

that the appellant had been noti-

fied, both in writing and in person,

that his annual leave had been can-

celled).

Similarly, in Coleman the Board stated,

at 12,:

[T)he agency completely failed to

meet its burden to show that notice

of the cancellation of that leave

had been effectively communicated

to them. The [second] leave can-

cellation notice was not published

until after the appellants had begun

their previously approved annual

leave ... and the agency made nc

showing of subsequent communication

of leave cancellation to the appel-

lants ... While we do not ascribe

bad faith or ill will to the agency,

and have previously noted the extreme

conditions under which the adverse

actions were processed, we conclude

that the agency should have realized

that it had insufficient evidence to

Sustain its charges in this case, and

should have decided against removal.

In Benson, supra, the MSPB concluded

that the agency had “failed to show that

appellants ... previously authorized

annual leave was properly cancelled ...

and has therefore failed to establish a

prima facie case of strike participation"

under Schapansky. Benson, supra at 3.

"Elemental tenets of administrative

law" require that “agencies apply the

4. Coleman was a consolidated appeal involving

only the issue of attorney fees. The re-

gional office had sustained the appeals of

two controllers from New York TRACON on the

ground of insufficient communication of

leave cancellation. Two weeks later, peti-

tioner's appeal was denied by the same

regional office on the ground that the same

notice was sufficient.

the same basic standard of conduct to all

parties appearing before them". Miner v.

Federal Communications Commission, 663 F.

2d 152, 157 (D.C. Cir. 1980). Teamsters

Local Union 769 v. NLRB, 532 F.2d 1385,

1392 D.C. Cir. (1976). When an adminis-

trative agency acts as a quasi-judicial

body it is subject to the requirement

that it not act arbitrarily or caprici-

ously and has an obligation to render

consistent opinions. Chisolm v. Defense

Logistics Agen:y 656 F.2d 42,47? (3rd Cir.

1981).

It was arbitrary and capricious and

violative of basic principles of admin-

istrative law for the MSPB to find that

petitioner's leave was cancelled by the

same notice which it found insufficient

to cancel the leaves of other control-

lers.

CONCLUS ION

For the foregoing reasons, this pe-

tition for a writ of certiorari should be

granted.

Respectfully submitted,

Joan Stern Kiok

Counsel for Petitioner

32 Broadway

New York, New York

10004

(212) 635-0700

Dateds New York, New York

November, 1985

APPENDIX

Appendix A

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

WILLIAM J. HODGES,

Petitioner,

Vv.

DEPARTMENT OF TRANSPORTATION, FAA,

Respondent.

Appeal No. 85-1005A

MSPB No. NY075281F0895

DECIDED: July 24, 1985

Before FRIEDMAN, Circuit Judge, MILLER,

Senior Circuit Judge, and NIES, Circuit

Judge.

PER CURIAM.

DECISION

The decision of the Merit Systems

Protection Board (Board) affirming the

removal of the petitioner from his posi-

tion as an air traffic controller for

participating in the 1981 illegal air

traffic controllers' strike is affirmed.

Appendix A

OPINION

The sols question is whether the

petitioner had been on annual leave on

the day on which he was found to have

participated in the strike. We affirm

the decision of the Board that he was not

On annual leave on the basis of the

opinion of the presiding official of the

Board.

Appendix B

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM E. BACKES, ET AL.

Vv.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION OF ADMINISTRATION

eee ee ee”

DOCKET NUMBER

NY075281F0846

OPINION AND ORDER

The agency removed the appellants

from their positions of Air Traffic Con-

trol Specialists at its air traffic con-

trol facility in Westbury, New York. The

agency based the removal actions on

charges of (1) participating in a strike

against the United States Government in

violation of 5 U.S.C. § 7311 and 18 U.S.C.

§ 1918, and (2) unauthorized absence

(AWOL) .

The appellants have now petitioned

the Board for review of the presiding

Appendix B

official's initial decision. Upon con-

sideration of the appellant's petition,

we find that the legal issues raised have

been raised for the first time in the

petition for review, addressed by the

presiding official, or resolved by the

Board in other related cases. The pre-

siding official's findings as to those

legal issues are essentially consistent

with ours, and any inconsistency in the

presiding official's determination on

those issues would not affect the out-

come of this appeal. In addition, to

the extent that the arguments made in

the appellants' petition relate to the

presiding official's factual determina-

tions, we find that the appellants have

?. The Board has resolved the issues raised in

the petition for review by the appellants in the

following cases: Ketchem v. Department of

Transportation, MSPB Docket Number DA075281F0713

at 4-19 (May 28, 1982) (official notice of the

existence of an unlawful strike) motion ‘or

clarification denied (November 23, 1982);

Appendix B

not demonstrated any such factual error

by the presiding official, based on speci-

fic references to the record, sufficient

to warrant the Board's full raview of the

record. See Weaver v. Department of the

Navy, 2 MSPB 297, 299 (1980).

(fm. cont.) Campbell v. Department of Transporta-

tion, MSPB Docket Number DE0O75281F0674 at 7-8

(April 25, 1983) (period of participation in the

strike sufficient to support the charges);

Schapansky v. Department of Trans ortation, MSPB

Docket Number DAO075281F1130 at 6 n.2 and 10-11

(October 28, 1982) (prima facie case of strike

participation and reasonableness of the removal

penalty); Desiderio v. Department of the Navy 4

MSPB 171 (1980) (AWOL alone as cause for removal);

Schapansky, supra, at 7-8 (invocation of 5 U.S.C.

Section 7513(b)(1) to shorten the notice period);

Karapinka v. Department of Energy, 6 MSPB 114,

115-16 (1981) (reversible procedural error by a

presiding official); Anderson v. Department of

Transportation, MSPB Docket Number SL075281F0347

at 8-13 (April 25, 1983) ("command influence");

Baracco v. Department of Transportation, MSPB

Docket Number DCO75281F0895 at 17 (April 25, 1983)

(agency's failure to afford employee not less

than 7 days to respond to written notice of remov-

al does not, of itself, warrant reversal);

Douglas v. Veterans Administration, 5 MSPB 313,

331-33 (1981) (agency's imposition of a removal

penalty on an air traffic controller cannot be

deemed clearly excessive or disproportionate to a

sustained charge of striking against the Federal

Government despite the many years of government

service and flawless employment record);

Appendix B

August 19, 1983 s/

Robert E. Taylor

Secretary

Washington, D.C.

(fn. cont.) Book v. U.S. Postal Service, 6 MSPB

322 (1981), (adverse inference may be drawn from

refusal to testify), aff'd 675 F.2d 158 (8th Cir.

1982); Baracco, supra, (appellant bears the bur-

den of proving harm as to all alleged procedural

errors).

Appendix C

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NEW YORK REGIONAL OFFICE

William E. Backes et al. 1/ )

)

Vv. )

)

Federal Aviation Administration )

CASE NO.

NYO75281F0846

INITIAL DECISION

By timely petitions, the appellants

whose names are listed in the appendix to

this decision appealed their removals

from the Federal Aviation Administration

(agency).

When removed, the appellants were in

the competitive service and were not ser-

1/ This decision concerns the appeals of 23 former

air traffic controllers represented by Donald

Bodine. These cases have been consolidated by the

presiding official on her own motion because each

appellant designated the same representative; the

agency designated one representative to argue all

of the cases; the only witness called upon to tes-

tify gave testimony applicable to each of the ap-

pellants, and; the issues are all similar if not

identical. Moreover consolidation of the cases

was not shown to adversely affect the interests of

any of the parties, and it allowed for expeditious

processing of the cases. 5 C.F.R. 1201.36 (1982).

Appendix C

ving trial or probationary periods. They

were therefore entitled to appeal their

removals to the Board. 5 U.S.C. 7511(a)

(1); 7512(1); 7701 (1978).

Each of the appellants was an Air Tra-

ffic Controller who was charged by the

agency with participating in a strike

called by the Professional Air Traffic

Controllers' Organization (PATCO) and for

being Absent Without Official Leave

(AWOL). The dates for which they were all

charged fall within the dates of August 5,

1981 beginning at 3:00 p.m., and August 8,

1981. After affording each appellant a

period of seven days in which to respond

to the proposal, each of the appellants

was removed.

The burden of proof falls upon the

agency. It must prove each element of its

case by preponderant evidence. 5 U.S.C.

7701 (1978); 5 C.F.R. 1201.56 (1982); In

re Van Sciver, 1 MSPB 94 (1980). In pro-

Appendix C

ving its case, the agency may rely on

facts officially noticed. 5 C.F.R. 1201.

66 (1982). Official notice is taken of

the facts that "...an unlawful strike of

air traffic controllers commenced on Aug-

ust 3, 1981, and was still in progress on

August 6, 1981." Ketchem v. Department

of Transporation, MSPB Docket No. DA07528

1F013 (1982).

Mr. Charles E. Stafford, Chief of New

York TRACON, testified-on behalf of the

agency. He was the Facility Chief over

each of the appellants. Chief Stafford

testified that the agency's mission is to

provide air traffic services to 30 air-

ports in the New York Metropolitan area.

(Tr. 7). 2/ The controllers separated

the arrivals and departures of aircraft

using the 30 airports. (TR. 13-14).

Prior to the commencement of the strike

the facility operated in three shifts.

2/ “Tr _™" refers to pages of the Hearing Trans-

¢ript. .

Appendix C

There was a day shift from 7:00 a.m.

through 3:00 p.m., a swing shift from

3:00 p.m. through 11:00 p.m., and a mid-

night shift from 11:00 p.m. through 7:00

a.m. The controllers were aware of their

individual schedules from a posting of

their shifts which was put up 21 days in

advance of their shifts. The schedule

was then made available in each of the

three sectors of the facility. (Tr. 8).

Chief Stafford testified that there

were rumors of a strike in June of 1981.

When June passed, a new rumor circulated

that the strike would take place in Aug-

ust. Between June 3, and June 15, 1981,

an Assistant Chief gathered the appell-

ants in a conference room and read to

them the contents of 18 U.S.C. 1918.

Each was given a copy of the provision as

well. In essence, this provision states

that anyone who participates in a strike

against the government may not accept or

Appendix C

hold a position in the government, and

shall be fined not more than $1,000 or

imprisoned not more than one year and a

day or both. (Tr. 19-22). As further

preventive actions. Chief Stafford tes-

tified that on June 16 and again on July

31, 1981 notices were posted which can-

celled annual leave in the event of a

strike. These notices indicated that the

cancellation of leave would be activated

on the commencement of a strike, and that

the notices were effective until further

notice. The notices were put in a read

and initial binder for each of the three

sectors. Chief Stafford explained that

each air traffic controller was required

to readthe binder prior to assuming an 7

operational position; notices stay in the

binders for a couple of months. (Tr. 29-

30). On cross-examination Chief Stafford

testified that he did not know specifi-

cally who posted the notices, but he was

Appendix C

assured by his Deputy Chief that posting

had been accomplished. (Tr. 5l).

On August 3, Chief Stafford testified,

for the day shift only 2 of the expected

44 controllers reported for work. On the

following shift 1 or 2 out of the same

expected number reported; no one showed

up for the midnight shift. Moreover,

picketers appeared outside of the main

gate of the facility. They varied in -

number from 4 to 20 persons who walked

back and forth in front of the main gate.

They did move out of the way to allow

people to enter or leave the facility.

Some of the picketers carried signs which

read "PATCO LOCAL 160 ON STRIKE". Accor-

ding to Chief Stafford, that was the

PATCO organizational unit at the TRACON

facility. Through contact with the other

facilities in the region and with other

regions, Chief Stafford learned that a

nationwide strike was in effect. Picke-

Appendix C

ting, at least in the Eastern Region,

continued to late September and possibly

into early October 1981. (Tr. 11-12).

As a result of the strike, stated

Chief Stafford, the facility could not

provide the service that they were uni-

quely able to provide to their users.

This inability caused great inconvenience

to the public. The impact of the strike,

which Chief Stafford characterized as

substantial, is still being felt at the

facility. (Tr. 13).

According to Chief Stafford, each of

the appellants failed to report for his/

her regularly scheduled shift after 11:30

a.m. On August 5, 1981. For this reason,

he proposed their removals. The proposal

letter in each case was sent by regular

and by certified mail. These letters

stated that the appellants had an oppor-

tunity to reply to the notice and could

do so orally, in writing, or both orally

Appendix C

and in writing. According to Chief Staf-

ford, none of the appellants made an oral

reply, and none called to explain his

absence. (Tr. 23, 37). All of the ap-

pellants made a written response. With

the exception of one, they were what

Chief Stafford called the "standard PATCO

response". He cha’ :terized the response

in this manner, because he had received

approximately 170 responses which were

identical. Two of the responses were re-

ceived after the seven days in which to

respond had expired. Chief Stafford tes-

tified that all of ine responses, includ-

ing those received late, were read and

considered, and each failed to provide a

basis for excusing the appellant's ab-

sence. He therefore decided to sustain

the proposed removal and notified each

appellant of his termination by certified

and regular mail. (Tr. 19-22).

Prior to resting its case, the agency

Appendix C

provided Mr. Stafford with the agency

file for each of the 23 appellants. Mr.

Stafford reviewed each file, and testi-

fied concerning each individual appel-

lant's work schedule for the week of Aug-

ust 3, the type of written response sub-

mitted in reply to the proposal letter,

whether or not the appellant reported for

work on his given schedule, and why the

individual appellant was removed. In

each instance, Mr. Stafford testified

that the appellant was removed for parti-

cipating in an illegal strike against the

government and for being AWOL during the

midst of an illegal strike.

Chief Stafford was extensively ques-

tioned under cross-examination. He was

shown a copy of the agency's handbook and

the provision concerning the delegation

of authority to decide disciplinary ac-

tions. Although the handbook does not

list facility chiefs among those persons

Appendix C

so authorized, Chief Stafford testified

that the authority was redelegated to him

by the Regional Director who is vested

with that authority. This redelegation

preceded the strike. (Tr. 44-45). When

asked whether or not President Reagan de-

cided to remove the appellants prior to

the letters of proposed removal being

sent, Chief Stafford testified that he,

himself, made the decision to remove the

appellants, and his decision was not made

prior to his sending the proposed removal

letters to the appellants. (Tr. 47).

Chief Stafford conceded that the normal

period in which to reply to a proposal of

disciplinary action is 30 days. However,

he justified his use of seven days in

which to respond on the provision in the

law that states that a shortened notice

period is appropriate when the agency

official has reason to believe that a

crime has been committed. He thus felt

—

Appendix C

justified in shortening the notice period

even though he was unaware and is cur-

rently unaware of any pending criminal

actions against any of the appellants.

(Tr. 48). Moreover Chief Stafford con-

ceded that the "standard PATCO response"

also included a request for an extension

of time in which to reply and a request

made under the Freedom of Information Act

for greater information. Chief Stafford

testified that he did not feel obligated

to respond to the request, because all of

the information that he relied upon was

made available to the appellant in the

agency file, and none of the information

requested under the Freedom of Information

Act had been relied upon by him in making

his decision. (Tr. 53).

None of the appellants took the

stand. However, their representative

raised defenses on their behalf. In the

case of Mr. Charles Henderson, it is al-

Appendix C

leged that he was entitled to sick leave.

The appellants representative submitted

medical documentation purporting to show

that the appellant was incapacitated for

duty. The medical documentation submit-

ted is on the stationery of Robert B.

Bass, Jr., and is dated August 28, 1982.

This document states that "As a result of

roller skating fall July 29, 1981 the

above was incapacitated for employment

from July 30, 1981 far treatment .....

sprain right ankle. Treatment consisted

of soaks, ankle support, reduced weight

hearing-pain medication." The appel-

lant's name appears on the top of the

form and it is signed by R. Bass Jr.,

D.O. (Appellant Exhibit 2). Other than

pointing out the fact that Messrs. Pratte

and Hodges were scheduled for annual

leave, nothing more specific was said

about their cases.

In general and on behalf of each of

Appendix C

the appellants, several legal arguments

were raised. These defenses are affir-

mative defenses which will be considered

separately after a determination has been

made on whether the agency has met its

prima facie case.

The Board in the case of Schapansky

v. Department of Transportation, MSPB

Docket No. DAO75281F1130. (1982), held that

the agency must prove that the strike was

a matter of generai knowledge, and that

an employee was AWOL, in order to make out

a prima facie case. 3/ Part of the agen-

cy's burden in meeting this test has al-

ready been proven by virtue of the fact

that official notice has been taken that

a strike occurred at least through August

6, 1981. On the dates officially noted as

well as for subsequent dates through

3/ Schapansky v. Department of Transportation,

MSPB Docket No. DAO75281F1130 (1982), page 6

footnote 2.

Appendix C

August 8, Mr. Stafford testified, without

contradiction, that the strike continued.

His testimony was that picketers contin-

ued to be present August 7 or 8, and that

the level of absenteeism was similar.

Moreover he testified that thcse manifes-

tations of a strike were noted not only

at his facility, but were noted region-

wide. Because he testified that the im-

pact of the strike continues to date, it

must be found that there was an impact

caused by the absenteeism at least on

August 7 and August 8. Based on Mr.

Stafford's unrefuted testimony, and the

official notice taken, I find that the

agency has proven this aspect of its

prima facie case.

Mr. Stafford also provided credible

testimony as to each of the appellants'

scheduling during the week of August 3,

1981, and the fact that all annual leave

was cancelled during that period. Al-

. aaa

Appendix C

though Chief Stafford did not personally

place the notices cancelling leave in the

read and initial binder, he stated that

he had been assured by his deputies that

they were so placed. He further testified

that it was the responsibility and habit

of ecstl aie traffic controller to read

the binder prior to commencing opera-

tions. Under the circumstances, and in

the absence of contradictory evidence, I

have no reason to doubt the Chief's tes-

timony in this regard. Accordingly, I

find that the agency has shown that the

appellants were AWOL, and that annual

leave was cancelled, as averred by the

agency.

Under Schapansky, supra, in order to

refute the agency's prima facie case, the

appellants would have to demonstrate ig-

norance of the strike and/or the fact that

their absence was due to some factor other

than intentional participation in the

Appendix C

strike. As stated none of the appel-

lants took the stand. tn view of the

notoriety attending the strike, the ex-

tensive media coverage of the strike, and

the fact that it struck the very liveli-

hood of each of the appellants charged, I

find it unlikely if not improbable that

any was unaware that a strike was in pro-

gress. While two of the appellants,

Pratte and Hodges, were initially granted

approved leave, the only evidence before

me indicates that the appellants were on

notice that annual leave would be cancel-

led in the event of a strike. Similarly

there is no evidence before me that Mr.

Henderson was granted approved sick leave

or entitled to sick leave on the dates

that he was charged with being AWOL and

participating in a strike. While the

Board may examine medical evidence sub-

mitted for the first time at hearing 4/,

the medical certification submitted at

Appendix C

hearing, is insufficient to establish

that the appellant was incapacitated for

duty since the note does not indicate

that the appellant was unable to work

after July 30, 1981.

Because the agency met its initial

burden in establishing a prima facie

case, and the credible evidence that was

presented has not been refuted, I find

that the agency has established by pre-

ponderant evidence that the appellants

were striking and AWOL on the dates char-

ged.

In addition to proving that the ap-

pellants committed the acts as charged,

the agency must also show that there is

a connection between their conduct and

the agency's ability to carry out its

mission. Young v. Hampton, 568 F.2d

1253, 1258 (7th Cir. 1978). Mr. Staf-

4/ Zeiss v. Veterans Administration, MSPB Docket

No. NY0O75209017 (1981), at page 3.

Appendix C

ford, the Facility Chief testified that

the strike had a severe impact on the

overall air traffic system due to New

York's importance in managing air traffic

for 30 metropolitan airports. During the

strike, testified Mr. Stafford, the fa-

cility's efficiency was substantially re-

duced. I find that Mr. Stafford's unre-

butted testimony establishes by a prepon-

derance of the evidence that the appel-

lant's conduct had a detrimental effect on

the agency and its ability to perform its

assigned mission. I can think of nothing

more crucial tc an agency's mission than

having a dependable workforce with which

to perform its services.

Notwithstanding the finding that the

agency has proven its case by a prepon-

derance of the evidence, an agency action

may not be sustained if the appellant:

(A) shows harmful error in the app-

lication of the agency's procedures in

—)

Appendix C

arriving at such decision;

(B) shows that the decision was based

On any prohibited personnel practice des-

cribed in section 2302(b) of this title;

in accordance with the law. 5 U.S.C. 7701

ses upon which the appellants bear the

burden of proof. 5 C.F.R. 1201.56(2) (b)

(1982). As affirmative defenses the ap-

pellants made arguments centering upon the

following concepts, double deopardy (Tr.

48), rights to a speedy trial (Tr. 56),

constructive discharge (Tr. 82) and, that

5 U.S.C. 7311 is a national security

Statute 5/ (Tr. 59). Two other arguments

5/ The appellants argue that the agency's handbook

on adverse actions excludes matters taken for na-

tional security reasons from being appealable to

the Board. The section specifically states, at

page J, that matters excluded from coverage of the

order are "actions taken for security reasons un-

der 5 U.S.C. 7532, or any other similar statute."

(Appellant Exhibit 1.)

Appendix C

made are that the removal of the appel-

lants is outside of the agency's guide-

lines on penalties for specific offenses,

and that in actuality it was President

Reagan who fired the air traffic control-

lers.

The first group of defenses, while

asserted, were not supported by any evi-

dence. Moreover double jeopardy, and

the right to a speedy trial, are criminal

law concepts with no applicability to ad-

ministrative proceedings. De Joy v.

Health and Human Services, 4 MSPB 96, 97

(1980). While the appellant asserts that

7533 is a national security statute, there

is no evidence to warrant that conclusion

or to show that it is similar to 5 U.S.C.

7532, which is a national security sta-

tute. Moreover, assuming that 5 U.S.C.

7311 was a national security statute, the

agency, any agency could not by its own

order divest the Board from its jurisdic-

Appendix C

tion. 5 U.S.C. 7511 provides for the

Board its definition of employee. 5 U.S.

C. 7512 states that an employee may ap-

peal a removal to the Board. The only

exception to this would be a removal un-

der section 7532, which is consistent

with the agency's order. Therefore I

find the appellants" argument that this

action is not appealable to the Board to

be unpersuasive. ;

It is argued that striking is an un-

fair labor practice under the Civil Ser-

vice Reform Act of 1978; for striking,

PATCO was decertified and that is the

only remedy allowed for striking. The

appellants also claim that because the

organization and its members are synony-

mous, removal of the appellants is in-

appropriate. This is again the double

jeopardy argument that was previously

made and disposed of in part. While

striking is an unfair labor practice,

Appendix C

unfair labor practices are not chargeable

against employees. 5 U.S.C. 7116 (1978).

The Civil Service Reform Act defines a

person to be either an individual or a

labor organization (5 U.S.C. 7103 (a) (1)

(1978), however, it also gives separate

definitions to employees and labor or-

ganizations. They are not synonymous.

These appellants were charged with and

removed for striking in their capacities

as employees and not based upon their ca-

pacities of individuals who comprise a

labor organization.

The contention that the penalty im-

posed by the agency falls outside the

range of appropriate penalties is likewise

unpersuasive. That portion of the chart

relied upon the appellant does not show a

suggested penalty for AWOL when that AWOL

is coupled with participation in a strike

or occurs during a strike. Therefore I

am unable to conclude the evidence before

Appendix C

me that the agency acted inappropriately

by removing the appellants.

As to the last two contentions, they also

have not been proven. Mr. Stafford cred-

ibly testified that he in fact made the

decision to remove the appellants. While

it could be found that President Reagan

established policy that air traffic con-

trollers would be removed for striking,

there is no evidence he participated in

the decision-making to remove any indivi-

dual air traffic controller. Finally, I

find that the appellants were not con-

structively discharged; they were actu-

ally discharged. A constructive discharge

would occur where employees are not al-

lowed to return to work by their employer,

and that is the cause of their not work-

ing. In this case the appellants volun-

tarily absented themselves from work.

That absence during the strike is the

cause of their discharge. In view of the

Appendix C

evidence before me I am unable to con-

clude that the appellants have establish-

ed a prima facie case on any of the af-.

firmative defenses raised.

The last issue to be resolved is

whether or not the agency's choice of

penalty, i.e., its removal of the appel-

lants is clearly excessive or dispropor-

tionate to the charges of being AWOL and

striking against the agency. Douglas v.

Veterans Administration, MSPB Docket No.

ATO075299006 (1981). In removing the ap-

pellants the agency relied upon 5 U.S.C.

7311 which can be read to require the re-

moval of anyone who strikes against the

government. Due to the gravity of the

offenses committed by these appellants

and in view of a statute that clearly

sanctions removal in such a situation the

agency's action in removing the appel-

lants cannot be said to be unreasonable.

Schapansky, supra, at page 10. The ap-

Appendix C

pellants have failed to demonstrate or

even allege any factors that would war-

rant mitigation of their removals.

Therefore I find that the agency, by re-

moving each of the 23 appellants listed

in the appendix, selected a penalty that

was not excessive, disproportionate to the

sustained charges, arbitrary, capricious,

unreasonable or .an abuse of discretion.

Therefore the agency's action in removing

each of the appellants is sustained.

For the Board:

Dated: November 15, 1982

/s/

Bonita Kirkland

Presiding Official

Appendix D

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

No. 85-1005A

WILLIAM J. HODGES, NY075281F0895,

Petitioner,

Vv.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION,

Respondent.

JUDGMENT

ON APPEAL from the Merit Systems Pro-

tection Board

This CAUSE having been heard and consid-

ered, it is

ORDERED and ADJUDGED: AFFIRMED.

DATED July 24, ENTERED BY ORDER OF

1985 THE COURT

George E. Hutchinson,

Petition for Re- Clerk

hearing, Denied, s/

August 21, 1985. Clerk

Appendix E

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

No. 85-1005A

WILLIAM J. HODGES, Petitioner

Vv.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION,

Respondent.

eee eee ee ee

ORDER

A petition for rehearing having been

filed in this case,

UPON CONSIDERATION THEREOF, it is

Ordered by the court that the petition

for rehearing be, and the same is hereby,

Denied.

FOR THE COURT:

/s/

George E. Hutchinson,

Clerk

August 21, 1985

Date

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