Opposition Brief — Hodges v. Department of Transportation, Federal Aviation Administration

Supreme Court, WS,

FILED

No. 85-867 4 JAN 81 1000

EPH F. SPANIOL, JR

WWee —BEERK

Inthe Supreme Court of the Hnited Ss le —- ae

OCTOBER TERM, 1985

WILLIE J. HODGES, PETITIONER

v.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

Davip M. COHEN

SANDRA P. SPOONER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

“BEST AVAILABLE COPY "

QUESTIONS PRESENTED

1. Whether the court of appeals correctly concluded that

substantial evidence supports the decision of the Merit

Systems Protection Board sustaining the agency’s removal

of petitioner for participating in a strike against the United

States and for being absent without leave.

2. Whether the court of appeals correctly determined

that petitioner’s removal was neither arbitrary nor

capricious.

(1)

TABLE OF CONTENTS

Page

ET Tin tne cubs ones seveceeevecvcsceues l

CO ee Ferg oe l

eee tes ehk cess a sshsacibaceesccdess l

Argument ...... VO rere eee r rere rere TT eer eee 4

eee aaa 60-0 000-06 946 04440005000 4s 7

TABLE OF AUTHORITIES

Cases:

Adams v. Department of Transportation, FAA,

735 F.2d 488, cert. denied, 84-258

SE Sa chnc a Wh ben ebb dcwsesceseecss 5

Ailes v. Department of Transportation, FAA,

ne each sense de enseeceens 7

Anderson v. Department of Transportation,

FAA, 735 F.2d 537, cert. denied, No. 84-259

Se | ME eRC ace cancneneeseteseceneces 4

Benson v. Department of Transportation, FAA,

0 ESSE POT eee ee Cera ee 6, 7

Campbell v. Department of Transportation, FA is

735 F.2d 497, cert. denied, No. 84-78

DEC Citta ah evensesacedsestecenece 4

Carpenter v. Department of Transportation,

eens 6 hw ee neectececetecess 6,7

Coleman v. Department of Transportation,

Es EE Sc ccescceccnescesenns 7

Greene v. Lindsey, 456 U.S. 444 ............5.5. 5

Mobile Oil Corp. v. FPC, 417 U.S. 283 ........ 6

(IIT)

Cases—Continued:

IV

Mullane v. Central Hanover Bank & Trust Co.,

St SBE bse deusebaseteuenneessaandaes 5

Schapansky v. Department of Transportation,

FAA, 735 F.2d 477, cert. denied, No. 84-258

POU, Ga, MU wen ccccucupcecucecceesc; 2, 4,5

United Federation of Postal Clerks v. Blount,

325 F. Supp. 879, aff'd, 404 U.S. 802 ......... 6

Universal Camera Corp. v. NLRB,

340 U.S. 474 .

Statute:

5 U.S.C. 7703(c)

Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1985.

No. 85-867

WILLIE J. HODGES, PETITIONER

. Vv.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 19-20) is

unreported. The opinions of the Merit Systems Protection

Board (Pet. App. 21-49) are also unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. 50) was

entered on July 24, 1985. Petitioner’s petition for rehearing

was denied on August 21, 1985 (Pet. App. 51). The petition

for a writ of certiorari was filed on November 18, 1985. The

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

1254(1).

STATEMENT

Petitioner challenges his removal from federal employ-

ment following the air traffic controllers’ strike in 1981. The

background of the strike and the subsequent litigation are

(1)

2

set forth in our Brief in Opposition in Campbell v.

Department cf Transportation, FAA, No. 84-78, in response

to one of a number of other petitions arising out of the

strike.' ,

1. Petitioner was removed from his position as an air

traffic controller on the grounds that he participated in a

strike against the United States and was absent without

leave during the strike. He appealed to the Merit Systems

Protection Board (MSPB or Board), where he was afforded

a hearing (consolidated with a number of other cases). The

agency established a prima facie case by demonstrating that

petitioner was absent without leave during a strike of gen-

eral knowledge.’

Petitioner contended that he was on annual leave at the

time the agency concluded he was striking. The presiding

official found, however, that petitioner’s annual leave had

been cancelled (Pet. App. 38-39). This finding was based

upon testimony of the chief of the facility at which peti-

tioner worked that a memorandum cancelling all leave in

the event of a strike was placed in a mandatory “read and

initial” binder for each sector (id. at 29). This memoran-

dum, dated June 16, 1981, provided that it was effective

until further notice (ibid.). The presiding official also

‘A copy of our response in Campbell has been sent to counsel for

petitioner.

?The standard applied requires that the agency at all times bear the

burden of persuasion with respect to strike participation; the agency

must show by a preponderance of the evidence that the employee

withheld his services in concert with others. Schapansky v. Depart-

ment of Transportation, FAA, 735 F.2d 477, 482-483 (Fed. Cir.), cert.

denied, No. 84-258 (Nov. 13, 1984). Once the agency has made a prima

facie showing by evidence of the employee's unauthorized and unex-

plained absence during a strike of general knowledge, “the burden of

going forward with evidence to rebut that showing necessarily shifts to

the employee, who is in the best position to present explanatory evi-

dence to counter that showing.” 735 F.2d def at 482. See Pet. App. 26,

37-41.

3

conciuded that petitioner had notice of the cancellation of

his leave (id. at 39-40). “While [petitioner was] initially

granted approved leave, the only evidence before me indi-

cates that [he was] on notice that annual leave would be

cancelled in the event of a strike” (id. at 40). In this regard,

petitioner's facility chief testified that each controller was

required each day to read the memoranda in the binder

before he began controlling traffic (id. at 29). Moreover,

while the agency did not present evidence that petitioner

had actually initialed the memorandum, the facility chief

testified that he had instructed that the memoranda be

distributed and that he had confirmed through conversa-

tions with his deputy that the distribution had been accomp-

lished (id. at 29-30, 39).

Notwithstanding this evidence, petitioner elected not to

testify and never denied having had notice of the leave

cancellation (Pet. App. 35). Indeed, the only response peti-

tioner made to his proposed removal was “the standard

PATCO [written] response” (id. at 32). Accordingly, the

presiding official concluded that “the agency has estab-

lished by preponderant evidence that [petitioner was] strik-

ing and AWOL” (id. at 41).

The full Board denied petitioner's petition for review

(Pet. App. 21-24). The Board found that it had already

resolved many of the issues presented, and that “{t}he pre-

siding official's findings as to those legal issues [presented to

her] are essentially consistent with ours, and any inconsis-

tency in the presiding official’s determination on those

issues would not affect the outcome of this appeal” (id. at

22; footnote omitted). The Board also found that, “to the

extent that the arguments made in the * * * petition relate

to the presiding officia!’s factual determinations, we find

that [petitioner has] not demonstrated any such factual

error by the presiding official, based on specific references

to the record, sufficient to warrant the Boare'’s full review of

the record” (id. at 22-23; citation omitted).

4

2. Petitioner then sought review in the United States

Court of Appeals for the Federal Circuit His was one of

approximately 3,500 similar petitions filed in the court of

appeals by discharged air traffic controllers. All but nine

cases were stayed pending the court's decisions in those

“lead cases.” On May 18, 1984, a five-judge pane! of the

court of appeals issued | 1 decisions sustaining the removals

of al! but one of the petitioners in the lead cases.

A number of the unsuccessful petitioners filed petitions

for writs of certiorari; all were denied. See, e.g., Schapansky

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

Cir.), cert. denied, No. 84-258 (Nov. 13, 1984); Andersom ¥

Department of Transportation, FAA, 735 F 2d 537 .®#..

Cir.), cert. denied, No. 84-259 (Nov. 13, 1984); Campbell v.

Department of Transportation, FAA, 735 F.2d 497 (Fed.

Cir.), cert. denied, No. 84-78 (Oct. 9, 1984). After this Court

denied the petitions in the lead cases, the court of appeals

lifted the stay of the other pending appeals.

In one of the first decisions issued by the court of appex!s

after the stay was lifted, the court affirmed the decision of

the Board in petitioner's case (Pet. App. 19-20). The court

noted that the “sole question” on appeal was whether peti-

tioner had been on annual leave on the day on which he was

found to have participated in the strike, and affirmed the

decision of the Board that he was not (id. at 20).

ARGUMENT

The unpublished and summary decision of the Federal

Circuit in this factbound dispute is correct, does not conflict

with the decisions of this Court or any other court of

appeals, and does not merit further review.

1. The court of appeals correctly found that substantial

evidence supports the decision of the Board that petitioner

had notice of the cancellation of his leave. The agency

presented competent evidence that a notice dated June 16,

1981, was placed in the read and initial binders and that it

5

cancelled petitioner's leave in the event of a strike. Compe-

tent evidence further established that the cancellation was,

by its terms, effective until further notice and that petitioner

was required to read the notice prior to assuming his duties

controlling aircraft. There is no evidence in the record that

the notice was ever removed fra the binder or that peti-

tioner was unaware of it.’ Ir ced, petitioner did not take

the stand to deny that he had notice of the cancellation of

his leave. It is entirely proper to infer that truthful testimony

would not have served his interests, and therefore to draw

an adverse inference from his failure to testify. Adams v.

Department of Transportation, FAA, 735 F.2d 488, 492

(Fed. Cir.), cert. denied, No. 84-258 (Nov. 13, 1984). In any

event, because the on/y evidence before the Board estab-

lished that petitioner was notified of the cancellation of his

leave, the court below was clearly correct in finding that the

Board's decision was supported by substantial evidence.‘

‘Accordingly, there is no conflict between the decision of the court of

appeals and this Court's decisions in Mullane v. Central Hanover Bank

& Trust Co., 339 U.S. 306 (1950), or Greene v. Lindsey, 456 U.S. 444

(1982). There are no facts in this case upon which one could conclude

that the leave cancellation notice was removed (frequently or otherwise)

from the binders or that the notice was not reasonably calculated to

apprise petitioner of the cancellation of his leave.

In his petition (at 7-13) and before the court of appeals, petitioner

argued that the leave cancellation notice was torn out of the binde: and

attempted to rely upon evidence contained in the records of other

appeals to the Board by other air traffic controllers in other cases. But

the Board and the court of appeals were required to render their

decisions based upon the record before them. One side cannot rely on

non-record evidence when the other side is held to the record. It is

simply untenable to contend, as petitioner does, that the court of

appeals should have reversed the decision of the Board based upon

evidence that was not in the record before the Board or the court.

*Because petitioner's leave had been effectively cancelled, his absence

was unauthorized and he is incorrect in suggesting (Pet. 12-13) that the

court of appeals’ decision in his case conflicts with its decision in

Schaparsky. Moreover, our discussion above (page 2 note 2) demon-

strates that the definition of strike applied in this case is, contrary to

6

A writ of certiorari is inappropriate where petitioner

merely challenges the court of appeals’ conclusion regard-

ing the evidentiary support for the decision below. This

Court has recognized that the courts of appeals have the

principal responsibility for determining substantial evi-

dence questions. Mobil Oil Corp. v. FPC, 417 U.S. 283,

309-310 (1974); see 5 U.S.C. 7703(c). There is no indication

in the present case that the court of appeals “ ‘misappre-

hended or grossly misapplied’ ” the substantial evidence

test. 417 U.S. at 310 (quoting Universal Camera Corp. v.

NLRB, 340 U.S. 474, 491 (1951)).

2. Petitioner is also incorrect in contending (Pet. 13-17)

that the decision of the Board was arbitrary and capricious

because he was treated differently from others who pres-

ented “precisely the same facts.” The decisions of the Board

petitioner cites are readily distinguishable.

In Carpenter v. Department of Transpcrtation, 17

M.S.P.R. 84 (1983), the Board found that the June 16

notice cancelling annual leave was not sufficient to support

the controller’s removal. The evidence before the Board was

critically different, however, since the controller testified

that he was unaware of the June 16 notice and presented

evidence that he had been incommunicado on a canoeing

and fishing expedition in the Canadian wilderness. No such

evidence was presented here.

Benson v. Department of Transportation, FAA, 19

M.S.P.R. 596 (1984), is distinguishable since the record

there contained evidence that the notice had been removed

from the mandatory reading binder. In addition, while

petitioner correctly notes (Pet. 10) that the Board in Benson

petitioner’s contention (Pet. 12), entirely consistent with United Feder-

ation of Postal Clerks v. Blount, 325 F. Supp. 879 (D.D.C.), aff'd, 404

U.S. 802 (1971).

7

found the notice ineffective to cancel the leave of two con-

trollers who had actually initialed the notice, he fails to

point out that this was because one controller was out of

town and unaware of the existence of the strike and the

other was misled by a telegram notifying him only to report

for his next assigned shift. Petitioner in this case never

alleged facts similar to those in Benson.

The remaining two cases cited by pctitioner — Coleman

v. Department of Transportation, FAA, 21 M.S.P.R. 596

(1984), and Ailes v. Department of Transportation, FAA,

17 M.S.P.R. 114 (1983) — are, like Carpenter, cases in

which the controllers denied under oath having ever seen

the notices cancelling leave. In view of this important differ-

ence in the evidence before the Board, it was not arbitrary

for it to decide those cases differently from the present one.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfuily submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

DavID M. COHEN

SANDRA P. SPOONER

Attorneys

JANUARY 1986

‘Petitioner also contends (Pet. 13-14) that the FAA, as well as the

Board, treated him differently from others similarly situated — specifi-

cally, that the FAA did not discharge other employees on approved

annuai leave. But there is no showing that for these employees the same

evidence of strike participation was available. In any event, the FAA

never recognized, “implicitly” or otherwise, that a notice in the read and

initial binder was “insufficient.”