Petition for Writ of Certiorari — Robinson v. Department of Transportation, Federal Aviation Administration
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Supreme Court, U.S.
FIL Fy
DEC 3 1985
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October Term, 1985
THOMAS D. ROBINSON, RICHARD \V. KITTS, RICHARD
C. NEWMAN, JOHN E. NEAL and ROBERT L. KAPP,
Petitioners,
vs.
DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FEDERAL
CIRCUIT
HARRY D. SHARGEL
Attorney for Petitioners
Seventh Floor
1201 Chestnut Street
Philadelphia, Pennsylvania 19107
(215) 561-2360
3168
tz late *NJ (201) 257-6850eNY (212) 840-9494ePA (215) 563-5587
nters.ine. MA (617) 542-1114eDC (202) 783-7288eUSA (800) 5 APPEAL
LY
QUESTIONS PRESENTED
1. May petitioners’ counsel be assessed an amount under Rule
38 of the Federal Rules of Appellate Procedure without notice,
without a hearing and without a finding that the attorney acted
in bad faith?
2. May petitioners’ counsel be asessed an amount under Rule
38 of the Federal Rules of Appellate Procedure without a finding
that all issues raised by counsel were frivolous?
3. May petitioners’ counsel be assessed an amount under Rule
38 of the Federal Rules of Appellate Procedure when the court’s
finding is arbitrary, capricious and in disregard of the facts?
4. Under 5 U.S.C. § 7513 may employees be dismissed by
a person who is not authorized to dismiss them?
5. Under 5 U.S.C. § 7513 and the Fifth Amendment to the
Constitution may employees be dismissed without the notice
provided for in the statute?
6. May employees be dismissed for striking when the agency
failed to submit evidence that there was a strike at the time in
question and the evidence reflected that there was no strike at
the time?
7. May the Merit Systems Protection Board establish a rule
of evidence wherein only the evidence submitted by an employee
must be ‘‘objective’’ wherein the agency may resort to hearsay
evidence?
8. Where the Office of Personnel Management, the agency
authorized to implement 5 U.S.C. § 7513 provides by regulation
that in arriving at its decision the agency shall consider only the
reasons specified in the notice of proposed action, may the agency
dismiss the employees for a reason not specified in the notice of
proposed action?
9. Where the Office of Personnel Management, the agency
authorized to implement 5 U.S.C. § 7513, provides by regulation
that the notice of decision be delivered to the employee at or before
the time the action will be effective, is the decision of dismissal
effective if the notice is not delivered at or prior to the effective
date?
LIST OF PARTIES
The parties named in the caption and Harry D. Shargel, Esq.,
counsel for the petitioners.
TABLE OF CONTENTS
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Constitutional and Statutory Provisions, Rules and
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Reasons for Granting the Writ:
The Court of Appeals has so far departed trom the
accepted and usual course of judicial proceedings as to call
for an exercise of the Court’s power of supervision.
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10
iv
Contents
Page
I. In assessing a sum against petitioners’ counsel under
Rule 38 FRAP the Court of Appeals acted in conflict
with a decision of this Court and the decisions of other
courts of appeal and with arbitrary and capricious
disregard of the law and the facts............... 10
Il. The deciding official lacked authority to dismiss the
EG ikke ccanccwiadevecéseueiseebaeees 19
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IV. Petitioners were not on strike. ...............5. 23
V. Petitioners Kapp and Robinson were improperly
dismissed for a reason other than alleged in the notice
OG, wk cub 4a Oi 06k 005563 ck ds ce weeneweneeas 25
VI. The decisions removing petitioners Kitts and Neal
WR IE GIO, << 6 5d 0 wn cc waeedeebewe ckeues 26
VII. An improper rule of evidence was applied. ...... 27
ce Caco k ok CLANS AES M RENE CARR CRUSE ESS 28
TABLE OF CITATIONS
Cases Cited:
Adams v. Department of Transportation, 735 F. 2d 488
FE ey a Pee TT TET Sey 12, 19, 23, 24, 28
Caminetti v. United States, 242 U.S. 470 (1970) ........ 22
Contents
Page
Cleveland Board of Education v. Loudermill, 53 LW 4306
DiMasso v. Department of Transportation, FAA, 735 F. 2d
§26 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984)
secdddd cus cask eters etdake sista ee 12
Duvall v. United States, 647 F. 2d 131 (Ct. Cl. 1981).... 28
Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947)
vhs inca cca had «ene dud aN RGNte eda 19
Freeman v. Local Union No. 135, 746 F. 2d 1316 (7th Cir.
SEE ca bcaduecesadeceras dua wedeoeesse eee 10
Hockman v. American Bible Monuments Commissions, 11
eR ED oo 6.0 65.02.0440004020K0500SuE CREE 27
Horne v. Merit Systems Protection Board and Interstate
Commerce Commission, 684 F. 2d 155 ............ 25
Immigration and Naturalization Service v. Chadha, 462
'k 7. Re Peer eee: Mer Re 22
Motor Vehicle Manufacturers Association v. Farm Mutual
Automobile Insurance Co., 463 U.S. 29 (1983) ....25, 26
Mesarosh v. United States, 352 U.S. 1 (1956)........... 18
Miranda v. Southern Pacific Transportation Co., 710 F. 2d
Sa Ge ats. SE so 00.0 600.0 5:60000400045%34430008 10
Noto v. United States, 367 U.S. 290 (1961) ........... 19, 24
vi
Contents
Page
Roadway Express Inc. v. Piper, 447 U.S. 752 (1980) ...10, 17
United States v. Abrams, 427 F. 2d 86 (2nd Cir. 1970), cert.
PT 2 Fis ee Re re rr ree 17
United States v. Alabama R.R., 142 U.S. 615 (1892) .... 22
United States v. Batten, 266 F. Supp. 492 (D.C. Cir. 1964),
cert. denied, 380 U.S. 912, rehearing denied, 381 U.S.
Ds onan ccvcdcuccss Cue ck ct ne ceeeEeeadatewets 17
United States v. Bramblett, 348 U.S. 503 (1955) ........ 17
United States v. Jackson, 280 U.S. 183 (1930) .......... 22
United States v. Massey, 550 F. 2d 300 (Sth Cir. 1977)... 17
United States v. Nixon, 418 U.S. 683 (1974). .......... 22, 23
Van Horn v. Schweiker, 717 F. 2d 871 (3rd Cir. 1983)
Wyle v. R. J. Reynolds, 709 F. 2d S85 (9th Cir. 1983)
18
Statutes Cited:
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Contents
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Rules and Regulations Cited:
Federal Rules of Appellate Procedure, Rule 38 ....... i, 3, 10
Federal Rules of Civil Procedure:
Rule 11. | , 3, 17
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Contents
Page
5 C.F.R. 752.404(f) . | | 25, 26
$ C.F.R. 1201.33 3
$ C.F.R. 1201.56 3
$ C.F.R. 1201.56(c\3) 21, 22
$ C.F.R. 1201.72... , 3
S$ C.F.R. 1201.72(a) 17
United States Constitution Cited:
First Amendment 21
Fifth Amendment | , i, 2
Sixth Amendment 2
APPENDIX
Appendix A — Order Denying Petition for Rehearing
la
Appendix B — Decision of the United States Court of Appeais
tor the Federal Circuit 2a
Appendix C — Opinion and Order of the Merit Systems
Protection Board 6a
Appendix D — Opinion and Decision of the Merit Systems
Protection Board 10a
ix
Contents
Appendix E -— Text of Provisions Involved ............ sia
Appendix F — Excerpt from Petitioner's Brief to United
ee Se Ge I 0.05 050 cadens a dccucncacees SSa
No.
In The
Supreme Court of the United States
October Term, 1825
THOMAS D. ROBINSON, RICHARD V. KITTS, RICHARD
C. NEWMAN, JOHN E. NEAL and ROBERT L. KAPP,
Petitioners,
VS.
DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FEDERAL
CIRCUIT
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Federal Circuit is reported at 769 F. 2d 1556 and is set out in
the Appendix hereto at 2a.
The opinion of the Merit Systems Protection Board is set
out in the Appendix hereto at 6a.
The cpinion of the Presiding Official of the Merit Systems
Protection Board is set out in the Appendix hereto at 10a.
JURISDICTION
The initial judgment of the Court of Appeals was made and
entered on July 31, 1985 (2a). A petition for rehearing was denied
and entered September 9, 1985 (1a). The jurisdiction of this Court
is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS,
RULES AND REGULATIONS INVOLVED
The pertinent text is set forth in the Appendix at pages
4la-S4a.
United States Constitution:
Fifth and Sixth Amendments (41a).
Statutes:
5 U.S.C. §§ 7513; 7701; 7703 (41a-45a).
Regulations:
Office of Personnel Management (OPM) Regulations
issued pursuant to 5 U.S.C. § 7513(a):
5 C.F.R. 752.404 (45a).
Other regulations issued by OPM:
5 C.F.R. 630.401; C.F.R. 630.403 (47a-48a).
Merit Systems Protection Board (MSPB) Regulations:
5 C.F.R. 1201.33; 1201.56; 1201.72 (48a-Sla).
Court Rules:
Federal Rules cf Appellate Procedure:
Rule 38 (Sla).
Federal Rules of Civil Procedure:
Rule 11; Rule 37(b) (Sla-54a).
STATEMENT OF THE CASE
Jurisdiction of the Merit Systems Protection Board arose
under 5 U.S.C. § 7513 and 5 U.S.C. § 7701.
Jurisdiction of the United States Court of Appeals for the
Federal Circuit arose under 5 U.S.C. § 7703.
Harry D. Shargel is and was counsel for the employees-
petitioners herein and joins herein because the Court of Appeals,
in affirming the opinion of the Merit Systems Protection Board,
decided:
‘*Under the provisions of Rule 38, Fed.R.App.P.,
counsel Harry D. Shargel is assessed in favor of
the government the sume of $590.”’
Employees-petitioners are Air Traffic Control Specialists who were
employed by the Federal Aviation Administration (FAA) at the
Philadelphia Tower in Philadelphia, Pennsylvania, under the
jurisdiction of the Eastern Region of the FAA. In August 1981
and prior thereto, said tower was headed by Robert J. Beckelman,
Jr., Facility Chief.
As both proposing and deciding official, said Beckelman
dismissed the petitioners who then appealed to the Merit Systems
Protection Board (MSPB) at its Philadelphia office.
Beckelman initiated proceedings to remove each of the
petitioners by the use of a form letter addressed separately to
each which stated, ‘‘This is notice that I intend to remove you
from your position’’. Two reasons were given: Reason | was
violation of 5 U.S.C. § 7311 and 18 U.S.C. § 1918 (striking);
Reason 2 was ‘‘Unauthorized Absence’’. Under reason | there
was a ‘‘Specification’’ that beginning approximately 7:00 a.m.
EDT, on August 3, 1981, a nationwide strike of air traffic
controllers had occurred; and that beginning at specified date and
time the petitioners had participated in a strike against the
government. Under reason 2 there was a ‘‘Specification’’ that
beginning first at a designated shift on a specified date ‘‘you failed
to report for your scheduled tour of duty’’ and remained absent
without authorization.
Each letter advised that the material relied upon was available
at the Philadelphia Tower and stated: ‘‘If you wish to review this
material, please contact Thomas P. Hamill, Deputy Chief’’. Each
letter also recited a reasonable cause to believe that the addressee
had committed a crime and advised ‘‘you may reply to this notice
personally, in writing or both and furnish evidence to me, within
7 calendar days after you receive this letter.”’
Thomas D. Robinson
The notice dated August 6, 1981, addressed to Robinson
specified striking beginning at 1500 EDT on August 6, 1981 and
unauthorized leave beginning at the 1500 EDT to 2300 EDT shift
on August 6, 1981. The appeal file contained a postal receipt
reflecting mailing of the notice on August 6, 1981. There was
no return receipt of reflecting delivery. By letter dated August
17, 1981, Beckeiman advised Robinson that he was removed
effective August 21, 1981. The appeal file contained postal receipts
which reflected mailing August 17, 1981 and received August 19,
1981.
Richard V. Kitts
The notice dated August 6, 1981, to Kitts specified striking
beginning at 0700 EDT on August 6, 1981 and unauthorized leave
beginning at the 0700 EDT to 1500 EDT shift on August 6, 1981.
The appeai file contained registered mail postal receipts reflecting
mailing of the notice on August 6, 1981 and received by Sally
Kitts on August 10, 1981. By letter dated August 17, 1981
Beckelman advised Kitts he was removed effective August 21,
1981. The appeal file contained postal receipts which reflected
mailing August 17, 1981 and receipt by Susan Kitts on August
25, 1981.
Richard C. Newman
The notice dated August 6, 1981 to Newman specified striking
beginning at 1512 EDT on August 3, 1981 and unauthorized leave
beginning at the 1512 EDT to 2312 EDT shift on August 3, 1981.
The appeal file revealed mailing of the notice by registered mail
on August 6, 1981. There was no return receipt reflecting delivery.
By letter dated August 17, 1981 Beckelman advised Newman that
he was removed effective August 21, 1981. The appeal file
contained postal receipts which reflected mailing on August 17,
1981 and receipt by Sharon A. Newman on August 18, 1981.
John E. Neal
The notice dated August 6, 1981 addressed to Neal specified
striking beginning at 1512 EDT on August 6, 1981 and
unauthorized leave beginning at the 1512 EDT to 2312 EDT shift
on August 6, 1981. The appeal file contained registered mail postal
receipts reflecting mailing August 6, 1981 and received by
Geraldine M. Neal on August 7, 1981. By letter dated August
17, 1981, Beckelman advised Neal he was removed effective August
21, 1981. The appeal file contained a postal receipt which reflected
mailing August 17, 1981. It did not contain a postal receipt
reflecting deliver.
Robert L. Kapp
The notice dated August 6, 1981 addressed to Kapp specified
striking beginning at 1512 EDT on August 6, 1981 and
unauthorized leave beginning at the 1512 EDT to 2312 EDT shift
on August 6, 1981. The appeal file revealed mailing of the notice
by registered mail August 6, 1981. The return receipt reflected
that it was returned ‘‘unclaimed’’ — it was not delivered. By letter
dated August 17, 1981, Beckelman advised Kapp he was removed
effective August 21, 1981. The postal receipt reflects mailing
August 17, 1981 and receipt by Mrs. Connie Taylor on August
19, 1981.
_ By order dated April 7, 1982, the Chief Administrative Law
Judge, MSPB, authorized discovery national and regional in scope
and directed that it be completed May 31, 1982. By notice dated
April 12, 1982, the MSPB Philadelphia Regional Director stated:
**No extensions of time for submission of discovery requests will
be granted past May 31, 1982.”’
In response to interrogatories the Agency stated that
information relative to mailing of the notice of ir’ nt and notice
of decision and the date each employee received the notice of
intent was contained in the appeal file.
The MSPB Administrative Law Judge by Discovery No.
ALJ-1, under 16(a), ordered the FAA to make available for
inspection and copying all documents pertaining to the procedures,
policies and guidelines to be followed in discharging controllers
in 1981.
By order dated April 12, 1982, the Presiding Official ordered
the deposition of Robert J. Beckelman, Jr., and further directed:
‘**These deposition proceedings must be completed by May 31,
1981.””
By order dated April 29, 1982, the Presiding Official
appointed the petitioners’ attorney and two other law firms as
a committee to take the deposition of Beckelman on behalf of
the clients of various law firms. The only two law firms dropped
out, leaving petitioners’ attorney as the only member of the
committee to take the deposition of Beckelman. One of the two
dropped out after a motion to reconsider the order of April 29,
1982 was made by the agency to drop both of said law firms
because they failed to file timely requests to depose Beckelman.
There was no motion to reconsider the order directing the
deposition of Beckelman. As a matter of fact, the proposed order
attached to the moving papers was in consonance with the order
to depose Beckelman.
The Agency failed to produce Beckelman. Petitioners’
attorney on June 4, 1982, moved for sanctions granting the appeal
on behalf of all appellants involved in the deposition of Beckelman
for failure to produce Beckelman and the documents which
allegedly reflected authority of Beckelman to dismiss petitioners.
The Agency did not oppose the motion. It submitted no response
to the motion. On September 20, 1982, the date before the hearing,
the Presiding Official orally advised counsel that the motion was
denied.
In response to petitioners’ motion for discovery, the Agency,
under date of April 1, 1982, submitted to the Presiding Official
‘**Respondent’s Objection to Appellant’s Motion for Discovery’’.
Therein the Agency advised the Presiding Official and petitioners’
attorney as follows:
‘**Respondent objects to the proposed deposition
of the deputy chief of Philadelphia International
Tower. The facility chief made the decision to
remove Appellant from his position as an air traffic
control specialist. The deputy tower chief has no
information relevant to the matter before this
Board.”’
At the MSPB hearing the Agency offered the deputy chief
of Philadelphia Tower (Thomas P. Hamill) as its sole witness
allegedly having full knowledge relevant to the matter before the
Board. The agency offered the explanation that it had willfully
lied as a matter of policy. Thus it stated:
‘‘In developing responses to requests for
depositions, it was the policy of the Eastern Region
of the FAA to avoid depositions of other than the
Facility Chiefs in order to minimize operational
impact. Therefore, a general response was
developed which opposed such depositions on the
grounds that the facility chief was, in many cases,
the person most knowledgeable of the policies,
procedures and practices used in implementing the
removal under appeal.”’
At the hearing petitioners objected to the testimony of Hamill;
moved for sanctions granting petitioners’ appeal, and urged the
MSPB to refer the matter to the Department of Justice for criminal
prosecution. The Presiding Official refused to impose sanctions,
permitted Hamill to testify and refused to refer the matter to the
Department of Justice.
Petitioners introduced into evidence a regulation which
delegated authority to act as a deciding official in adverse actions
involving removal to:
(a) Deputy Regional Director
(b) Executive Officer
(c) Division Chiefs and Assistant Division Chiefs
(d) Heads of Staff Office
and further stated:
‘*This authority may not be delegated.’”’
Accordingly, on this record, the Tower Chief, Beckelman,
who dismissed the employees-petitioners acted without authority.
In the pertinent FAA Region there was no authority to dismiss
anybody for unauthorized absence. There was no authority for
making specifications of striking or unauthorized absence August
3 or 4or up to 11:00 a.m. of the Sth, 1981 as a basis for dismissal.
Any notice of proposed removal which specified activities on
August 3 or 4 were incorrect and contrary to regional policy.
The FAA Region governing the Philadelphia Tower did not
call or announce an operational necessity, a facility emergency
10
an operational emergency within the region.
The MSPB Presiding Official sustained the dismissal. The
MSPB denied the employees’ petition for review. The Court of
Appeals affirmed and assessed counsel $500 in favor of the
government ‘‘under the provisions of Rule 38, Fed.R.App.P.”’
REASONS FOR GRANTING THE WRIT
The Court of Appeals has so far departed from the accepted
and usual course of judicial proceedings as to call for an exercise
of the Court's power of supervision.
In assessing a sum against petitioners’ counsel under Rule
38 FRAP the Court of Appeals acted in conflict with a decision
of this Court and the decisions of other courts of appeal and
with arbitrary and capricious disregard of the law and the facts.
FRAP Rule 38 provides that if a Court of Appeals shall
determine that an appeal is frivolous, it may award ‘‘just damages’’
and single or double costs to the appellee. Here the Court of
Appeals ‘‘assessed’’ a sum but did not state how it arrived at
it sO as to reflect that the amount is ‘‘just’’. Furthermore, the
court ‘‘assessed’’ the sum against the attorney despite the fact
that Rule 38 does not refer to the attorney.
This assessment was made without notice and without an
opportunity for a hearing and without a finding that the attorney
had acted in bad faith as mandated in Roadway Express Inc. v.
Piper, 447 U.S. 752, 767 (1980). See also, Miranda v. Southern
Pacific Transportation Co., 710 F. 2d 516, $22 (9th Cir. 1983);
Freeman v. Local Union No. 135, 746 F. 2d 1316 (7th Cir. 1984).
1]
In its per curiam opinion the Court of Appeals stated:
“Counsel bases this entire appeal on an unfounded
attack on the government, saying that the board’s
refusal to reinstate petitioner or to impose sanctions
on the government (for failure to produce
Philadelphia Tower Chief Beckelman for
deposition and failure to strike Deputy Tower
Chief Hamill’s testimony) deprived petitioners of
due process and Sixth Amendment rights. That
assertion is part of an indiscriminate ‘‘blast of
procedural objections’’ subtantially identical to
that condemned in DiMasso v. Department of
Transportation, FAA, 735 F. 2d 526, §27, n.3, 528
(Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984),
' an authority blithely disregarded by counsel.”’
This statement is not in accord with the facts. Counsel did not
base the entire appeal on an attack on the government. Petitioners’
brief set forth the following ‘‘Statement of the Issues Presented
for Review’’:
‘**1. Were petitioners denied due process.
2. Did the deciding official have authority to
dismiss.
3. Are petitioners Kapp, Newman and
Robinson entitled to relief because they never
received a notice of intent to remove.
4. Were petitioners on strike.
5. Were petitioners Kapp and Robinson
dismissed for a reason other than alleged in the
notice of intent.
12
6. Wa —__ . utice of decision given petitioners
Kitts, Neal and Newman effective."’
Counsel presented arguments with respect to each of said issues.
[See copy of “‘Summary of Argument’’ (5Sa) which had been
included in Petitioners’ Brief to the United States Court of
Appeals. ]
Although the court, in its opinion, partially addressed the
first issue, it completely ignored all the other issues, ail of which
were based on facts adduced at the hearing and on citations of
statutes, regulations and cases. None of these issues had been
previously addressed by the court. As a matter of fact, one of
the issues encompassed a matter specifically reserved by the court
in Adams v. Department of Transportation, 735 F . 2d 488, 494,
Note 5—whether the Presiding Official could take official notice
of a strike.
Furthermore, counsel did not disregard DiMasso v.
Department of Transportation. The full quotation from said case
appears at p. 528 and is a follows:
‘“*DiMasso chose not to present evidence rebutting
the charges of illegal strike participation and
absence without leave; he instead chose to respond
with ‘a blast of procedural objections’.’’
In our case, all petitioners testified and presented evidence to rebut
the charges. The DiMasso case has no relationship to the conduct
of .petitioners’ counsel in this case. Furthermore, procedural
objections can properly be raised because the law provides that
they are grounds for relief. 5 U.S.C. § 7703(c) specifically directs
the court to:
13
“* . . . review the record and hold unlawful and
set aside amy agency action, findings, or
conclusions found to be-—. . . (2) obtained without
procedures required by law, rule or regulation
having been followed.”’
The court then goes on to cite the Presiding Official’s rationale
for denying sanctions for failure to produce Tower Chief
Beckelman and then stated:
*“Counsel makes no attempt to show that view
erroneous.”’
Here, again, the court's statement is not in accord with the facts.
Counsel's brief at pp. 12-16 addressed this issue.
The court goes on to state that the government conceded
that it’s initial ‘‘refusal’’' to produce Hamill for deposition was
improper and that the ‘‘refusal’’ was based on policy denying
access to Deputy Tower Chiefs, thus minimizing disruption
involving only the Tower Chief in appeals; and that nothing of
record indicates any attempt to hide Hamill’s testimony. Here
again, the court’s statement is not in accord with the facts. The
record reflects that the Agency did not ‘‘refuse’’ to produce
Hamill—something it had no right to do in any event. The record
reflects that the Agency willfully made a false statement so as
to induce the Presiding Official not to direct Hamill’s testimony
and to induce petitioners’ counsel not to seek his deposition supra
at p. 8). It wilfully deceived the Board's Presiding Official.
The Court of Appeals went on to say:
**. . . following the initial refusal, the government
1. A word used by the Presiding Official.
14
specifically and repeatedly informed all petitioners
of its intent to use Hamill’s testimony, submitting
&@ proposed witness list which included Hamill’s
name seven months before the hearing. In May
1982, and six months before the hearing, the
Agency offered Hamill for deposition, having
recognized that Beckelman could not be
produced.”’
Here, again, the court’s statement is not in accord with the
facts. The listing of witnesses was related to all Philadelphia cases
and not specifically to petitioners in this case. Hamill’s name was
listed with Beckelman’s and others who were not called. Beckelman
could have been produced. There is no evidence that Beckelman
refused to testify. At the very least the government could have
subpoened him to sustain its burden of proof. On the other hand,
the Agency disobeyed an order of August, 1982 by the presiding
official which required a listing of witnesses for the particular
cases. The Agency listed no witnesses in response to this order
and the presiding official refused to impose sanctions. This was
called to the attention of the court with citations to the record.
Aside from these inaccuracies, the fact remains that the court
does not find that the Agency changed its representation with
respect to Hamill’s lack of knowledge. What it comes down to
is that the court finds that the Agency offered Hamill for
deposition concerning matters about which it represented that he
had no knowledge and that counsel should have deposed Hamill
despite the fact he was supposed to have no knowledge. Why
would an attorney depose a person who has no knowledge?
The court states that counsel fully cross examined Hamill.
The fact is, as argued in petitioners’ brief, Hamill, in fact, lacked
knowledge about crucial elements and was permitted to testify
about matters of which he had no personal knowledge.
i iciaieieeaininedininaaiiias
’ 15
Counsel stated in his brief:
‘“‘This is a proceeding based on an alleged
crime. The penalty is economic death. Under the
Sixth Amendment, the person accused of a crime
is entitled to be confronted with the witnesses
against him. This is simple justice and due process.
Here, appellants were not confronted with the
witnesses. Instead of calling Beckelman and the
supervisors who had knowledge, Hamill, the
person who had been represented as knowing
nothing, was permitted, over objection, to testify
as to anything and everything regardless of his lack
of knowledge. True cross-examination was
impossible. How can you cross examine a witness
about what another person said or saw? Hamill
was thus free to say anything. The less personal
knowledge he had, the freer he was to testify. Since
the presiding official disregarded rules of evidence
on the grounds that he would give it the weight
it deserved, Petitioners had no way of knowing
what evidence had to be contradicted and what
would be ignored.’’
The court further overlooked the fact that in April, 1982,
the Presiding Official had directed the deposition of Beckelman
by May 31, 1982 and the Presiding Official’s superiors mandated
completion of discovery by that date. When the Agency failed
to produce Beckelman, petitioners’ moved for sanctions June 4,
1982, granting the appeal. Despite the fact that the Agency did
not oppose the motion, the Presiding Official took no action on
the motion until the day before the hearing, at which time he
advised petitioners’ counsel orally that the motion was denied
(supra, pp. 7, 8). Petitioners’ brief indicated the following at p. 16:
iis naaaeiacateteeeeaiil
16
‘*The Presiding Official further goes out of
his way to protect the agency by stating that he
had previously indicated, in connection with other
employees, that if requested he would issue a
subpoena for Beckelman and order Hamill
deposed. This is a gratuitious unsubstantiated
statement. The time for discovery had ended May
31, 1982. An oral decision denying the motion was
conveyed to Petitioner’s attorney no earlier than
the day before the hearing (APP 43). Why would
he have offered to issue a subpoena when he had
not acted on the motion?
The Presiding Official’s opinion completely
ignored Petitioners’ allegation that the false
statement re Hamill constituted a crime. He also
refused Petitioners’ request at the hearing that he
should refer the matter to the Department of
Justice for prosecution. He failed to notify all other
litigants that they had been imposed upon so that
they might take appropriate action to protect their
interests—this despite the fact that Petitioners’
attorney urged him to do so. (APP 54-57)’’
The court found counsel’s allegations against the Presiding
Official unjustified, meritless and offensive. The fact is that the
allegations were made in good faith and based on citations to
the record. The court’s errors of fact set forth above indicate
that the court did not ‘‘review the record”’ carefuily.
- Amazingly, the court condoned the misconduct of the
government and punished petitioners’ counsel for bringing said
misconduct to the attention of the court. It emulated the ancient
custom of punishing the messenger who brought bad tidings.
17
The court accepted and condoned a standard of conduct at
variance with established standards reflected in the federal rules
and the criminal statutes as well as the standards enunciated by
the Supreme Court.
The court overlooked the fact that MSPB Regulation 5 C.F.R.
1201.72(a) provides that the Federal Rules of Civil Procedure may
be used as a general guide for discovery practices. The court also
overlooked the fact that the FRCP evidences a standard of honesty
and obedience which was violated. FRCP Rule 11 provides
sanctions for false statements. Rule 37(b) provides sanctions for
failure to produce a witness for discovery.
The court stated in Roadway Express, Inc. v. Piper, 447 U.S.
752, 763-764 (1980):
‘*Rule 37 sanctions must be applied diligently both
‘to penalize those whose conduct may be deemed
to warrant such a sanction, [and] to deter those
who might be tempted to such conduct in the
absence of such a deterrent.’ ”’
The court also overlooked the fact as argued by petitioners’
counsel in his brief, that the false statements constituted violations
of 18 U.S.C. § 1001 and 18 U.S.C. § 1505—criminai statutes.
United States v. Bramblett, 348 U.S. 503 (1955); United States
v. Massey, 550 F. 2d 300 (Sth Cir. 1977); United States v. Abrams,
427 F. 2d 86 (2nd Cir. 1970), cert. denied, 400 U.S. 832; United
States vy. Batten, 266 F. Supp. 492 (D.C. Cir. 1964), cert. denied,
380 U.S. 912, rehearing denied, 381 U.S. 930.
Since the Agency wilfully deceived the Board and engaged
in conduct utterly inconsistent with the orderly administration
of justice, the court shculd have decided in favor of petitioners.
18
In Mesarosh v. United States, 352 U.S. 1, 14 (1956) the court
stated:
‘**This is a federal criminal case, and this Court
has supervisory jurisdiction over the proceedings
of the federal courts.’ If it has any duty to perform
in this regard, it is to see that the waters of justice
are not polluted. Pollution having taken place here,
the condition should be remedied at the earliest
opportunity.’’ [Footnote omitted.]
It then went on to quote from a case involving an administrative
proceeding:
‘** ‘The untainted administration of justice is
certainly one of the most cherished aspects of our
institutions. Its observance is one of our proudest
boasts. This Court is charged with supervisory
functions in relation to proceedings in the federal
courts. See McNabb v. United States, 318 U.S.
332, 63 S.Ct. 608, 87 L.Ed. ‘819. Therefore,
fastidious regard for the honor of the
administration of justice requires the Court to
make certain that the doing of justice be made so
manifest that only irrational or perverse claims of
its disregard can be asserted.’ Communist Party
v. Subversive Activities Control Board, 351 U.S.
115, 124, 76 S.Ct. 663, 668.”’
See also, Wyle v. R. J. Reynolds, 709 F. 2d 585, 589 (9th Cir.
1983).
19
II.
The deciding official lacked authority to dismiss the
petitioners.
This argument was made to the Court of Appeals but was
not addressed by the court.
It is elementary that the law and regulations contemplate
actions by authorized persons. A person not authorized to act
may not dismiss anybody. Cf., Federal Crop Insurance Corp.
v. Merrill, 332 U.S. 380, 384 (1947). This is jurisdictional and
has no relation to the question as to whether any petitioner was on
strike. As set forth above under the pertinent regulation, the person
who dismissed the employees-petitioners had no authority to act.
The Supreme Court has held that a defendant must be judged
upon the evidence in his own trial and not upon the evidence
in another trial. Thus, it stated in Noto v. United States, 367
U.S. 290, 299 (1961):
‘it is upon the particular evidence in a particular
record that a particular defendant must be judged,
and not upon the evidence in some other record.’’
The Court of Appeals has also held that its decision must be based
on a review of the record. Adams v. Department of
Transportation, 735 F. 2d 488, 494 (1984). The statute, 5 U.S.C.
§ 7703(c) mandates review of the record.
Furthermore, the notice of intent to dismiss petitioner
Newman involved a specification date of August 3, 1981.
As set forth above there was no authority to make
specifications of striking or unauthorized absence on August 3
20
and 4 or up to 11:00 a.m. on the Sth of August 1981 as a basis
for proposed removal and there was no authority to dismiss anyone
for unauthorized absence.
Accordingly, on the basis of the record of this case, the
removal of Newman was unauthorized for that reason too.
Il.
Failure of Notice.
The argument relative to failure to give notice was made to
the Court of Appeals but not addressed by the court.
The statute in relevant part provides for a written notice
‘*stating the specific reasons for the proposed ”’ dismissal and
‘*a reasonable time but not less than 7 days’’ for the employee
to answer. 5 U.S.C. § 7513.
The Office of Personnel Management (OPM) was authorized
to issue regulations. 5 U.S.C. § 7513(a). In 5 C.F.R. 752.404 OPM
implemented 5 U.S.C. § 7513(b), stating:
‘*(a) Statutory Entitlements. An employee against
whom action is proposed under this subpart is
entitled to the procedures provided in § U.S.C.
7513(b).”’
It then proceeded to set forth the entitlements which include the
notice requirements.
It is emphasized that these are entitlements recognized by
the office authorized by the statute to implement the statute. These
statutory entitlements involve actions the Agency must take. These
entitlements are not dependent on any request by the employee.
These actions must be taken and entitlements afforded by the
Agency without any request by the employee. Failure to afford
the employee these entitlements constitutes a violation of law and
the MSPB is required to grant relief in such event under its
mandate not to sustain agency action where the decision is not
in accordance with law. 5 U.S.C. § 7701(c)(2). The Court of
Appeals must grant relief under its mandate to set aside an action
obtained without procedures required by law, rule or regulation
having been followed. 5 U.S.C. § 7703(c).
Failure to give any notice is not only a violation of the statute
but is a violation of the due process mandated by the First
Amendment and warrants relief regardless of any other elements
of the case. Cf., Cleveland Board of Education v. Loudermill,
53 LW 4306.
Since neither Robinson, Newman nor Kapp received any
notice they are entitled to relief on this ground alone.
Furthermore the Presiding Official found that except for Neal,
the petitioners received less than seven days’ notice but held that
there was no harmful error and that the failure to give at least
seven days’ notice did not warrant relief. The Court of Appeals,
in other cases, has adopted this position. It is submitted that this
position is erroneous.
Under the plain terms of the statute, harmful error need be
shown only in the case of the Agency’s procedures — in this case
the procedures of FAA. This is exactly how the Agency charged
with with administering the law (MSPB) interpreted the law long
before it was called upon to consider the validity of the FAA
action in firing the air controllers. Thus, the MSPB in its
regulations at 5 C.F.R. 1201.56(c)(3) set forth the following
definition:
tw
th
‘‘Harmful error. Error by the agency in the
application of its procedures which, in the absence
or cure of the error, might have caused the agency
to reach a conclusion different from the one
reached.”’
This interpretation should be given great weight. United States
v. Jackson, 280 U.S. 183 (1930); United States v. Alabama R.R..,
142 U.S. 615, 621 (1892). The OPM and MSPB regulations have
the force of law. United States v. Nixon, 418 U.S. 683 (1974).
The language of the statute is unambiguous and must be
enforced as written. Even if Congress had intended otherwise,
the law cannot be altered. Caminetti v. United States, 242 U.S.
470, 485, 490 (1970). According to the plain language of the
statute, the concept of harmful error applies only to the agency
procedures, i.e., the procedures of the Federal Aviation
Administration. It does not apply to violations of the law or
regulations issued by OPM in implementing the law.
It is recognized that adherence to the plain language of the
law might have resulted in the reversal of many dismissals of those
who appealed. However, it is not the function of the administrative
or judicial process to protect government action which violates
the law. Jmmigration and Naturalization Service v. Chadha, 462
U.S. 919, 944 (1983).
Under the MSPB concept of harmful error, the Agency having
made up its mind to dismiss petitioners, did not have to give
petitioners seven days or any amount of notice or comply with
any other of the requirements of the statute. Since the Agency
would have dismissed petitioners regardless of anything they may
have said or done, there could be no harmful error in denying
them any of the statutory entitlements. Under the Board concept.
the Agency might very well have dispensed with a notice of
23
proposed action or any right of the employee to answer charges.
It could merely have dismissed the employee by fiat without any
concept of due process. This may be the jurisprudence of a
dictatorship, but it is not American jurisprudence. In the United
States, the government too must obey the law and take action
in accordance with due process provided by law. Even the President
of the United States must obey the law. United States v. Nixon,
418 U.S. 683 (1974).
IV.
Petitioners were not on strike.
This is another argument made to the Court of Appeals but
not addressed by that court.
The notice of intent to remove specified striking beginning
as follows:
Robinson — 1500 August 6, 1981
Kitts — 0700 August 6, 1981
Newman — 1512 August 3, 1981
Neal — 1512 August 6, 1981
Kapp — 1512 August 6, 1981
As set forth above the dismissal of Newman with a
specification of August 3, 1981 was not authorized.
The Court of Appeals has held that the Agency must prove:
(1) that a strike was in progress on the date striking is charged;
and (2) that the employee could have returned to work on that
date. Adams v. Department of Transportation, 735 F. 2d 488,
493 (1984).
24
Here the Presiding Official over petitioners’ objection, relied
solely on ‘‘official notice’’ that the strike lasted through August
6, 1981.
It is submitted that there was no basis for taking official
notice. The Court of Appeals has recognized that the strike ended
at different times at different centers and noted that the issue
of official notice was neither raised nor decided in the lead cases.
Adams v. Department of Transportation, 735 F. 2d 488 (1984)
at p. 494 note 5.
The Agency did not submit evidence of the continuance of
the strike as in Adams v. Department of Transportation, supra.
Nor was there any claim by the petitioners that there was any
confusion as to when the strike ended as was alleged in the latter
case. As a matter of fact petitioners claimed there was no confusion
and submitted evidence to prove that the Agency regarded the
strike as over 11 a.m. August 5, 1981 as did petitioners.
All of the petitioners testified they believed the public
announcements by the President, the Secretary of Transportation
and the FAA Administrator that the strike was over 11 a.m.
August 5, 1981. There was no confusion here. The highest
authorities declared the strike over. The petitioners believed them
and relied on their statements and the Agency is estopped and
bound thereby. The Agency had the burden of proof that the
strike was in existence. The highest officials stated and proved
otherwise. On the record in this case there was no strike after
11:00 a.m. on August 5, 1981.
The petitioners must be judged upon the evidence in their
record and not upon the evidence in another record. 5 U.S.C.
§ 7703(c); Noto v, United States, 367 U.S. 290, 299 (1961); Adams
v. Department of Transportation, 735 F. 2d 488, 494 (Fed. Cir.
1984).
25
It is emphasized that in the pertinent FAA Region there was
no authority to dismiss anybody for unauthorized absence.
Vv.
Petitioners Kapp and Robinson were improperly dismissed
for a reason other than alleged in the notice of intent.
This argument was made to the Court of Appeals but not
addressed by the court.
Kapp was charged with unauthorized leave on the 1512 shift,
August 6, 1981. Although there is such a shift, he was not in
fact scheduled for that shift. He was scheduled for another shift.
Robinson was charged with unauthorized leave on the 1500
shift, August 6, 1981. Although there is such a shift, he was not
in fact scheduled for that shift. He was scheduled for another shift.
In neither case was it a matter of incorrectly describing the
right shift. In both cases, the charges were for the wrong shift.
Thus, neither Kapp nor Robinson were AWOL or on strike as
charged.
In arriving at its decision, the Agency could consider only
the reasons specified in the notice of proposed action. 5 C.F.R.
752.404(f) (47a). The propriety of the actions must be judged solely
by the grounds invoked by the Agency. This is elementary due
process. Cf., Cleveland Board of Education v. Loudermill, 53
L.W. 4306. Appellants must be fired for valid reasons or not at
all. Horne v. Merit Systems Protection Board and Interstate
Commerce Commission, 684 F. 2d 155, 157, 159.
The Supreme Court stated in Motor Vehicle Manufacturers
Association v. Farm Mutual Automobile Insurance Co., 463 U.S.
29, 50 (1983):
“It is well established that an agency’s action must
be uphe'd if at all, on the basis articulated by the
agency itself."’
Vi.
The decisions removing petitioners Kitts and Neal were not
effective.
This argument was made to the Court of Appeals but not
addressed by the court.
As set forth above, Kitts was removed effective August 21,
1981 by a letter received August 25, 1981; Neal was removed
effective August 21, 1981 but did not receive the letter of removal.
As set forth above OPM is the Agency designated to
implement the statute and its regulations have the force of law.
OPM mandated that the Agency deliver the notice of decision
to the employee at or before the effective date of the action and
that said notice tell the employee of his appeal rights. 5 C.F.R.
752.404(f) (47a). If it arrives after the effective date the removal
is not effective. A new notice must be sent. The FAA itself directed
that where the removal letter arrived after the effective date of
removal, a revised letter of removal should be sent with a new
effective date of removal. It is submitted that the removal of Kitts
and Neal was not effective.
tv
~3
Vil.
An improper rule of evidence was applied.
This argument was made to the Court of Appeals but not
addressed by that court.
The MSPB Presiding Official established a special rule of
evidence applicable solely to the petitioners. Their evidence had
to be ‘‘objective’’. On the other hand the Presiding Official
rationalized the misconduct of the Agency; permitted Hamill to
testify as to any matter regardless of whether he had personal
knowledge; and did not require the Agency to call witnesses
identified by petitioners as having personal knowledge favorable
to petitioners.
Petitioners were in a catch-all situation. If they had not
testified they would have been deemed to have admitted guilt.
Having testified they were not believed.
Robinson, Kitts and Kapp were sick at the times in question
and therefore entitled to sick leave. § C.F.R. 630.401 (47a);
Hockman v. American Bible Monuments Commissions, 11 MSPB
246 (1982). Each so testified. Kitts and Kapp submitted doctors
statements. Agency records showed Kapp had been on approved
sick leave from July 21 to July 26, 1981.
The Presiding Official went so far as to find Kapp’s doctor
unqualified. He set his expertise against that of the doctor. In
this connection compare Van Horn v. Schweiker, 717 F. 2d 871,
874 (3rd Cir. 1983).
In refusing to accept the uncontradicted evidence of the
petitioners that they were sick, the MSPB ignored its own decision
in Hockman v. American Bible Monuments Commission, supra.
28
The uncontradicted evidence of the petitioners should have been
accepted. Duvall v. United States, 647 F. 2d 131, 134 (Ct. Cl.
1981). The court should also have fcliowed its own concept set
forth in Adams v. Department of Transportation, 735 F. 2d 488,
492 (C.A. Fed. Cir. 1984) where it stated:
‘*The law and experience teach that a striker can
be expected to refrain from falsely testifying under
oath that his absence was due to non-strike
reasons’’.
CONCLUSION
The assessment against the attorney was improper and the
employees-petitioners were improperly dismissed.
It is submitted that the petition for a writ of certiorari should
be granted.
Respectfully submitted,
HARRY SHARGEL
Attorney for Petitioners
la
APPENDIX A—ORDER DENYING
PETITION FOR REHEARING
UNITED STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT
No. 85-988
THOMAS D. ROBINSON, ET AL.,
Petitioners,
Vv.
THE DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION,
Respondent.
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/ Francis X. Gindhart
Francis X. Gindhart, Clerk
September 9, 1985
cc: Harry D. Shargel
Stephen J. McHale
2a
APPENDIX B—DECISION OF THE UNITED STATES
COURT OF APPEALS FOR THE FEDERAL CIRCUIT
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
No. 85-988
THOMAS D. ROBINSON, et al.,
Petitioners,
Vv.
DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION,
Respondent
DECIDED: July 31, 1985
Before MARKEY, Chief Judge, RICH and SMITH, Circuit
Judges.
PER CURIAM.
The decisions of the Merit Systems Protection Board (board),
Nos. PH075281F0991, PH075281F1001, PHO075281F1002,
PH075281F1008, and PHO75281F1107, sustaining the removal of
Richard V. Kitts, John E. Neal, Richard C. Newman, Thomas
D. Robinson, and Robert L. Kapp, on charges of participating
in an illegal strike against the United States Government and
unauthorized absence, are affirmed and a sanction is imposed
on counsel.
3a
Appendix B
Analysis
After thorough review of the record, briefs, and submissions,
we conclude that the Department of Transportation, Federal
Aviation Administration, established a prima facie case of strike
participation and unauthorized absence, and that petitioners failed
to rebut that showing or to demonstrate harmful procedural error.
Counsel! bases this entire appeal on an unfounded attack on
the government, saying that the board’s refusal to reinstate
petitioner or to impose sanctions on the government (for failure
to produce Philadelphia Tower Chief Beckelman for deposition
and failure to strike Deputy Tower Chief Hamill’s testimony)
deprived petitioners of due process and Sixth Amendment rights.
That assertion is part of an indiscriminate ‘‘blast of procedural
objections’’ substantially identical to that condemned in DiMasso
v. Department of Transportation, FAA, 735 F.2d 526, 527 n.3,
528 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984), an authority
blithely disregarded by counsel.
The Presiding Official denied sanctions for failure to produce
Tower Chief Beckelman, saying ‘‘the crucial fact... is that
Beckelman was not, at the time he was requested for deposition,
a federal employee. He was, therefore, no longer associated with
the agency that was a party, nor was he a party himself, and the
agency was not obligated to produce him.’’ Counsel makes no
attempt to show that view erroneous.
The government conceded that its initial refusal to produce
Hamill for deposition was improper. That refusal was based on
a uniform policy denying access to Deputy Tower Chiefs, thus
minimizing disruption by involving only the Tower Chief in Air
Traffic Controller appeals. Nothing of record indicates any attempt
4a
Appendix B
to hide Hamill’s testimony, a strategy as much contrary to the
government’s interests as to petitioners’. Indeed, following the
initial refusal, the government specifically and repeatedly informed
all petitioners of its intent to use Hamill’s testimony, submitting
a proposed witness list which included Hamill’s name seven months
before the hearing. In May 1982, six months before the hearing,
the agency offered Hamill for deposition, having recognized that
Beckelman could not be produced.
Counsel’s assertions of unfair surprise are thus disingenuous.
Counsel could have obtained Beckelman’s testimony. The
Presiding Official offered to grant a motion for an order under
5 CFR 1201.81. See also 5 CFR 1201.74. Moreover, counsel fully
cross-examined Hamill at the hearing. The Presiding Official’s
refusal to impose sanctions or strike Hamill’s testimony was neither
error, nor an abuse of discretion.
Without the slightest justification, counsel asserts that the
Presiding Official: was biased against all petitioners; permitted
the government to employ criminal conduct, the remotest hearsay,
phony and withheld documents; failed to call witnesses with actual
knowledge; protected and defended the government; and
disregarded the rules of evidence. Counsel further says the
Presiding Official relied on ‘‘the remotest hearsay introduced by
a liar, perjurer, and forger [Hamill]’’, whereas he ‘‘should have
accepted the uncontradicted testimony and documents of
Petitioners.”’
Counsel’s utterly meritless raillery against the Presiding
Official is offensive. It wastes the resources of this court, which
has carefully reviewed petitioners’ arguments and the record ‘‘on
the possibility that a non-frivoious contention might have been
found lurking.’’ See Bowen v. Department of Transportation,
Sa
Appendix B
FAA, No. 83-799 (Fed. Cir. July __ _ 1985). It wastes the
resources of government counsel, who must diligently respond
to each baseless allegation. Most destructive to the equitable and
efficient administration of justice, however, is that counsel’s
conduct has delayed deserving litigants in obtaining their statutory
and constitutional right to judicia! review. This appeal is clearly
frivolous. See Griessenauer v. Department of Energy, 754 F.2d
361 (Fed. Cir. 1985); Moir v. Department of the Treasury, 754
F.2d 341 (Fed. Cir. 1985).
We affirm on the basis of the board’s opinion because we
do not find that the board’s decision was arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law,
or that it was obtained without procedures required by law, rule,
or regulation having been followed, or that it was unsupported
by substantial evidence. 5 U.S.C. § 7703(c) (1982). See Kochanny
v. Bureau of Alcohol Tobacco & Firearms, 694 F.2d 698, 700
n.3 (Fed. Cir. 1982).
Under the provisions of Rule 38, Fed.R.App.P., counsel
Harry D. Shargel is assessed in favor of the government the sum
of $500. See Cecil v. Department of Transportation, FAA, No.
83-1168 (Fed. Cir. July 12, 1985) and Kump v. Department of
Transportation, FAA, No. 85-931 (Fed. Cir. July 12, 1985).
AFFIRMED
6a
APPENDIX C—OPINION AND ORDER OF THE MERIT
SYSTEMS PROTECTION BOARD
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOCKET NUMBER PH075281F1008
THOMAS D. ROBINSON, ET AL.
Vv.
DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION
OPINION AND ORDER
Appellants' have timely petitioned for review of the initial
decision issued January 31, 1983, in which the presiding official
of the Board’s Philadelphia Regional Office upheld the decision
of the Department of Transportation’s Federal Aviation
Administration (agency) to remove appellants. The removal was
based on participation in a strike against the Federal Government
and unauthorized absence (absence without leave or AWOL).
Appellants first contend in their petition for review that the
presiding official erred by not imposing sanctions on the agency
for failing to produce one former agency official, the tower chief
for deposition or for the hearing, and for misstating the knowledge
of another agency official who was the agency’s primary witness.
1. This appellant’s appeal was consolidated with those of five others for
hearing, and an initial decision was issued covering ail appellants. The petition
for review includes all six appellants, who are listed by name and MSPB Docket
Number in Appendix A to this Opinion.
7a
Appendix C
The appellants further assert that the agency’s failure to produce
the tower chief as a witness violated their sixth amendment right
to confront the witnesses against them. We find these contentions
to be without merit. As the presiding official noted in his initial
decision, the appellants failed to follow the appropriate procedures
for the deposition of the tower chief or for his subpoena as a
witness. /nitial Decision at 3; 5 C.F.R. § 1201.81. In view of the
appellants’ failure in this regard, we agree with the presiding
official’s conclusion that sanctions against the agency were
inappropriate. See § C.F.R. § 1201.43(a) and Adams vy.
Department of Transportation, MSPB Docket Number
NY075281F0424 at 3-5 (April 25, 1983).
Appellants’ contention that the tower chief lacked authority
to remove them is based on a superseded agency order and is,
therefore, without merit. The unrebutted testimony of an agency
official also establishes that the tower chief was delegated the
authority to remove appellants. Hearing Transcript at 47.
Appellants also contend that the agency committed numerous
harmful errors in that the agency’s proposed removal notice was
labeled as a Letter of Intent and provided that the appellants couid
reply personally or in writing or both, rather than orally or in
writing or both; the agency charged two of the appellants with
striking and AWOL for the wrong shifts; the appellants were
allegedly denied official time to review the agency records; and
some appellants allegedly did not receive their proposed removal
notices and decision notices until after the effective dates of the
actions. We find these contentions to be without merit. The record
establishes that the agency’s action in misstating the appellants’
scheduled shifts was a matter of 12 minutes, and that all of the
appellants made replies to the charges and timely filed appeals
with the Board. Thus, the presiding official correctly found that
8a
Appendix C
appellants failed to establish that these alleged procedurai errors
were harmful, as required under the Board’s holding in Parker
v. Defense Logistics Agency, 1 MSPB 489, 492-93 (1980).
Appellants also challenge the propriety of the removai penalty
and assert that the presiding official erred in finding that no penalty
other than removal was appropriate for a sustained charge of
striking. /nitial Decision at 16. In Schapansky v. Department of
Transportation, MSPB Docket Number DA075281F1130 at 9
(October 28, 1982), we did not decide whether, as a matter of
law, mitigation of the penalty is foreclosed-:under 5 U.S.C.
§ 7311(3). The presiding official in the present case correctly
found, however, that removal was an appropriate penalty in light
of the seriousness of appellants’ offenses and that the penalty
promotes the efficiency of the service. See Schapansky, id., at 11.
The Board, having fully considered the petition for review
of the initial decision and finding that it does not meet the criteria
for review set forth at 5 C.F.R. § 1201.115, hereby DENIES the
petition.’
2. The Board has resolved the other issues raised in the petition for review
by the appellants in the following cases: Noa v. Department of Transportation,
MSPB Docket Number NY075281F0697 at 7 (April 25, 1983) (consolidation
of appeals of former air traffic controllers); Bandy v. Department of Navy,
4 MSPB 295 (1980) (allegations of bias against presiding officials); Siebert v.
Devartment of Heaith, Education, and Welfare, 4 MSPB 132 (1980) (whether
there is a denial of due process if the proposing and deciding officials are the
same person); .VMartel v. Department of Transportation, MSPB Docket Number
BNO75281F0558 at 3-13 (April 25, 1983) (constructive suspension); Anderson
v. Department of Transportation, MSPB Docket Number SL075281F0347 at
6 n.9 and 7-8 (April 25, 1983) (absence during grace period and confusion
regarding deadline shift); Kercher v. Department of Transportation, MSPB
Docket Number DA075281F0713 at 9 (May 28, 1982) motion for clarification
(Cont'd)
9a
Appendix C
This is the final order of the Merit Systems Protection Board
in this appeal. The initial decision shall become final five (5) days
from the date of this order. 5 C.F.R. § 1201.113(b).
The appellants are hereby notified of the right to seek judicial
review of the Board’s action by filing a petition for review in
the United States Court of Appeals for the Federal Circuit, 717
Madison Place, N. W., Washington, D. C. 20439. The petition
for judicial review must be filed no later than thirty (30) days
after the appellants’ receipt of this order.
FOR THE BOARD:
AUG 19, 1983 s/ Kathy W. Semone for
Robert E. Taylor
Secretary
Washington, D.C.
(Cont'd)
denied (November 23, 1982) (official notice of the existence of an unlawful
strike); Schapansky, supra, at 6 n.2 and 7-8 (prima facie case of strike
participation and invocation of 5 U.S.C. § 7513(b)\(1) to shorten the notice
period); Desiderio v. Department of the Navy, 4 MSPB 171 (1980) (AWOL
alone as cause for removal); Baracco v. Department of Transportation, MSPB
Docket Number DC075281F0895 at 16 (April 25, 1983) (appellant afforded less
than 7 days to respond to removal proposal); Campbdeil v. Department of
Transportation, MSPB Docket Number DE075281F0674 at 12-16 (April 25, 1983)
(readmission to agency facility); Anderson, supra, at 8-13 (effect of the
*‘command influence’’ on the discretion of the deciding official); Noa, supra,
at 13 (whether group activity is required for a finding of strike participation);
and Weaver v. Department of the Navy, 2 MSPB 297, 299 (1980) (due deference
to credibility findings of presiding officials); Baracco, supra, (need for showing
of harm in alleged procedural irregularities).
10a
APPENDIX D—OPINION AND DECISION OF THE
MERIT SYSTEMS PROTECTION BOARD
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PHILADELPHIA REGIONAL OFFICE
THOMAS D. ROBINSON, ET AL.
Vv.
DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION
Initial Decision Numbers:
PHO075281F0991 (Kitts)
PHO075281F0978 (Clarke)
PH075281F2008 (Robinson)
PHO75281F1002 (Newman)
PHO75281F1001 (Neal)
PHO075281F1107 (Kapp)
Date: January 31, 1983
INTRODUCTION
All six of the appellants involved in this appeal were employed
as air traffic control specialists at the Philadelphia International
Tower, Philadelphia, Pennsylvania, prior to August 3, 1981. All
six were subsequently removed from their positions by the
Department of Transportation, Federal Aviation Administration
(F.A.A.), for their alleged participation in the August, 1981
nationwide strike by the members of the Professional Air Traffic
Controllers Organization (hereinafter PATCO). Each appellant
was also charged with being absent without leave (AWOL) for
lla
Appendix D
several days during the early weeks of August, 1981. Each
appellant filed a timely appeal of his dismissal, and the appeals
were consolidated pursuant to § C.F.R. Section 1201.36(b). The
consolidated hearing in this matter took place in Philadelphia,
Pennsylvania on September 21-22, 1982.
JURISDICTION
An employee may appeal to the Merit Systems Protection
Board from any action, which is made appealable to the Board
under any law, rule, or regulation, § U.S.C. Section 7701(a). The
law provides that an employee in the competitive service who is
not serving a probationary period may appeal an action removing
' him from the Federal service, 5 U.S.C. sections 7511(a)(1)(A),
7512(1}) and 7513(d). The record shows that the appellants were
employees in the competitive service, that they were not serving
in probationary periods, and that they were removed from their
positions with the Department of Transportation. Accordingly,
I find that these appeals are acceptable for adjudication.
ANALYSIS AND FINDINGS
In order to have its removal decision sustained, the agency
has the burden of establishing the reason for the action by a
preponderance of the evidence, 5 U.S.C. Section 7701(c)(1)(B).
This is defined as:
That degree of relevant evidence which a
reasonable mind, considering the record as a whole,
might accept as sufficient to support a conclusion
that the matter asserted is more likely to be true
than not true.
————
l2a
Appendix D
5 C.F.R. Section 1201.56(c)(2).
The agency stated that the reasons for the instant action were
in letters which were nearly identical except for the particular
specifics of time and dates applicable to each appellant. The
specific times and dates will be dicussed in connection with each
individual appellant, but the general form read as follows:
Reason 1: Violation of 5 U.S.C. 7311, which states
in pertinent part, ‘“‘An individual may not accept
or hold a position in the Government of the United
States . . . if he . . . participates in a strike against
the Government of the United States . . .""; and
18 U.S.C. 1918, which makes participation in a
strike against the government of the United States
a crime for which a sentence of imprisonment can
be imposed.
Specification: Beginning at approximately 7 A.M.
EDT, on August 3, 1981, a nationwide strike by
air traffic controllers occurred. Beginning at ___
EDT, on August ___, 1981 when you failed to
report for duty, until the present, you participated
in a strike against the United States Government.
Reason 2: Unauthorized Absence
Specification: Beginning first at the to
shift on August ___., 1981, you failed to report
for your scheduled tour of duty. On August ____,
1981 you were sent a telegram that an illegal strike
was in progress, and that you must return to duty
for your regularly scheduled shift. You failed to
l3a
Appendix D
return to duty, and instead remained absent
without authorization.
The agency, in seeking to prove its case against appellants,
relied heavily on the testimony of Thomas P. Hamill, who was,
at the time of appellants removal, Deputy Chief at the Philadelphia
International Tower.
The appellants sought alternate sanctions against the agency.
Specifically, the appellants made a motion that they be granted
judgment because of the agency’s failure to produce for deposition,
or as a witness, Chief of the Philadelphia International Tower,
Robert J. Beckelman, Jr. In addition, the appellants have moved
that they be granted judgment, or in the alternative, that the
testimony of Mr. Thomas Hamill be stricken, because of the
agency’s shifting representations as to the knowledge of Mr. Hamill
had about the events under examination.
The appellants have cited Fuidler v. Department of the
Treasury, MSPB Order No. SF07528090107 (January 28, 1982),
as authority for the appropriateness of sanctions in the instant
appeal. Moreover, the appellants hav- questioned the veracity of
the agency’s representations on Mr. Beckelman’s alleged iliness.
However, the crucial fact in this motion is that Beckelman was
not, at the time he was requested for deposition, a federal
employee. He was, therefore, no longer associated with the agency
which was a party, nor was he a party himself, and the agency
was not obligated to produce him. See 5 C.F.R. Section 1201.33;
S$ C.F.R. Section 1201.72. I note that appellants could have
requested Mr. Beckelman for deposition or as a witness by the
subpoena process provided for in § C.F.R. Section 1201.81.
The appellants originally requested that the agency provide
l4da
Appendix D
Thomas P. Hamill, the Deputy Chief at the Philadelphia
International Tower, for purposes of deposition. The agency
refused to produce the deputy chief of the Philadelphia
International Tower stating that the deputy tower chief had no
information relevant to the matter before the Board. Subsequently,
the agency produced Hamill as its only witness at appellants’
hearing.
Appellants argue that the agency made a false statement, and
that an appropriate sanction for such conduct should be ;udgment
for the appellants, or the striking of Hamill’s hearing testimony.
The agency stated that its representation that Hamill had no
information on the matter under appeal was contained in a
standardized response to a large number of requests from various
appellants throughout the agency’s Eastern Region for the
deposition of a large number of agency officials including the
Secretary of Transportation. The agency contends that due to
the impact the strike had upon its operations, it attempted to avoid
depositions of any of its personnel other than Facility Chiefs.
The method used was a generalized response that the Facility
Chiefs were the individuals with the most knowledge concerning
the adverse actions. The agency concedes that its statement that
Hamill knew nothing about the actions was not applicable and
should not have been offered.
However, the agency points out that when, in May 1982,
Mr. Beckelman could not be produced for purposes of deposition,
the agency offered Hamill for that purpose. I note that as long
ago as April 1, 1982, the agency submitted a proposed witness
list which included the name of Thomas P. Hamill. Moreover,
Hamill’s name appears on the letter of proposed removal as the
individual the appellants should contact in order to review the
aati
15a
Appendix D
material used to support the proposed actions. In view of the
foregoing, I find, since that aside from the one denial by the
agency, it otherwise indicated that Hamill did have knowledge
of the action under appeal; and, it did offer him for the purposes
of deposition, no sanctions of any kind are appropriate with respect
to Hamill and his testimony will be permitted to stand.
I note that the representative of the instant group of appellants
had made the same motions during the course of the two hearings
conducted in August 1981. At that time, I indicated that, if
requested, I would issue a subpoena for Beckelman and order
Mr. Hamill deposed, and the agency indicated it would not oppose
this procedure. Appellants’ representative declined to avail himself
of this opportunity, and I must regard him as having been on
notice that this procedure was available in the instant cases.
Appellants have alleged that the agency committed a number
of harmful! errors in the processing of their removals.
5 U.S.C. Section 7701(c)(2) provides that an agency’s decision
may not be sustained by the Board if ‘‘the employee . . . (A) shows
harmful error in the application of the agency’s procedures in
arriving at such decision . . ’’ The statute places upon the appellant
the burden of establishing as an affirmative defense that the agency
committed procedural error and that the error was harmful. See
William E. Parker v. Defense Logistics Agency, 1 MSPB 489
(1980).
The Board indicated in Parker, supra, that harmful error
concept could be stated as follows:
The question is whether it was within the range
of appreciable probability that the error had a
l6a
Appendix D
harmful effect upon the outcome before this
agency.
5 C.F.R. Section 1201.56(c)(3) provides a definition for
harmful error which is as follows:
Error by the agency in the application of its
procedures which, in the absence of a cure of that
error might have caused the agency to reach a
conclusion different than the one reached.
This section places the burden upon the appellant to show that
the error was harmful.
Appellants argued that there was harmful procedural error
in that the agency issued appellants a Letter of Intent rather than
a Letter of Proposal. Appellants contended that there is a
difference between a Letter of Intent and a Letter of Proposal
in that the former implies a fixed purpose whereas the latter is
only tentative and can be altered. The question of whether there
was prejudgement in the instant case will be addressed below,
and that issue aside, the appellants’ representations with respect
to whether a Letter of Intent or a Letter of Proposed Action was
issued is a matter of semantics. In form, the letters to appellants
from Mr. Beckelman were Notices of Proposed Removal, in that
they informed appellants of the reasons why the actions were being
proposed, designated a place where they could review the material
that the agency had relied on, and, otherwise outlined appellants’
rights if they wished to dispute the merits of the action. The terms
‘*proposed action’’ or ‘‘proposed removal’’ appear several times
in the course of the letters. On August 11, 1981, appellants
responded to what they characterized as the ‘‘proposed removal!
action’’ and the ‘‘proposed action,’’ in such a way as to
17a
Appendix D
demonstrate that they regarded the letters as proposals, each raising
various issues and questions with respect to them, showing an
awareness they could dispute the proposed actions.
Since the letters were on their faces, Letters of Proposed
Removal, and, since appellants have not shown how this
mislabeling caused the agency to reach decisions different from
that which it did, I find no harmful error in these cases.
Appellants also alleged that there was harmful error in these
cases in that the proposing official and the deciding official was
the same person, Robert J. Beckelman, Jr. Appellants assert that
unless there are separate individuals to perform the functions of
proposing official and deciding official, there is a denial of due
process. There was, prior to the passage of the Civil Service Reform
Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978), a
requirement that a final decision on an adverse action be made
by a higher ranking official than the proposing official. See 5
C.F.R. Section 752.202(f)(1978). However, neither that law, nor
the regulations issued to implement it, mandate such a two stage
system at the agency level. See 5. C.F.R. Part 752 (1981). See
also Sibert v. Department of Health, Education, and Welfare,
4 MSPB 132 (1980); Miller v. Department of the Air Force, MSPB
Order No. BN0O75209070 (November 30, 1981); McGee v.
Department of Health ana Human Services, MSPB Order No.
AT07528110274 (April 14, 1982); O’Neil v. Department of
Transportation, MSPB Order No. BN07528110063 (June 21,
1982); Pinto v. Department of Labor, MSPB Order No.
DE0752800140 (May 11, 1982). Since neither the law nor the
applicable regulations require that the proposing official and
deciding official be different persons, and since appellants have
shown no specific harm from Beckelman having acted in both
capacities, I find no harmful error in this regard.
i8a
Appendix D
Appellant advanced a series of arguments with respect to the
seven days accorded them for the purpose of replying to charges
in the advance notice. Appellants argued that: the statute, /.e.,
5 U.S.C. Section 7513(b) calls for at least thirty days between
the advance notice and the effective date of the removal; seven
days is the minimum time permissible for an agency to grant;
the burden of proof is upon the agency to demonstrate that the
time accorded to appellant is reasonable; and, in the instant cases
seven days was unreasonable.
The appellants challenged the agency’s decision to allow them
only seven (7) days in which to respond to their proposed removals,
rather than the normal thirty (30) days provided for in 5 U.S.C.
Section 7513. The agency explained that it used the shortened
notice period exception provided for in the statute for criminal
charges, 5 U.S.C. Section 7513(b). The Board will sustain a
decision taken after a shortened notice period of at least seven
days if the agency shows that when it acted, there was reasonable
cause to believe that the employee had committed a crime for
which a sentence of imprisonment could be imposed, see David
v. Tennessee Valley Authority, MSPB Order No. AT075281 10206
(May 10, 1982), and Land v. Federal Aviation Administration,
MSPB Order No. CH07528110154. (July 21, 1982).
The Board has determined that the agency’s ‘‘reasonable
belief’’ that a crime was committed need not be based on an arrest
or police investigation, but can be based on the discovery of
‘*egregious act detrimental to the accomplishment of the agency’s
mission,’’ Byrd v. United States Postal Service, MSPB Order No.
NY07528110314 (August 23, 1982) and Martin v. Department of
the Treasury, MSPB Order No. AT075209044 (June 1, 1982).
Further, reasonable cause is commonly defined as ‘‘a suspicion
founded upon circumstances sufficiently strong to warrant a
19a
Appendix D
reasonable man’s belief that the charge is true.’’ Black’s Law
Dictionary, 1431 (rev. 4th ed. 1968). I find that in light of the
appellants’ absence without explanation, and the events of August
3-6, 1981, of which the Board has taken official notice, see
Ketchem v. Department of Transportation, MSPB Order No.
DA075281F0713 (May 28, 1982) the agency’s belief that appellants
had committed a crime was reasonable, see 18 U.S.C. Section
1918, and its use of the ‘‘crime exception’”’ shortened notice period
was proper.
Appeilants also raised another issue with respect to the seven
days notice. They allege that seven full days are required, the
day on which the notice is received being excluded from the
computation. The seven full days extend to the last minute of
the seventh day, and where the action is effective, the required
seven days notice has not been given and the appellant is entitled
to relief.
Appellant Neal received his Advance Notice on August 7,
1981 and his letter of decision was issued on August 17, 1981,
therefore he was accorded the full seven days to make a reply,
and this issue does not pertain to him.
While none of the other appellants appear to have been
accorded the full seven days prescribed by statute, I note that
all of them did have an opportunity to reply and took advantage
of it. None has come forward with any evidence that they would
have submitted an additional reply by the date of the decision,
and none has demonstrated how the agency’s error harmed them
or caused the agency to come to a decision different from the
one that it did. It is clearly the appellants’ burden to show that
such an error occurred and that it was indeed harmful, and they
must do so by a preponderance of the evidence, see Pinto v.
Department of Labor, MSPB Order No. DE0752801040 (May
11, 1982). In this case, appellants have not shown how the loss
20a
Appendix D
of one day of their period prejudiced them as they have not argued
that they intended to reply to the charges or produce evidence
concerning the charges on the 7th day. Further, the Board has
concluded that the issuance of a decision letter before the
expiration of the 7th day, when the employee has been afforded
an opportunity to respond to the charges, is not of itself harmful
error warranting reversal of the agency’s action, Johnson v.
Department of the Treasury, MSPB Order No. DC075209213
(August 27, 1982). Accordingly, this argument must be dismissed.
This finding also disposes of appellants’ allegation of harmful
error with respect to the denial of official time. In the context
of an adverse action, official time is time during working hours
in which an employee against whom an adverse action is proposed,
is, while still being paid by the agency excused from his regular
duties, so that he can prepare a reply to the charges against him.
The purpose of official time is to give an employee a fair chance
to prepare a defense, unhindered by his regular duties, and not
having to worry about possible disciplinary action for not having
performed his normal assigned work. Since appellants did not
present themselves for work, they were engaged in no duties from
which they could be excused. In any event, appellants have not
shown that they asked for official time and had the request refused,
nor have they demonstrated, how the granting of official time
would have altered the outcome before the agency.
It was also asserted that the agency violated the law by
providing that the appellants’ reply could be personally or in
writing or both: appellants pointed out that the statute provides
for a reply to be made either orally or in writing, or both. They
argue that since a personal reply would not necessarily be made
orally, e.g., a written reply could be handed over in person, and
that an oral reply could be made other than in person, e.g., over
2la
Appendix D
the telephone, they were misled with respect to their procedural
rights. The appellants assert that this language effectively ruled
out an oral presentation by a representative without the presence
of the appellants, or of a telephonic presentation. I note that the
advance notices in all of these appeals do permit the appellants
to have a representative or an attorney in making a reply, and
they do not require the appellants to be present during any reply.
Moreover, none of the appellants testified that they had wanted
to make a reply telephonically, or through a representative without
them being present.
I find that aside from the fact that the appellants’ contentions
with respect to the matter are purely semantical, they have failed
to demonstrate how this use of language in the notice harmed
them or caused the agency to reach decisions different from the
ones that it would have. Appellants were granted the right to make
replies, they did make these replies, and they have not
demonstrated how the use of the term ‘‘personally’’ prevented
them from making a reply that could possibly have caused the
agency to make decisions different from the ones that it did.
Accordingly, I find no harmful error in this regard.
The appellants also raised the issue of their duty status during
the notice period. Appellants specifically pointed out that the
statute and the regulations provide that a separate notice of
proposal and decision be made when an individual is to be excluded
from the work place during the notice period of an adverse action.
In the instant case, the agency made no provision for appellants’
status, and given the particular facts of these cases, I find it was
unnecessary that it do so. The central issues in these appeals revolve
around appellants’ absence from the work place, absences which
continued throughout the notice period. Appellants argue that
the agency, pursuant to President Reagan’s orders, would not
22a
Appendix D
have permitted them to return to work. However, there is nothing
in the record to show that appellants ever attempted to return
to work during this period. The Board has issued a number of
decisions on various issues with respect to suspensions, and has
consistently reversed decisions wherein employees were
unjustifiably suspended during the notice period. Cuellar v. United
States Postal Service, MSPB Order No. SF075299045 (November
13, 1981); Poole v. Department of the Army, MSPB Order No.
PH07528010007 (July 30, 1982). Moreover, the Board has reversed
agency actions which amounted to a constructive suspension.
Kenny v. Internal Revenue Service, MSPB Order No.
PH07528090154 (January 3, 1982); Mosely v. Department of the
Navy, 4 MSPB 220 (1980). However, in all of these cases the
employee’s absence from work was involuntary. In the instant
cases, there is reason to believe that appellants failed to be at
work on their own volition. Therefore, I find it appropriate to
analyze these appeals in terms of the enforced leave cases. In an
appeal where there is an allegation that the placement of an
employee in an enforced leave status is actually an appealable
adverse action, three specific questions must be answered in order
to find the appeal within the Board’s appellate jurisdiction. As
set forth in Mosely, op. cit., these are:
1. Was the appellant placed on leave without his
consent?
2. Was the appellant in fact ready, willing, and
‘ able to work during the period of leave?
3. Was the enforced leave used in a personal
disciplinary type situation?
Analogizing appellants’ absence during the notice period to an
23a
Appendix D
enforced leave situation, I find that appellants have failed to
adduce any evidence that their absence from work during this
time frame was involuntary, or that they were ready, willing and
abie to work, or that they attempted to return to work at any
time. Accordingly, I find that appellants cannot be considered
to have been suspended during the notice period, and I find no
harmful error in this regard.
The agency utilized the appellants’ Time and Attendance
Cards and Personnel Logs to demonstrate the absence of the
appellants on the days charged. These documents were kept in
the ordinary course of business and even though they are hearsay
I find them to be reliable, both because they are regular business
documents and because they were supplemented by the direct,
sworn testimoy of Thomas Hamill. These documents are found
in Tab 11 of the Agency’s Submission in each of the appellants’
files.
Richard V. Kitts
Richard Kitts was charged with being AWOL and with
participating in a strike as of 7:00 p.m. on August 6, 1981. Mr.
Hamill, testifying from memory, and utilizing the Time and
Attendance Cards and Personnel Logs, stated that appellant was
scheduled for the 7:00 a.m. to 3:00 p.m. shift on every day from
August 3, 1981 through August 6, 1981, that he did not arrive
for work on any of those days, that he was not on approved leave,
and that he did not contact the agency to explain his absence.
Moreover, appellant was observed picketing on August 5, 1981.
Appellant states that in June 1981 he had indicated that he
would not participate in a strike, and that thereafter he was
ostracized and harassed to such a degree that by August 3, 1981
24a
Appendix D
he was suffering from acute anxiety. He claims that he was taking
prescribed tranquilizers during this period and the combination
of drugs and anxiety induced sickness rendered him incapable
of handling air traffic. Appellent alleges that he did not call the
agency to inform them of his illness because it would have been
futile, and that his request for sick leave would have been rejected.
Moreover, appellant believed he was fired as of 11:00 a.m. August
5, 1981, and, therefore made no attempt to return to work.
In view of the facts that appellant had never requested sick
leave for the days in question, and that no medical evidence was
submitted by him, I find that the agency was correct in considering
him AWOL based on the information in its possession. Lucero
v. Department of the Air Force, MSPB Order No. DE07528110117
(October 25, 1982). While appellant may certainly submit medical
documentation to excuse or explain his charged absences from
work to the Board without first submitting it to the agency, see
Zeiss v. Veterans Administration, MSPB Order No. NY075209017
(September 1, 1981), and I may determine that this evidence
warrants excusal of his absences, see i.e., Hockman v. American
Battle Monuments Commission, MSPB Order No. SF07528110757
(July 30, 1982), appellant submitted no objective medical evidence
at the hearing. Therefore, I find that this assertion does not excuse
his absence without leave.
With respect to his allegation that he kept away from work
because of harassment and concern about the consequences, |
note that even assuming, arguendo, that such anxiety would excuse
his absence from work, it does not explain his active participation
in the strike as evidenced by his having picketed.
Of course, if appellant’s actions were involuntary, the charge
cannot be sustained, because ‘‘one who refused to cross a picket
2Sa
Appendix D
line by reason of physical fear does not act on principle,’’ and
is therefore not considered a striker, NLRB v. Union Carbide
Corp., 440 F.2d 54, 56 (4th Cir.), cert. denied 404 U.S. 826 (1971).
See also Plain Dealer Publishing Co. v. Cleveland Typographical
Union, $20 F.2d 1220, 1228 (6th Cir. 1975), cert. denied 428 U.S.
909 (1978). The Board acknowledged that the question of duress,
harassment or intimidation might be an issue in several of these
appeals, see Trick v. Federal Aviation Administration, MSPB
Order No. DC075281F1144 (December 17, 1981), and recently
promulgated the standard by which such claims must be analyzed.
In Johnson v. Department of Transportation, MSPB Order No.
DC075281F0998 (November 10, 1982) (hereinafter Johnson), the
Board concluded that
{ijn order for a Federal employee charged with
participation in a strike against the government
to establish defense of coercion or duress, he must
demonstrate, by a preponderance of the evidence,
that his failure to report for work was the result
of a threat or other intimidating conduct, directed
toward him, sufficient to instill in him a reasonable
fear of physical danger to himself or others which
a person of ordinary firmness would not be
expected to resist.
Appellant admits there were no physical threats, but testified to
a good deal of social ostracism and harassment. However, the
Board in Johnosn, specifically ruled that such factors are not
sufficient cause to render involuntary an employee’s participation
in an illegal strike.
Some general dicussion of what the agency must prove to
meet their evidentiary burden on this charge is appropriate.
26a
Appendix D
Participation in a strike against the government is defined as ‘‘an
actual refusal in concert with others to provide services to one’s
employer,’’ United Federation of Postal Clerks v. Blount, 325
F. Supp. 879, 884 (D.D.C.), aff'd. 404 U.S. 802 (1971). In
Schapansky v. Department of Transportation, MSPB Order No.
DA075281F 1130 (October 28, 1982) (hereinafter Schapansky), the
Board determined that the existence of a strike was common
knowledge, and that the agency can establish a prima facie case
of an employee’s voluntary participation therein by presenting
evidence of his or her unauthorized absence from duty during
the strike. See also Jones v. Tennessee Valley Authority, MSPB
Order No. AT07528010300 (February 19, 1982) and Duckett and
Yardley v. Tennessee Valley Authority, MSPB Order No.
AT07528010325 (February 19, 1982). In a recent case, the Courts
further defined striking against the government as ‘‘picketing with
co-workers during scheduled work hours,’’ American Postal
Workers Union v. United States Postal Service, 682 F.2d 1280,
1284 (9th Cir. 1982). In the instant case, the evidence introduced
with respect to picketing indicates that the incidents involving
appellant were on his duty hours. However, in a long line of cases
dealing with whether an individual’s action can be deemed to be
part of a ‘concerted activity’’ under the National Labor Relations
Act, the courts have held that an individual employee’s actions
can be deemed to be part of a concerted activity if they “‘have
some relation to group action in the interest of employees,”’
Anchortank, Inc. v. NLRB, 618 F.2d 1153, 1161 (Sth Cir. 1980).
And, “‘it is also necessary ...that the employee’s actions
themselves at least contemplate some group activity,’’ Pelton
Casteel, Inc. v. NLRB, 627 F.2d 23, 28 (7th Cir. 1980). The
individual’s actions must amount to action on behalf of other
employees, Aro, Inc. v. NLRB, 596 F.2d 713, 717 (6th Cir. 1979)
and embody some element of ‘‘collected activity,’’ Krispy Kreme
Doughnut Corp. v. NLRB, 635 F.2d 304, 307 (4th Cir. 1980).
27a
Appendix D
Further, as the Board noted in Schapansky, supra, there need
not be any overt physical actions by the employee to find that
he or she acted in concert with other simiarly situated employees.
See also Hugh H. Wilson Corp., 171 NLRB 1040, 1046 (1968).
In the instant case I find that the agency has demonstrated
by a preponderance of the evidence that appellant was Absent
Without Authorization and that he participated in a strike.
John E. Neal
Appellant Neal was charged with being AWOL and with
participating in a strike as of 3:12 p.m. on August 6, 1981. The
appellant was on annual leave for August | and 2, 1981; on regular
days off on August 3 and 4, 1981; was scheduled for the 7:00
a.m. to 3:00 p.m. shift on August 5, 1981; and, was scheduled
for the 3:12 p.m. shift on August 6, 1981, his deadline shift.
Appellant did not report for duty on either August 5 or 6, 1981,
was not on approved leave, and did not contact the agency to
explain his absence. Moreover, appellant was observed picketing
on either August 3 or 4, 1981.
In the proceedings before the agency appellant alleged that
he had been on his regular day off. However, he did not raise
the issue before the Board, and | find that he was not on his
regular day off on August 6, 1981. In his hearing testimony
appellant indicated that he did not return to work because he
thought he had already been fired and because of his fears as
to what might happen. As analyzed above, it was appellant's
obligation to report for work as scheduled in the absence of leave
from the agency to be off duty. Appellant’s objective impressions
of President Reagan’s speech did not constitute such leave.
Appellant’s anxieties with respect to his safety was admittedly
28a
Appendix D
not based on any specific threats, but his own feelings, and I
find that these vague fears do not constitute involuntary absence
under the Johnson standard.
Accordingly, I find that the agency has demonstrated by a
preponderance of the evidence that appellant was Absent Without
Leave and that he participated in a strike.
The agency moved that I take official notice that there was
a nationwide strike by air traffic controllers from August 3, 1981,
running through August 6, 1981. The Board has already
determined that there exists in the totality of circumstances
surrounding the events of August 1981 sufficient information to
find that the criteria contained in 5 C.F.R. Section 1201.67 are
met, and that official notice may be taken that there was a strike
by the Professional Air Traffic Controllers Organization (PATCO)
starting on August 3, 1981, and continuing at least through August
6, 1981. However, appellants may present evidence to refute the
existence of a strike during this period. Ketchem v. Department
of Transportation, MSPB Order No. DA075281F0713 (May 28,
1982). Since the appellants did oppose the agency’s motion with
respect to the issue of official notice, I must examine the respective
contentions of the parties bearing on this issue. Appellants focus
in on President Reagan’s speech of 11:00 a.m. on August 3, 1981:
This morning at 7:00 a.m. the union representing
those who man America’s air traffic control
facilities called a strike. . . I must tell those who
failed to report for duty this morning they are in
violation of the law and if they do not report for
work within 48 hours they have forfeited their jobs —
and will be terminated. 17 Weekly Comp. Pres.
Doc. 847 (August 3, 1981).
29a
Appendix D
This statement was followed by one on August 5, 1981 by
Secretary of Transportation, Drew Lewis, in which he remarked
that as of 11:00 a.m. on that date, the strike was over. Appellants
conclude from these statements that not only were they fired as
of 11:00 a.m. on August 5, 1981, and the strike was over, but
because they were fired and there was no strike, they had no
obligation to come to work thereafter, and they cannot be properly
charged with either AWOL or striking after that date.
However, I find that there has been no demonstration that
the strike ended on August 5, 1981. The crucial question focused
upon by the Board and the courts is when had the deadline shift
passed for the greater part of the controllers. It was found that
as of August 6, 1981 a substantial number of controllers could
still have returned to work. I note that in the instant case 5 of
the 6 appellants could have returned to work on August 6, 1981
or later.
Whatever the subjective impressions of the instant appellants
with respect to the public statements of the Secretary and the
President, the fact still remains that they were obligated, both
by the nature of the employer-employee relationship and by statute,
to report to work.
Richard C. Newman
Appellant Newman was charged with being AWOL and with
participating in a strike as of 3:12 p.m. on August 3, 1981. Hamill
gave evidence that appellant was scheduled for the 3:12 p.m. to
11:12 shift on August 3, 1981, and for the 2:48 p.m. to 10:48
p.m. shifts on both August 4 and 5, 1981; and, that appellant
did not arrive for work on any of these days, that he was not
on approved leave, and that he did not contact the agency to
30a
Appendix D
explain his absence. Moreover, appellant was observed picketing
on August 5, 1981. With respect to this latter point, appellant’s
representative complained that the agency was attempting to foist
a forgery on the Board. Hamill had based his testimony that
appellant was picketing on a list that he had made up after he,
and the Chief at the Tower, Robert Beckelman, had observed
mass picketing on August 5, 1981. There were two sets of initials
on this document, Hamill’s and Beckelman’s, and they appeared
to have been written by two different hands. At the instant hearing
Hamill testified that he had subscribed both sets of initials in order
to indicate that both he and Becke!man agreed that the names
checked on the list had been observed picketing. Appellant’s
representative claimed that Hamill had testified at earlier hearings
involving George Walker and Francis Turek that Beckelman had
prepared the documents. A review of the transcripts of those
hearings does not indicate any such representation by Hamill,
but, at most, a contention that they went over the list together.
In all the hearings Hamill consistently indicated that he carried
on the clerical function. Moreover, while the initials appear to
have been made with a different hand, I find it unlikely that Hamill
was trying to emuiate Beckelman’s signature, since Mr.
Beckelman’s handwriting is ornate while Hamill’s is unadorned.
I find that there is no indication that Hamill forged these
documents or that his testimony on the August 5, 1981 picketing
was unreliable.
Appellant admitted his absences and awareness of the strike.
He testified that he did not go to work principally because he
feared reprisals such as obscene phone calls; however, he admitted
that he had no anxieties over a physical attack. Appellant stated
that another reason he stayed out was because he did not want
to endanger some of the social relationships which his wife felt
3la
Appendix D
to be important. Appellant denies he was acting in concert with
the other controllers.
However, as noted above in Kitts, the essence of concerted
activity is that an individual’s actions must amount to action on
behalf of other employees.
Appellant’s actions meet all of these criteria. The object of
any strike by employees is to put pressure on their employer to
meet their terms by denying to the employer their services. On
August 3, 1981, PATCO attempted to pressure the Department
of Transportation into acceding to the terms proposed for a
negotiated agreement by PATCO. The strategy of PATCO was
to have its members absent themselves from work and thereby
render the Federal Aviation Administration incapable of
accomplishing its chartered mission: to insure the safe and efficient
flow of air traffic. Appellant chose not only to absent himself
from work at a time contemporaneous with the other air traffic
controllers, but also to picket the agency in the company of fellow
union members. He thereby materially aided PATCO’s objectives
of denying the services of controllers to the agency and of
demonstrating the union’s solidarity.
In the instant case I find that the agency has demonstrated
by a preponderance of the evidence that appellant was Absent
Without Authorization and that he participated in a strike.
Robert L. Kapp
Robert L. Kapp was charged with being AWOL and with
participating in a strike as of 3:12 p.m. on August 6, 1981. The
appellant had regularly scheduled days off on August 3 and 4,
1981; was scheduled for a 6:50 a.m. to 2:50 p.m. shift on August
32a
Appendix D
5, 1981, and a 2:48 p.m. to 10:48 p.m. shift on August 6, 1981,
this last being his deadline shift. As with a number of other
appellants, Kapp alleged harmful! error because of non-receipt
of the Advance Notice in the Letter of Decision, or both. As with
Robinson, he alleged harmfui error in that the advance notice
misstated the time of the shift that he was due in. These contentions
will be analyzed below in the general section.
Appellant alleged that he was sick and nervous at the time
of the strike and was not in any condition to work. He points
out that he was sick earlier in July, had called in, and had been
granted sick leave. Aside from his testimony, the only evidence
that appellant offered was a letter dated September 7, 1982 from
Paul C. Vitt, D.O., who stated that appellant complainted of
vague, somatic symptoms characteristic of anxiety neurosis and
depression, and that the doctor recommended he take a leave of
absence. Aside from the fact that the letter was composed a year
after the event, the most salient characteristics of this document
is that appellant’s complaints are wholly subjective; that Dr. Vitt
is an Osteopath with no apparent background in psychiatry or
psychology; and, that the letter does not state that appellant was
disabled for work.
Moreover, appellant did not allege illness as an excuse during
the agency process to remove him, and while he claims to have
attempted to call in, he made no effort to try to reach another
number of which he was aware, when the primary number proved
busy. This lack of effort was in the face of the knowledge that
there was a strike on and that he might be considered a striker
if he did not properly request leave. That appellant was aware
of the correct method of obtaining leave is obvious from his
successful efforts in this regard during July.
33a
Appendix D
When questioned about why he had not brought this defense
up in his appeal to the Board, appellant stated that at that time
he had been advised that coercion was a better defense. I must
view appeliant’s admission in this regard as reflecting on the bona
fides of his claim of illness.
Accordingly, I find that appellant’s claim of illness, in view
of both the quality of the evidence used to support it, and the
belated manner in which the issue was raised, does not excuse
his absence. Accordingly, I find the agency to have demonstrated
by a preponderance of the evidence that appellant participated
in a strike and was absent without authorization.
John W. Clarke
John W. Clarke was charged with being AWOL and with
participating in a strike as of 7:00 a.m. on August 8, 1981.
Appellant was on the midnight shift on August 3, 1981, i.e., 11:00
p.m., August 2, 1981 to 7:00 a.m., August 3, 1981. He also was
scheduled for midnight shifts on August 4 and 5, 1981, with
regularly scheduled days off on August 6 and 7, 1981. His 7:00
a.m. shift on August 8, 1981 was his deadline shift.
Appellant alleges he was sick throughout this period and
presented some evidence to that effect.
His first exhibit concerned rectal bleeding from which he
suffered in 1979. Appellant claims he suffered from the same
symptoms at the time of the strike. However, he offered no
objective evidence to support that contention. He presented
evidence that he was diagnosed as having suffered from anxiety
depression on August 4, 1981, and had been prescribed a
34a
Appendix D
tranquilizer. Subsequently, at the end of the month he had been
prescribed even stronger tranquilizers.
Appellant alleges that when he left on August 3, 1981 he
had told his supervisor, that he was sick. While the evidence of
record supports that he made that contact with his supervisor,
I note that the leave was disapproved. Appellant and three other
members of the midnight shift, when ordered to remain on duty
because of understaffing, refused, all claiming to be ill. Since
this event occurred concurrent with the onset of the strike, the
agency had reasonable grounds to doubt appellant’s claim.
Moreover, appellant did not call in to report sick for any shifts
that week until August 8, 1981, and, in the meantime, had been
observed picketing. Even then, it was his wife who called in. While
documentary evidence has been submitted to indicate that a call
was made to Philadelphia International Tower, there was no
evidence that leave had been approved. While appellant did raise
the defense of sickness during the agency proceeding against him,
he did not then adduce any of the evidence presented at the
hearing. Accordingly, I find that appellant was in an Unauthorized
Absence status as of August 8, 1981.
However, while some of appellant’s actions are indicative
of strike support, I only took official notice of the existence of
a strike through August 6, 1981, and the agency presented no
evidence that it continued beyond that point. Accordingly, I find
that the agency has not proven that appeilant engaged in a strike.
Thomas D. Robinson
Thomas D. Robinson was charged with being AWOL and
with participating in a strike as of 3:00 p.m. on August 6, 1981.
The appellant was on regularly scheduled days off on August 3
35a
Appendix D
and 4, 1981; was scheduled for the 7:00 a.m. to 3 p.m. shift on
August 5, 1981, and was scheduled for the 2:48 p.m. to 10:48
p.m. shift on August 6, 1981. Appellant alleges that because the
advance notice misstates the time of the shift tha he was due in,
harmful error was committed. This contention will be analyzed
in the general section below.
Appellant admits his absences but alleges that he was sick
with the flu on August 4 and 5, 1981; that he tried to contact
the agency, but failed because the line was busy; that he heard
that he had been fired and thereafter believed it was futile to
attempt to go in.
I find appellant’s explanation of his absences to be
disingenuous. Appellant did not raise the issue of his alleged illness
either in the agency proceedings or in his initial appeal before
the Board. Moreover, at the hearing he presented no objective
medical evidence to substantiate his claim of illness. Furthermore,
I find it incredible, assuming arguendo, that he was really sick,
that he would not make more vigorous attempts to inform the
agency, at least to the extent of finding another telephone number
that he could call. It is equally unfathomable that any individual,
haveing a purportedly good excuse for his absence, would assume
that the agency would not accept his reason without at least trying
to bring his explanation before the agency.
Accordingly, I find that the agency has demonstrated by a
preponderance of the evidence that appellant was Absent without
Leave and that he participated in a strike.
The appellants who raised a sickness defense contend that
they had no obligation to come to work when they were incapable
of controlling traffic, that the agency had no need of their services.
36a
Appendix D
However, there was testimony that the agency could have utilized
them in non-controller positions, and I find that it is well within
the managerial prerogative of an agency to determine to what
tasks an employee shall be assigned, and the appellants who
absented themselves, deprived the agency of that prerogative.
Some appellants alleged they did not receive their advance
notice, and some assert that they did not receive their notice of
decision. However, I note that all appellants did make replies
to the charges in the advance notices, and all did file timely appeals
to the Board. Therefore, I find no harmful error in regard to
these allegations.
Some of the appellants were charged with being AWOL and
on strike at times other than they actually were. It is argued that
this is harmful error because the appellants were not informed
of the charges against them. However, I note that the errors
involved only a few minutes. Kapp was charged with being AWOL
from the 3:12 p.m. shift on August 6, 1981 whereas he was actually
scheduled for the 2:48 p.m. shift on that day. Robinson was
charged with being absent from the 3:00 p.m. shift whereas he
actually was scheduled for the 2:48 p.m. schedule on that day.
This error did the appellants no factual harm since neither alleged
they attempted to show up at any time on August 6, 1981. I find
that it did no procedural harm since the shifts they were charged
with missing and the shifts they actually missed are permutations
of the basic 3:00 p.m. to 11:00 p.m. shift which they actually
missed.
The essential function of a notice of adverse action is to
adequately inform the employee of the basis of the proposed action
with sufficient particularity to apprise him of allegations he must
refute or acts he must justify. Burkett v. United States, 402 F.2d
37a
Appendix D
1002 (Ct. Cl. 1968); Englehardt v. United States, 125 Ct. Cl. 603,
606 (Ct. Cl. 1953); Hendricks v. Department of the Interior, MSPB
Order No. SF07528090167 (February 23, 1982); JoAnson v.
Department of the Air Force, MSPB Order NO. DA07528110347
(April 23, 1982). The two specifications against appellants were
essentially that they had been on strike and in an Unauthorized
Absence status beginning 3:00 p.m. August 6, 1981 to the present.
Since the evidence is clear that appellants had not been at work
for any of their shifts scheduled after August 2, 1981, I find that
they had sufficient notice of the charges against them to be able
to dispute them.
With respect tot he penalty meted out, it is well established
that Unauthorized Absence from duty constitutes proper grounds
for removal since, by its very nature, it disrupts the efficiency
of the service. Bolling v. Department of the Air Force, MSPB
Order No. NY07528090034 (December 28, 1982); Desiderio v.
Department of the Navy, 4 MSPB 171 (1980). However, the agency
based its removal action principally upon the fact that appellant
participated in a strike. I find that removal for such an offense
is particularly justified since it is Unauthorized Absence in concert
with others, the effect of which was to disrupt the agency in its
mission of controlling air traffic throughout the United States.
In United States v. Restor, et al., Crim. No. 81-187, Slip. Op.
at 8-9, (W.D. Pa. January 13, 1981) Judge Diamond took official
notice that the strike by the air traffic controllers resulted in
hardship and inconvenience to the public, increased unemployment
of innocent people and a loss of millions of dollars in the airline
industry, further stating that the controllers’ conduct was
‘*uniquely anti-social’’. I note that the Board in Schapansky found
that the penalty of removal was appropriate for an air traffic
controller who had struck because the offense impacted directly
on airline safety. In sum, I find that a strike against the police
38a
Appendix D
powers of the government, i.e., the law enforcement and public
health and safety functions, particularly in defiance of a
prohibiting statute, is so serious a trangression of the employer-
employee relationship, that no penalty other than removal would
be appropriate.
In Schapansky, supra, at 11-12, the Board noted that 5 U.S.C.
Section 7311(3) seems to mandate removal as a penalty for federal
employees who have participated in a strike against the federal
government, a conclusion buttressed by the decision of the Ninth
Circuit in American Postal Workers Union v. United States Postal
Service, 682 F.2d 1280 (9th Cir. 1982). The ruling in Schapansky
is consistent with the Board’s decisions in other appeals involving
statutorily mandated minimum penalties for specified offenses,
i.e., misuse of government vehicles and Hatch Act violations. In
Woody v. General Services Administration, MSPB Order No.
SF07528110028 (June 2, 1981), the Board held that since 31 U.S.C.
Section 638a(c)(2) requires that a government employee who is
found to have misused a government vehicle be suspended for
not less than a month, an agency cannot choose a lesser penalty.
In Special Counsel v. Dukes, MSPB Order No. HQ12060020
(October 29, 1981), the Board would not approve a settlement
agreement that would have imposed a lesser penalty than the
statutory minimum prescribed by 5 U.S.C. Section 7324.
Therefore, having found that appellants Robinson, Kapp,
Kitts and Newman participated in a strike, I find that removal
is an appropriate penalty.
With respect to appellant Clarke, although | have found that
the agency has not sustained the charge of striking against him,
nonetheless, I note that the agency demonstrated that his absences
in the latter part of the week of August 3, 1981 continued a pattern
of AWOL begun during the period of the strike. Hamill testified
39a
Appendix D
without rebuttal as to the deleterious effect the absences of the
appellants had on agency operations, particularly with respect to
airline operations effecting the general public. Under these
circumstances, I find that the agency was justified in imposing
the removal penalty with : «spect to Clarke as well as the appellants
found to have participated in the strike and been AWOL.
DECISION
The agency’s decision to remove Robert Kapp is sustained.
The agency’s decision to remove Thomas Robinson is
sustained.
The agency’s decision to remove John Neal is sustained.
The agency’s decision to remove Richard Newman is
sustained.
The agency’s decision to remove Richard Kitts is sustained.
The agency’s decision to remove John Clarke is sustained.
NOTICE
This decision is an initial decision and will become a final
decision of the Merit Systems Protection Board on March 7, 1983,
unless a petition for review is filed with the Board or the Board
reopens the case on its own motion.
Any party to this appeal, the Director of the Office of
Personnel Management, or the Special Counsel may file a petition
for review of this decision with the Merit Systems Protection
40a
Appendix D
Board. The petition for review must set forth specific objections
to the initial decision, supported by references to applicable laws
or regulation, and with specific reference to the record. The
petition for review must be filed with the Secretary to the Merit
Systems Protection Board, Washington, D.C. 20419 no later than
the date set forth above.
After providing an opportunity for response by other parties,
the Board may grant a petition for review when it is established
that:
(1) New and material evidence is available that,
despite due diligence, was not available when the
record was closed; or
(2) The decision of the Presiding Official is based
On an erroneous interpretation of statute cr
regulation.
4ia
APPENDIX E — TEXT OF PROVISIONS INVOLVED
UNITED STATES CONSTITUTION
Fifth Amendment
**No person . . . shall be deprived of life, liberty
or property, without due process of law . .
Sixth Amendment
‘In all criminal prosecutions the accused shall
enjoy the rights . . . to be confronted with the
witnesses against him... .”
STATUTES
5 U.S.C. § 7513. Cause and procedure
(a) Under regulations prescribed by the Office
of Personnel Management, an agency may take
an action covered by this subchapter against an
employee only for such cause as will promote the
efficiency of the service.
(b) An employee against whom an action is
proposed in entitled to—
(1) at least 30 days’ advance written
notice, unless there is reasonable cause to
believe the employee has committed a crime
for which a sentence of imprisonment may
be imposed, stating the specific reasons for
the proposed action;
42a
Appendix E
(2) a reasonable time, but not less than
7 days, to answer orally and in writing and
to furnish affidavits and other documentary
evidence in support of the answer;
(3) be represented by an attorney or other
representative; and
(4) a written decision and the specific
reasons therefor at the earliest practicable
date.
(d) An employee against whom an action is
taken under this section is entitled to appeal to
the Merit Systems Protection Board under section
7701 of this title ....
(e) Copies of the notice of proposed action,
the answer of the employee when written, a
summary therefor when made orally, the notice
of decision and reasons thereof, and any order
effecting an action covered by this subchapter
together with any supporting material, shall be
maintained by the agency and shall be furnished
to the Board upon its request and to the employee
affected upon the employee’s request.
5 U.S.C. § 7701. Appellate procedures.
(a) An employee, or applicant for
employment, may submit an appeal to the Merit
43a
Appendix E
Systems Protection Board from any action which
is appealable to the Board under any law, rule,
or regulation. An appellant shall have the right—
(1) to a hearing for which a transcript will be kept;
and
(2) to be represented by an attonrey or other
representative.
Appeals shall be processed in accordance with
regulations prescribed by the Board.
(b). . . in any case involving a removal from
the service, the case shall be heard by the Board,
an employee experienced in hearing appeals, or an
administrative law judge... .
(c)(1) Subject to paragraph (2) of this
subsection, the decision of the agency shall be
sustained under subsection (b) only if the agency’s
decision—
(B) ... 1S supported by a
preponderance of the evidence.
(2) Notwithstanding paragraph (i), the
agency’s decision may not be sustained under
subsection (b) of this section if the employee or
applicant for employment—
44a
Appendix E
(A) shows harmful error in the
application of the agency’s procedures in
arriving at such decision;
(B) shows that the decision was based
on any prohibited personnel practice
described in section 2302 (b) of this title; or
(C) shows that the decision was not in
accordance with law.
5 U.S.C. §7703. Judicial review of decisions of the Merit Systems
Protection Board
(a)(1) Any employee or applicant for
employment adversely affected or aggrieved by a
final order or decision of the Merit Systems
Protection Board may obtain judicial review of
the order or decision.
x * *
(b)(1) Except as provided in paragraph (2) of
this subsection, a petition to review a final order
or final decision of the Board shall be filed in the
United States Court of Appeals for the Federai
Circuit. Notwithstanding any other provision of
5 law, any petition for review must be filed within
30 days after the date the petitioner received notice
of the final order or decision of the Board.
* * *
(c) In any case filed in the Court of Appeals
45a
Appendix E
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;
(2) obtained without procedures required
by law, rule, or regulation having been
followed; or
(3) unsupported by substantial
evidence... .
REGULATIONS
OFFICE OF PERSONNEL MANAGEMENT REGULATIONS
ISSUED PURSUANT TO 5 U.S.C. § 7513(a)
5 C.F.R. § 752.404. Procedures
(a) Statutory entitlements. An empioyee
against whom action is proposed under this subpart
is entitled to the procedures provided in 5 U.S.C.
7513(b).
(b) Notice of proposed action. (1) The notice
of proposal shall inform the employee of his or
her right to review the material which is relied on
to support the reasons for action given in the
46a
Appendix E
notice. The agency may not use material which
cannot be disclosed to the employee or his or her
representative or designated physician under
§ 297.108(c)(1) of Part 297 of this title to support
the reasons in the notice.
(c) Employee’s answer. (1) The agency shall
give the employee a reasonable amount of official
time to review the material relied on to support
its proposal and to prepare an answer and to secure
affidavits, if he or she is otherwise in an active
duty status.
(2) The agency shall designate an official to
hear the employee’s oral answer who has authority
either to make or recommend a final decision on
the proposed adverse action... .
(d) Exceptions. (1) 5 U.S.C. 7513(b) authorizes
an exception to the 30 days’ advance written notice
when the crime provision is invoked. The agency
may require the employee to furnish any answer
to the proposed action, and affidavits and other
documentary evidence in support of the answer
within such time as under the circumstances would
be reasonable, but not less than seven days. When
the circumstances require immediate action, the
agency may place the employee in a nonduty status
with pay for such time, not to exceed ten days,
as is necessary to effect the action.
_ 47a
Appendix E
(2) The advance written notice and
opportunity to answer are not necessary for
furlough without pay due to unforeseeable
circumstances, such as sudden breakdowns in
equipment, acts of God, or sudden emergencies
requiring immediate curtailment of activities.
* * *
(e) Representation. 5 U.S.C. 7513(b)(3)
provides that an employee covered by this part is
entitled to be represented by an attorney or other
representative ....
(f) Agency decision. In arriving at its written
decision, the agency shall consider only the reasons
specified in the notice of proposed action and shall
consider any answer of the employee and/or his
or her representative made to a designated official.
The agency shall deliver the notice of decision to
the employee at or before the time the action will
be effective. The notice shall tell the employee of
his or her appeal rights.
« * *
OTHER REGULATIONS ISSUED BY OFFICE OF
PERSONNEL MANAGEMENT
5 C.F.R. § 630.401 Grant of sick leave.
An agency shall grant sick leave to an
employee when the employee:
* * *
48a
Appendix E
(b) Is incapacitated for the performance of
duties by sickness, injury, or pregnancy and
confinement;. .. .
5 C.F.R. §630.403 Supporting evidence.
An agency may grant sick leave only when
suported by evidence administratively acceptable.
Regardless of the duration of the absence, an
agency may consider an employee’s certification
as to the reason for his absence as evidence
administratively acceptable. However, for an
absence in excess of 3 workdays, or for a lesser
period when determined necessary by an agency,
the agency may also require a medical certificate,
or other administratively acceptable evidence as
to the reason for the absence.
MERIT SYSTEMS PROTECTION BOARD REGULATIONS
5 C.F.R. §1201.33
Every Federal agency shall make its employees
available to furnish sworn statements Or to appear
as witnesses at the hearing when requested by the
presiding official. When providing such statements
or testimony, witnesses shall be in official duty
status.
5 C.F.R. $1201.56 Burden and degree of proof, affirmative
defenses.
(a) Burden and degree of proof. (1) Agency:
49a
Appendix E
Under 5 U.S.C. 7701(c)(1) the agency action must
be sustained by the Board if:
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(ii) . . . is supported by a preponderance
of the evidence.
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(b) Affirmative defenses of the appellant.
Under 5 U.S.C. 7701(c)(2), the Board is required
to overturn the action of the agency even where
the agency has met the evidentiary standard set
forth is subsection (a), above, in any case where
the appellant:
(1) Shows harmful error in the
application of the agency’s procedures in
arriving at such decision;
(2) Demonstrates that the decision was
based on any prohibited personnel practice
described in 5 U.S.C. 2302(b); or
(3) Shows that the decision was not in
accordance with law.
(c) Definitions. For purposes of this section,
the following definitions shall apply:
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Appendix E
(2) Preponderance of the evidence: That
degree of relevant evidence which a
reasonable mind, considering the record as
a whole, might accept as sufficient to support
a conclusion that the matter asserted is more
likely to be true than not true.
(3) Harmful error: Error by the agency
in the application of its procedures which,
in the absence or cure of the error, might have
caused the agency to reach. The burden is
upon the record as a whole the error was
harmful, i.e., cased substantial harm or
prejudice to his/her rights.
(d) Moving forward. In cases where action has
been taken against an employee by the agency, the
agency shail present its case first. The appellant
may then present evidence.
5 C.F.R. §1201.72. Explanation and scope.
(a) Explanation: Discovery is the process apart
from the hearing whereby a party may obtain
relevant information from another person.
Including a party, which has not otherwise been
provided. Relevant information means evidence
having any tendency to make the existence of any
fact that is of consequence to the determination
of the action more probable or less probable than
it would be without the evidence. This information
is obtained for the purpose of assisting the parties
in developing, preparing, and presenting their
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Appendix E
cases. The Federal Rules of Civil Procedure may
be used as a general guide for discovery practices
in proceedings before the Board where appropriate
except as to matters specifically covered by these
regulations. The federal rules shall be interpreted
as instructive rather than controlling in any event.
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RULES OF APPELLATE PROCEDURE
Rule 38. Damages for Delay
If a court of appeals shall determine that an
appeal is frivolous, it may award just damages and
single or double costs to the appellee.
RULES OF CIVIL PROCEDURE
Rule 11. Signing of Pleadings, Motions, and Other Papers;
Sanctions
Every pleading, motion, and other paper of
a party represented by an attorney shall be signed
by at least one attorney of record in his individual
name, whose address shall be stated . . . . The
Signature of an attorney or party constitutes a
certificate by him that he has read the pleading,
motion or other paper; that to the best of his
knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact and
is warranted by existing law or a good faith
argument for the extension, modification, or
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Appendix E
reversal of existing law, and that it is not interposed
for any improper purpose, such as to harass or
to cause unnecessary delay or needless increase in
the cost of litigation . . . If a pleading, motion,
or other paper is signed in violation of this rule,
the court, upon motion or upon its Own initative,
shall impose upon the person who signed it, a
represented party, or both, an approriate sanction,
which may include an order to pay to the other
party or parties the amount of the reasonable
expenses incurred because of the filing of the
pleading, motion, or other paper, including a
reasonable attorney’s fee.
Rule 37. Failure to Make or Cooperate in Discovery: Sanctions
(b) Failure to comply with order.
(2) Sanctions by court in which action is
pending. If a party or an officer, director, or
managing agent of a party or a person designated
under Rule 30(b)(6) or 31(a) to testify on behalf
of a party fails to obey an order to provide or
permit discovery, including an order made under
subdivision (a) of this rule or Rule 35, or if a party
fails to obey an order entered under Rule 26(f)
the court in which the action is pending may make
such orders in regard to the failure as are just,
and among others the following:
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Appendix E
(A) An order that the matters regarding
which the order was made or any other
designated facts shall be taken to be
established for the purpose of the action in
accordance with the claim of the party
obtaining the order;
(B) An order refusing to ailow the
disobedient party to support or oppose
designated claims or defense, or prohibiting
him from introducing designated matters in
evidence;
(C) An order striking out pleadings or
parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or
rendering a judgment by default against the
disobedient party;
(D) In lieu of any of the foregoing orders
or in addition thereto, an order treating as
a contempt of court the failure to obey any
orders except an order to submit to a physical
Or mental examination;
(E) Where a party has failed to comply
with an order under Rule 35(a) requiring his
to produce another for examination, such
orders as are listed in paragraphs (A), (B),
and (C) of this subdivision, unless the party
failing to comply shows that he is unable to
produce such person for examination.
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In lieu of any of the foregoing orders or in
addition thereto, the court shall require the party
failing to obey the order or the attorney advising
him or both to pay the reasonable expenses,
including attorney’s fees, caused by the failure,
unless the court finds that the failure was
substantially justified or that other circumstances
make an award of expenses unjust.
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55a
APPENDIX F—EXCERPT FROM PETITIONER'S BRIEF TO
UNITED STATES COURT OF APPEALS
SUMMARY OF ARGUMENT
1. Petitioners were denied due process. In order to prevent
the deposition of the Deputy Tower Chief, Hamill, the agency
had wilfully lied to the Presiding Official that Hamill had no
information relevant to the matter before the Board. At the hearing
the agency offered Hamill as its sole witness who knew everything.
This false statement constituted a violation of 18 U.S.C. 1001
relative to false statements and 18 U.S.C. 1505 relative to
obstruction of justice.
Despite this the Presiding Official denied Petitioners motion
to prevent his testimony and to impose sanctions granting the
appeals, Hamill was permitted, over Petitioners objection to testify
as to anything and everything including the remotest hearsay. The
agency did not and was not required by the Fresiding Official
to call any employee who had personal knowledge.
In April 1982 the Presiding Official had directed the
deposition of the Tower Chief Beckelman by May 31, 1982. When
the agency failed to produce Beckeiman Petitioners moved for
sanctions on June 4, 1982 granting the appeal. Despite the fact
that the agency did not oppose the motion the Presiding Official
did not advise Petitioners’ attorney until September 20, 1982, the
day before the hearing, that he would not grant the motion for
sanctions.
Th. ~~ ssiding Official was biased against Petitioners and so
conducted jimself as to favor and defend the agency and deny
Petitioners a fair hearing. Misconduct on the part of the agency
is rationalized or ignored. The fact of the Agency’s burden of
proof is overlooked. Petitioners are burdened by a special standard
On
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Appendix F
of proof--evidence must be ‘‘objective’’. No testimony by
Petitioners is to be believed. Documents submitted by Petitioners
also do not meet the Presiding Official’s standard of proof. On
the other hand, with respect to the Agency the Presiding Official
condones false statements, forgery, concocted documents and the
failure to call knowledgeable witnesses and accepts the remotest
hearsay.
2. The deciding official lacked authority to dismiss the
Petitioners.
The Petitioners submitted documentary evidence that the
Tower Chief lacked authority to act and the Agency failed to
rebut this document. Accordingly the actions were unauthorized
and invalid. This applies to all Petitioners. In addition the
Petitioner submitted deposition testimony of a Regional
representative to prove that there was no authority to dismiss
anybody on a specification of August 3, 4 or before 11:00 a.m.
of August 5, 1981. Since Newman was dismissed with a
specification of August 3, 1981 the action was improper and
Newman should be reinstated for that reason too.
3. Petitioners Robinson, Newman and Kapp received no
notice of intent to remove. Failing such notice they are entitled
to relief.
4. Petitioners were not on strike. At the tower in question,
the Philadelphia Tower, the strike ended 11:00 a.m. August 5,
1981. All except Newman were charged with striking August 6,
1981. Since there was no strike in progress at that time they are
entitled to relief.
5. Petitioners Kapp and Robinson were dismissed for a reason
Appendix F
other than alleged in the notice of intent. They were discharged
for failing to appear at a shift at which they were not scheduled
to appear and are therefore entitled to relief.
6. The dismissals of Kitts and Neal were not effective
inasmuch as the notice of dismissal was not received before the
effective date of removal as required by regulations.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.