Opposition Brief — Russell v. Department of Transportation

— Supreme Court, U.S.

.

i. FILED

(3 | MAR 28 1986

No. 85-1229 JOSEPH F. SPANIOL, JR.

CLERK

——as

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

WILLIAM S. RUSSELL, ET AL., PETITIONERS

V.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

DaAviID M. COHEN

SANDRA P. SPOONER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly affirmed the

decisions of the Merit Systeins Protection Board sustaining

petitioners’ removal for participating in a strike against the

United States and for being absent without leave.

2. Whether the court of appeals correctly assessed attor-

ney fees and costs of $500 jointly and severally against each

petitioner and their counsei

(1)

TABLE OF CONTENTS

Page

eee eke a cbs aK aes cev ees ees l

EE ee I

a ra dha W Re dss eas censeecccecs 2

eee eG AEN Ws bobs e ss dsaccoccens 10

ee ey Geb bh 6 bas sees cece ens 16

TABLE OF AUTHORITIES

Cases:

Adams vy. Department of Transportation,

FAA, 735 F.2d 488, cert. denied, No. 84-258

ee ee yak bay see esrccnes 15

Anderson v. Department of Transportation,

FAA, 735 F.2d 537, cert. denied, ) ov. 84-259

ee cca aaa sees tees sesscceces 7

Asberry vy. United States Postal Service,

eG ks ceases cerca sensees 14

Bartel Dental Books Co. v. Mapleton

House Books, inc., No. 85-7754

SO ee 12

Beachboard vy. United States,

ee cae a cccereseene 14

Campbell vy. Department of Transportation,

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

EE EY ee eee 7

Christie v. United States,

i wees cee neeees 10

Connell v. Sears, Roebuck & Co..,

EE 14

IV

Page

Cases—Continued:

Gateway Coal Co. v. United Mine Workers,

ca a. Cale eh peek eas Gea esa 10

Illinois v. Board of Educ.,

GS ©. SU. TEs voc ceewcccescccssacsesces 11

Johnson v. Department of Transportation,

FAA, 13 M.S.P.R. 652, aff'd, 735

NN oe ee ie daa Wels 6, 8, 9, 13

Leone v. United States,

5 hk KA eee Oe 10

Letenyei v. Department of Transportation,

fo We 9 8 Ee eer 14

Martel v. Department of Transportation,

FAA, 735 F.2d 504, cert. denied, No. 84-258

CS Se. | errr nee rer re 8, 13, 14

McGucken v. United States, 407 F.2d

1349, cert. denied, 396 U.S. 894 ............. 10

Moylan v. Department of Transportation,

FAA, 735 F.2d 524, cert. denied, No. 84-258

A | a nay rere rere 15

Onnen v. United States, 524 F. Supp.

Neen Sas iow 11

PATCO v. Federal Labor Relations

re a a be eer ee 11

Robinson v. Department of Transportation,

FAA, cert. denied, No. 85-951

Fe DEE bc cd Cave sadaneebesscanbawes 12

V

Page

Cases—Continued:

Schapansky vy. Department of Transportation,

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

| err rere eee a 7,9, tt, 14

United States v. Huckabee, 83 U.S.

te A wre rer eer re ee 10

United States v. Thompson, 749 F.2d 189 .. 10-11

Wright v. United States, 728 F.2d 1459,

cert. denied, No. 83-6869 (Oct. 1, 1984) ...... 14

Constitution, statutes and rules:

eg eS are ere re 15

FMF esis a eA ah ae bon ek Kae oe ee 1]

F Res FD GAG oe AAR SASSO 11

(gies oat Re err cn ai eee ee 1]

Oe Gas EE. WS Ake oe Reese ae cee Ree aes 12

Be NE 5650 4454 ooo en ee ee 12

Fed. R. App. P. : ;

i | | Pr re re er Tr 12

Se bn A awe e aes bee ee 12

In the Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-1229

WILLIAM S. RUSSELL, ET AL., PETITIONERS

V.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION

ON PETITION FOP A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. I1-I8) is

reported at 771 F.2d 493. The opinions of the Merit Systems

Protection Board (separately paginated in Pet. App. H) are

reported in the Merit Systems Protection Reporter. !

JURISDICTION

The judgment of the court of appeals was entered on

August 30, 1985. Petitioners’ petition for rehearing was

denied on October 17, 1985 (Pet. App. Ji). The petition for

! Russell vy. Department of Transportation, 17 M.S.P.R. 210 (1983);

Houlihan vy. Department of Transportation, FAA, 17 M.S.P.R. 229

(1983); Oswill{and Hetherington, et al.| v. Department of Transporta-

tion, 17 M.S.P.R. 348 (1983); Henry v. Department of Transportation,

FAA, 19 M.S.P.R. 70 (1984). The decisions of the Board’s presiding

officials in these cases (separately paginated in Pet. App. G) are

unreported.

(1)

2

a writ of certiorari was filed on January 15, 1986. The

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

1254(1).

STATEMENT

Petitioners challenge their removal from federal employ-

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

background of the strike and the subsequent litigation are

set forth in our Brief in Opposition in Campbell v.

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

to one of a number of o*lier petitions arising out of the

strike.”

1. Petitioners were removed from their positions as air

traffic controllers on the grounds that they participated in a

strike against the United States and were absent without

leave during the strike. They appealed to the Merit Systems

Protection Board (MSPB or Board), where they were

afforded a hearing. The agency established a prima facie

case of strike participation by demonstrating that petition-

ers were absent without leave during a strike of general

knowledge.’ Petitioners contended before the Board that

they did not voluntarily participate in the strike, but rather

were absent under duress.

7A copy of our response in Campbell has been sent to counsel for

petitioners.

3The standard applied below requires that the agency at all times bear

the burden of persuasion with respect to strike participation; the agency

must show by a preponderaiice of the evidence that the employee

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

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

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

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

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

going foward with evidence to rebut that showing necessarily shifts to

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

dence to counter that showing.” 735 F.2d at 482.

ee wn

3

a. Petitioner Russell had been scheduled for annual

leave on August 2 and 3, 1981. His supervisor telephoned

him early on August 3, the first day of the strike, and told

him that his annual leave was cancelled. Russell responded

by saying, “ ‘i think you know my position,’ ” and did not

report for work on August = or thereafter. Pet. App. G14-

Gi5(Russel!).‘ In response t» the agency’s notice proposing

his removal, Russell claimed that he absented himself

because he was a trainee and believed that the union would

impede his professional advancement if he did noi join its

strike (id. at G15-G16).> Russell admitted that no threats

were made to him personally, however. The record contains

no direct evidence to support his allegations; Russell did not

testify in his own behalf at the Board hearing (id. at G17-

G1I8). Rather, he submitted the testimony of his psychia-

trist, who said simply that Russell was generally “fearful”

about his future as an air traffic controller; the psychiatrist

also testified that Russell was unable to make a decision

about whether to participate in the strike, and that Russel!

had never mentioned any fear of physical or personal harm

(id. at G18-G20).

‘All of the presiding officials’ decisions are contained in Appendix G

to the petition; since this portion of the appendix is not consecutively

numbered, our citations will refer to page numbers within the decision

indicated—e.g., “Pet. App. G15 (Russeli).”

‘It was not until Russell appealed to the court of appeals that he

alleged that he was also conce: ned about his safety (see Pet. App. 12).

The only record evidence cited in support of this claim was his written

response to the agency’s proposal to remove him, which was devoted

almost exclusively to his claim that he feared damage to his career. The

only reference :0 a fear of physical harm was his assertion that, after

June 1981 but before the August 1981 strike, “ ‘[t]hreats both physical

and career oriented were made to scabs and those who were not suppor-

tive of the strike.” ” See Resp. Statement in Lieu of Br. 6-7.

4

b. Petitioner Hetherington was removed for striking on

August 4 and 5, 1981 (Pet. App. G37 (Hetherington)). On

August 3, 1981, his day off, Hetherington received a tele-

gram from the FAA advising him that a strike was in

progress and that he should report for duty; he did not (id.

at G38). When Hetherington responded to the agency’s

notice proposing his removal, he claimed that he wes con-

fused and/or coerced (id. at G37-G38). No specifics of the

coercion defense were provided, however: Hetherington

elected not to testify, and proffered only the hearsay testi-

mony of individuals who stated that he had told them that

he was apprehensive and fearful regarding the strike (id. at

G38-G39).

c. Petitioner Henry was charged with strike participa-

tion beginning on the first day of the strike, August 3, 1981,

and continuing through the date of his notice of proposed

removal, August 6, 1981 (Pet. App. G18-G19 (Henry)).

Henry also alleged that he acted under duress in being

absent without leave during the strike, but he too elected

not to testify to this effect (id. at G20-G21, G27). Instead,

his counsel contended that Henry was fearful and that his

fears were based upon an alleged incident in which two

union members threatened him and one grabbed him

around the neck (id. at G21-G23). However, another air

traffic controller who was present during the incident testi-

fied that one of the pro-strike controllers may have pushed

or jabbed Henry on the shoulder only to make a point (id. at

G23-G24). (This controller also testified that he expe-

rienced the same pressures but decided not to participate in

the strike because he had too much to lose (id. at G24).)

Henry’s supervisor, who witnessed the incident as well,

testified that no physical contact was made (id. at G25). The

agency official charged with deciding whether to remove

Henry investigated the incident and found that the two

(non-threatening) controllers present remembered the dis-

cussion, but did not recall any physica! or violent contact

5

(id. at G21-G22). He testified that he had received no

reports of threats or violence at Henry’s facility (id. at G21).

d. Petitioner Houlihan was charged with striking begin-

ning on the first day of the strike, August 3, 1981 (Pet. App.

G15-G16(Houlihan)). He responded to the agency’s charges

by claiming that he feared he would not progress as a trainee

controller if he did not participate in the strike (id. at

G16-G18). Houlihan also alleged that he feared for his

persona! safety (id. at G19). He admitted he had not

received any threats directed toward him, but claimed he

had heard rumors of threats to other controllers (id. at

G19-G20).° He admitted participating in picketing (id. at

G20). F

e. Petitioner Oswill was removed for striking on August

6, 1981 (Pet. App. G29 (Oswili)). He admitted in his

response to the agency’s notice of proposed removal that he

deliberately took disqualifying medication on August 3 and

4 so that he would be disqualified from working his sche-

duled shifts on the first two days of the strike (id. at G33-

G34). Nevertheless, his supervisor arranged for transporta-

tion so that he could come to work and allowed Oswill to

sleep on duty on those days (id. at G35). On August 5,

Oswill called to request sick leave, was told that only his

supervisor could approve sick leave, and then never con-

tacted his supervisor. Instead, Oswill went to the union

headquarters that day and appeared at the picket line

(ibid.). He did not report for his next regularly scheduled

shift on August 6 (id. at G29-G30). Osv 1 contended before

the Board that his unauthorized absence during the strike

was the result of duress. He claimed that he had previously

been subjected to verbal abuse and social ostracism and that

®While Houlihan contended that a strike supporter threatened to

shoot anyone who returned to work during the strike, he also admitted

On cross-examination that this statement was made after the strike

began, that he had already begun to withhold his services, and that the

threat was impersonal and indirect (Pet. App. G20 (Houlihan)).

6

he and his wife had received threatening telephone calls (id.

at G32).

2. a. The Board’s presiding officials rejected the coer-

cion claim of each petitioner.

Each decision noted that the legal standards to be applied

to claims of coerced participation in a strike against the

government were set forth by the Board in Johnson v.

Department of Transportation, FAA, 13 M.S.P.R. 652

(1982), aff'd, 735 F.2d 510 (Fed. Cir. 1984). In Johnson, the

MSPB adopted and the court of appeals approved a “rea-

sonable man” standard for establishing involuntary partic-

ipation in a strike. The Board found (13 M.S.P.R. at 660

(footnotes omitted)):

[I]n order for a Federal employee charged with partici-

pation in a strike against the Government to establish a

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.

Under this standard, “menacing tones or language, fear of

‘financial ruin’ or jeopardy to career advancement, exuber-

ant moral suasion, or any vexation, annoyance or pressure

resulting in a state of mental perturbation, reluctance to act

or a choice of inherently unpleasant situations, may not

suffice to render involuntary” an individual’s participation

in a strike (id. at 658-659 (footnotes omitted)).

The presiding officials then concluded that none of the

petitioners offered evidence of threats or other intimidating

conduct directed toward him sufficient to meet the Johnson

standard (Pet. App. G21-G22 (Russell), G35-G36 (Oswill),

7

G37-G39 (Hetherington), G27-G29 (Henry), G21-G23

(Houlihan)). Because petitioners failed to come forward

with convincing evidence that their unauthorized absences

were for reasons other than strike participation, the presid-

ing officials found that the agency had proved the charges

against petitioners by a preponderance of the evidence (see

page 2 note 3, supra). On petitions for review filed by both

parties, the full Board (decisions separately paginated in

Pet. App. H) affirmed the decisions of the presiding officials

to the extent they sustained petitioners’ removals.’

b. Petitioners then sought review in the United States

Court of Appeals for the Federal Circuit. The petitions were

among approximately 3,500 similar petitions filed by dis-

charged air traffic controllers. All but nine cases were

stayed pending the court’s decisions in those “lead cases.”

On May 18, 1984, a five-judge panel of the court of appeals

issued {1 decisions sustaining the removals of all but one of

the petitioners in the lead cases.

A number of the unsuccessful petitioners filed petitions

for a writ of certiorari; all were denied. See, e.g., Scha-

pansky v. Department of Transportation, FAA, 735 F.2d

477 (Fed. Cir.), cert. denied, No. 84-258 (Nov. 13, 1984);

Anderson v. Department of Transporiation, FAA, 735

F.2d 537 (Fed. Cir.), cert. denied, No. 84-259 (Nov. 13,

1984); Campbell v. Department of Transportation, FAA,

735 F.2d 497 (Fed. Cir.), cert. denied, No. 84-78 (Oct. 9,

1984). After this Court denied th» petitions in the lead cases,

the court of appeals lifted the stay of the other pending

appeals.

’The agency petitioned for review by the full Board of the presiding

officials’ decisions that petitioners Russeli, Henry, and Houlihan were

constructively suspended (and thus entitled to back pay) between the

agency’s notice proposing their removals and the agency’s decision to

remove them. On this issue, the full Board reversed and no further

review was sought.

8

3. In one of the early decisions issued by the court of

appeals after the stay was lifted, the court affirmed the

decisions of the Board with respect to these petitioners (Pet.

App. I1-I8).

The court of appeals noted, regarding petitioner Russell,

that claims of duress relating to career advancement were

rejected in its lead decisions in Johnson v. Department of

Transportation, FAA, supra,and Martel v. Department of

Transportation, FAA, 735 F.2d 504 (Fed. Cir.), cert.

denied, No. 84-258 (Nov. 13, 1984).® It pointed out that

Russell had earlier admitted that no specific threats were

made to him; that he did not argue that he was threatened

with physical harm until his appeal; that he admitted picket-

ing; that his psychiatrist testified Russell never mentioned

®The petitioner in Marte/ had argued inter alia that his participation

in the strike should be excused because he acted in the belief that he

would experience on-the-job harassment from pro-strike controllers

who could eventually ensure that he was suspended or removed from his

position (735 F.2d at 509). The court rejected petitioner’s contention

that the Board’s Johnson decision foreclosed the duress defense except

where there were threats of physical harm. The court indicated, how-

ever, that it was only in “exceptional circumstances” that it “may” be

possible to prove that strike participation was involuntary when the

threats of harm were of a nonphysical nature (id. at 509 n.9), and that

the proof of such threats must be “especially strong” since “ ‘[s]triking

against the government is a grave offense * * * and a criminal offense

* * * [that] disrupts the functioning of the government itself” ” (id. at

509 (quoting Schapansky, 735 F.2d at 484)). It noted that “(t]he goals of

the strikers were ‘to inflict harm of the highest magnitude upon the

national transportation system, to cause great public inconvenience, to

injure the national economy, and to place at risk the public safety’ ”

(ibid.). The court concluded (ihid.):

Certainly, [petitioner’s] vague and speculative worries of future

job harassment, leading to possible job suspension or removal,

fall far short of the type of objective evidence which would suffice.

A person of ordinary firmness would reasonably be expected to

resist such fears, rather than join an illegal strike for which the law

provides criminal penalties.

9

fear from physical harm; and that his argument that subjec-

tive, even if unreasonable, fear should rebut the govern-

ment’s prima facie case would leave nothing of the Johnson

“reasonable man” test. Pet. App. 12-13. With respect to

petitioner Hetherington, the court of appeals found that he

had not met the standard of proof required by Johnson

because his claim of coercion “lacks specifics and is fully

met by the board’s opinion” (id. at 13-14). Regarding peti-

tioner Henry’s claims of coercion through fear of career

damage and physical harm, the court noted that at his

facility there were no reports of picketing, violence, or

threats to any fellow controllers, and that the Board’s opin-

ion “citing, inter alia, Schapansky and Johnsen, supra,

provides ample support for * * * removal” (id. at 14-15).

The similar claim of petitioner Houlihan, who “did not

receive any personal threats,” was also held “properly

rejected” (id. at 15). The court sustained the Board’s finding

that petitioner Oswill’s alleged fear was unreasonable, in

light of evidence diminishing his credibility (id. at 15-16).

The court of appeals found “incredibl[e]” the fact that

petitioners’ counsel relied upon the court’s decisions in the

lead cases for his contention that the government was

required to show “specific intent” as an element of its prima

facie case. The court pointed out that the decisions upon

which petitioners’ counsel :elied expressly stated that proof

of general intent to strike was sufficient. Pet. App. 17-18.

Finally, the court below concluded that, because “the

arguments of petitioners are adequately met by precedents

of lead cases and/or are patently frivolous,” costs and

attorney fees of $500 would be assessed, jointly and sever-

ally, against petitioner and counsel on each appeal (Pet.

App. [8).

10

ARGUMENT

The decision of the court of appeals in this factbound

dispute is correct, does not conflict with the decisions of this

Court or any other court of appeals, and does not merit

further review. The evidentiary standard that petitioners

challenge is mandated by the nature of their conduct and

supported by settled precedent, and the assessment of $500

by the court of appeals is amply justified.

1. Petitioners’ contention (Pet. 24-27) that the court

below applied an improper standard of proof for establish-

ing involuntary strike participation is insubstantial. The

standard requires that an individual who claims that his

strike participation was involuntary demonstrate that his

fears and concerns were reasonable and that they were such

that a person of ordinary firmness would not be expected to

resist them. This standard is consistent with established

precedent and is the product of the considered judgment of

this Court and, now, the tribunals deemed by Congress to

have the expertise necessary to hear and decide the appeals

of federal employees against whom adverse personnel

actions have been taken.®

8The decisions of this Court and the old Court of Claims have

consistently applied an objective standard for duress in similar cases. In

a case involving aclaim that dangerous conditions were believed to exist

at a workplace so as to provide a limited exception to the no-strike

obligation of private sector employees, this Court endorsed the objec-

tive test, holding that “{iJf the courts require no objective evidence that

such [dangerous] conditions actually obtain, they face a wholly specula-

tive inquiry into the motives of the workers.” Gateway Coal Co. v.

United Mine Workers, 414 U.S. 368, 385-387 (1974). Cf. United States

v. Huckabee, 83 U.S. (16 Wall.) 414, 432 (1872). The Court of Claims,

one of the Federal Circuit’s predecessors, also applied an objective

standard for proving duress. See, e.g., Christie vy. United States, 518

F.2d 584, 587 (Ct. Cl. 1975); Leone v. United States, 204 Ct. Cl. 334,

339 (1974); McGucken vy. United States, 407 F.2d 1349, 1351 (Ct. Cl.),

cert. denied, 396 U.S. 894 (1969). Petitioners do not assert that any

court of appeals has used a different standard. See United States v.

11

The standard represents, in any event, a proper allocation

of the burden of proof between the parties in view of the

disruptiveness of petitioners’ actions and the information

available to each party to the proceeding. It is hard to

overstate the disruption caused by petitioners’ strike partic-

ipation. It is reflected by the fact that a federal employee

who engages in a strike violates the oath signed as a condi-

tion of his employment (5 U.S.C. 3333(a)) and commits a

criminal offense punishable by imprisonment for up to one

year (18 U.S.C. 1918). The reason for the oath and the

criminal statute are not difficult to discern, and are particu-

larly appropriate here given the sensitive nature of petition-

ers’ positions. By definition, a strike disrupts the function-

ing of the government itself. Moreover, the “intentional

goals” of the striking air traffic controllers “were to inflict

harm of the highest magnitude upon the national transpor-

tation system, to cause great public inconvenience, to injure

the national economy, and to place at risk the public

safety.” Schapansky, 735 F.2d at 484 (citing PATCO v.

Federal Labor Relations Authority, 685 F.2d 547, 622

(D.C. Cir. 1982) (MacKinnon, J., concurring)).

i is not disputed that petitioners participated in the

strike (see Pet. 7). They insist, however, that they should be

excused if they were afraid to refrain from striking—no

matter how unreasonable their fear and no matter how little

objective evidence of intimidation they present. But the

virtual impossibility of disproving a mental state!® means

that the standard petitioners demand would ensure that

federal empioyees would almost never be removed for

Thompson, 749 F.2d 189, 194 (Sth Cir. 1984); //linois v. Board of Educ.,

606 F. Supp. 385, 390 (N.D. Ill. 1985); Onnen v. United States, 524 F.

Supp. 1079, 1085 (D. Neb. 1981).

To sustain an employee’s removal for misconduct, a federal agency

must prove its charges by a preponderance of the evidence (5 U.S.C.

770 1(c)(1)(B)).

12

strike participation. In light of the widespread disruption

(and danger) caused by strike participation—voluntary or

involuntary—this is an unworkable demand.

2. Petitioners also assert that the court of appeals erred

in imposing sanctions against them because their claims

were not frivolous, and that the imposition of sanctions

here creates constitutional problems and will “chill” the

zealous advocacy of counsel. These contentions are without

merit.!!

a. This Court should not entertain petitioners’ fact-

bound contention (Pet. 16-21) that the court of appeals

erred in determining that their appeals were frivolous.!?

Petitioners are simply wrong in insisting that they presented

On March 10, 1986, this Court denied a petition for a writ of

certiorari making a similar challenge to an assessment under Fed. R.

App. P. 38. Robinson v. Department of Transportation, FAA, No.

85-951. Presumably, the court of appeals’ assessment here was also

under Fed. R. App. P. 38, although it could have been under 28 U.S.C.

1912 or 1927.

'2Petitioners’ cause is, of course, not aided by their insistence that

they were confident they would succeed. Their contention (Pet. 20) that

there is “not a shred of evidence” suggesting that they did not act in good

faith is both irrelevant (Fed. R. App. P. 38 and 28 U.S.C. 1912 do not

provide that sanctions can be imposed only upon a finding of bad faith)

and inaccurate (petitioners knew or should have known that their

appeal would be governed by the court of appeals’ prior decisions). See

Bartel Dental Books Co. v. Mapleton House Books, Inc., No. 85-7754

(2d Cir. Mar. 12, 1986).

Nor can it be persuasively argued (Pet. 15) that, in deciding whether

their appeals were frivolous, petitioners were entitled to rely on the

court of appeals’ decision to hold oral argument. The appeal had

already been filed. In any event, Fed. R. App. P. 34(a) does not preclude

oral argument in frivolous cases; it merely permits the court to decline

to hear oral argument when an appeal is frivolous. A court may wish to

hold oral argument although the case appears frivolous in order to offer

counsel an opportunity to convince it otherwise.

Finally, asking for “substantial” relief cannot transform a frivolous

claim into a nonfrivolous one (see Pet. 14, 20).

13

plausible evidence to the Board of direct threats to them.!3

It is therefore apparent that any objective review of the

record in their cases would have demonstrated that they

could not prevail in the face of the Johnson precedent.

While it is true that the court of appeals in Martel suggested

the possibility that non-physical intimidation might excuse

'3Petitioners’ attempt (Pet. 6-7 n.4, 25-26 n.13) to support their

contention is utterly unconvincing.

The petition makes no mention of petitioners Henry or Russell. The

principal “threat” Henry received is discussed at pages 4-5, supra.

Russell concedes (Pet. 4, 17 2.9) that he did not present any evidence of

direct physical threats, and it is and was frivolous for him to contend

that the testimony of his psychiatrist met the reasonable man standard

(see page 2, supra).

Regarding petitioners Hetherington, rloulihan, and Oswill, the peti-

tion provides citations to excerpts from the record that were attached to

their briefs below. A fair reading of those portions of the record shows

that they do not support petitioners’ claim.

Contrary to petitioner Hetherington’s assertions, the evidence did

not establish that he was coerced by a threat that his house would be

blown up. Petitioner’s friend testified at the hearing before the Board

that he (the friend) jokingly spoke of “fragging” petitioner’s house.

Petitioner himself elected not to testify, so there is no evidence in the

record of how seriously he took the remark or that his subsequent

participation in the strike was precipitated by the remark. See also page

4, supra.

Petitioner Houlihan testified that he feared pro-strike controllers

would jeopardize his career and that he was told that he would “be taken

care of” if he worked during the strike. Petitioner was not the recipient

of any direct threats of harm (see also page 5 note 6, supra). Indeed, he

cites to that part of the record in which he testified that no direct threats

were made. See also page 5, supra.

Petitioner Oswiil’s contention that he was directly threatened is also

without support in the record. Petitioner bases his claim of intimidation

on the fact that a mailbox was thrown through a window in his

neighborhood—even though neither the mailbox nor the window was

his own and he had absolutely no evidence or reason to believe that the

incident was related to the strike or union activity. See also pages 5-6,

supra.

14

strike participation, it noted at the same time that such a

case would have to be “exceptional” and would require

“especially strong” proof (735 F.2d at 509 & n.9). Under

no circumstances could those criteria be met by the record

in these cases: indeed, the court in Martel rejected allega-

tions substantially identical to those made by the petitioners

in these appeals.'*

Petitioners also assert that the fact that the court of -

appeals’ precedents mandated affirmance of the Board’s

decisions in their cases is not a sufficient ground upon which

to impose sanctions for their appeal. This assertion must be

placed in context. The approach adopted by the court of

appeals for handling the literally thousands of appeals by

air traffic controllers was specifically designed to decide

common legal issues in the designated lead cases. This

procedure benefitted both the parties and the court by

establishing at the outset the legal criteria that would have

to be met before a decision of the Board would be reversed.

Counsel and litigants in the air traffic controller appeals

were, as petitioners concede, warned on several occasions

that they should not merely repeat arguments that had

already been rejected by the court and that those who did so

would be subject to sanctions.'® In any event, this case does

‘4s the court below explained (Pet. App. 17-18), petitioners’ conten-

tion (Pet. 18-19) that they distinguished their cases from those before

the court in the lead cases of Schapansky and Letenyei v. Department

of Transportation, FAA, 735 F.2d 528 (Fed. Cir. 1984), was “incredi-

bl[e].”

5Petitioners acknowledge (Pet. 13) that the court of appeals sent

them three separate notices (collected in Pet. App. F) advising them of

the consequences of filing and maintaining frivolous appeals and citing

the court’s precedents on the subject (i.e., Wright v. United States, 728

F.2d 1459, 1460, cert. denied, No. 83-6869 (Oct. 1, 1984); Beachboard v.

United States, 727 F.2d 1092, 1094-1095 (1984); Connell v. Sears,

Roebuck & Co., 722 F.2d 1542, 1553-1555 (1983); Asberry v. United

States Postal Service, 692 F.2d 1378, 1382 (1982)). Moreover, in the

15

not involve an award made on the basis of a frontal attack

on the court’s precedents (conceding their applicability but

asking that they be overruled, or for the express purpose of

preserving the issue for this Court’s review); rather, peti-

tioners disingenuously denied the precedents’ applicability

and mischaracterized the record, forcing the court to review

the record and cases with that handicap. In these circum-

stances, the court’s imposition of modest sanctions was

plainly permissible.

b. Petitioners contend (Pet. 21-24) that the standard

employed to assess sanctions for taking frivolous appeals is

impermissibly vague and chills zealous advocacy and lit-

igants’ First Amendment rights. Petitioners’ argument sug-

gests that no court can assess sanctions to compensate

appellees or to protect its docket from the abuses inherent in

frivolous appeals. Such a proposition is necessarily

unsound. It is, moreover, especially unconvincing to assert

that the standard applied to petitioners’ cases was imper-

missibly vague. Their appeal was deemed frivolous because

their cases were squarely governed by the decisions in the

lead cases, and they had been repeatedly warned that an

appeal under such circumstances would be subject to sanc-

tions. Thus, even if it could be said that frivolous appeals

generally are not easily identified, in this instance the court

of appeals had announced in advance that an appeal such as

petitioners’ would be deemed frivolous. Therefore, peti-

tioners’ claim does not merit review by this Court.

lead air traffic controller cases, the court twice (somewhat obliquely)

warned counsel of its intention to impose sanctions where subsequent

air traffic controller appeals were deemed frivolous in light of the lead

case decisions. See Adams v. Department of Transportation, FAA,

735 F.2d 488, 494, cert. denied, No. 84-258 (Nov. 13, 1984); Moylan v.

Department of Transportation, FAA, 735 F.2d 524, 524 n.*, cert.

denied, No. 84-258 (Nov. 13, 1984).

16

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

David M. COHEN

SANDRA P. SPOONER

Attorneys

MARCH 1986