# Petition for Writ of Certiorari — Hodges v. Department of Transportation, Federal Aviation Administration > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1082%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 475 U.S. 1011 ## Text 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; (c) The notice had been continually 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- ii 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 i8 19 21 25 50 S51 J As _ | - — , — - iv 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, 14 16 12 15 17 16 ll 17 ll 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- 2 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) (c) In any case filed in the United States Court of Appeals for the Federal Circuit, the Court shall review the record and hold unlawful and set aside any agency 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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. 17 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. 18 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 19 Appendix A UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT WILLIAM J. HODGES, Petitioner, Vv. DEPARTMENT OF TRANSPORTATION, FAA, i 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. 20 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. 21 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 22 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); 23 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); 24 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). 25 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). 26 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- 27 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. . 28 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 29 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 i 30 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- 31 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 32 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 33 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 34 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 — 35 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- 36 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 37 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. 38 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 39 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. 42 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 —) 43 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; or (C) shows that the decision was not in accordance with the law. 5 U.S.C. 7701 (c) (2) (1978). These defenses are defen- 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.) 44 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- 45 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, 46 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 47 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 48 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- 49 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 50 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 51 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1082%3A1. Public record. Not legal advice.