Petition for Writ of Certiorari — Des Vignes v. Department of Transportation
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: 0 Supreme Court, U.S,
86 -169 FILED
- AUG 1. 1986
IN THE JOSEPH F. SPANIOL, UR.
CLERK
Supreme Court of the United States
October Term, 1986
HAROLD J. DES VIGNES,
Petitioner,
against
DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FEDERAL CIRCUIT
PETITION FOK A WRIT OF CERTIORARI
JACK B. SOLERWITZ
Counsel of Record and Attorney for
Petitioner
170 Old Country Road
Mineola, NY 11501
(516) 742-4300
Of Counsel:
SARI M. FRIEDMAN
170 Old Country Road
Mineola, NY 11501
(516) 742-4300
i.
Questions Presented.
1. Is Federal Rule of Appellate Procedure 38 authoriz-
ing the imposition of punishment for the filing of
‘*frivolous’’ appeals unconstitutionally vague for failing
to establish standards to determine ‘‘frivolity’’?
2. Were the petitioner’s due process rights infringed by
case consolidation and application of the lead case pro-
cedure?
3. What standards should be applied in determining
whether an appeal! is frivolous under Federal Rule of Ap-
pellate Procedure 38?
4. Was the petitioner’s appeal ‘‘frivolous?’’
(Note: Petitioner reserves the right to argue Question 4
in the event certiorari is granted on any or all of Questions
1-3 but does not include Question 4 among the reasons for
granting certiorari.)
li.
Table of Contents.
Page
Ciuestions PYOSORIE?.. 2... ccs veesccsveaves * sSaeae i
Ce TO a sks caer saeeeaegeeeeee 2
bP er ee 3
Ee rer ere ere 3
sentueneent OF CO COOB. os scenes ntneseemebeweens 5
B. Solerwitz’s Representation of DesVignes
DORONe GR Pans « 66's ek ea ewe iene eens 11
C. The FCCA’s Decision in DesVignes..... 13
Reasons for Granting Writ:
I. The lack of standards for determing whether an
appeal is frivolous in FRAP Rule 38 renders
the statute unconstitutional for vagueness or
CVOFQROREE «60s 60 6-kkanksaseee 17
II. Consolidation and use of the ‘‘lead’’ case pro-
cedure by the MSPB and FCCA infringed the
petitioner’s due process rights............. 21
III. Sanctions for improprieties by attorneys under
FRAP Rule 38 should only be awarded in ex-
treme or unusual circumstances upon a clear
showing of bad faith, delay, relitigation of an
issue, or interposition for an improper pur-
a ee
iii.
pose such as to harass or needlessly increase
Ee Me Ge MEIER, ccc cence wscnes
IV. Petitioner’s appeal was not frivolous.........
EES eee ee
Index to Appendix.
Appendix A—DesVignes v. F.A.A. ___ F.2d ___
(Fed. Cir. 5/2/86) Decision/Order Fining
IE I . ccn cnc restnesesease
Appendix B—DesVignes v. F.A.A. ___ F.2d ___
(Fed. Cir. 5/2/86) —e Fining Solerwitz
ee soko dba gc th éearseeseeves
Appendix C—DesVignes v. F.A.A. __ F.2d ___
(Fed. Cir. 5/27/86 Decision/Order Denying
Stay Pending Certiorari Consideration......
Appendix D—DesVignes vy. F.A.A. —— F.2d —__
(Fed. Cir. 6/3/86) Order Denying DesVignes’
Application for Leave to File Reply to the
Respondent’s Opposition to Petitioner’s Ap-
plication for a Stay of Mandate............
Appendix E—DesVignes v. F.A.A. ___ U.S. ___
(6/2/86) Decision/Order Denying Stay Pend-
ing Certiorari Consideration..............
Appendix F—DesVignes v. F.A.A. ___ F.2d ___
(Documents from Petitioner’s Appendix to
Petitioner’s F.C.C. Brief dated March 21,
23
25
26
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Bi
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Di
El
Page
Appendix G—Block et al v. F.A.A. __. MSPR
____ (Docket No. DA075281FO892, 1/3/83)
MSPB Presiding Officials Decision in the
Consolidation Case Which Incorporated Des-
nc cA eb a wen eas Kahane es Gl
Appendix H—Alex et al v. F.A.A. ___ 17 MSPR
479 (1983) MSPB Board Decision on Appeal
From Block, supra, Appendix G........... H1
Appendix I—Excerpts From Solerwitz’s Brief of
YS nn os he oo edb Od ee ak REO RSS I}
Appendix J—Excerpts From Government’s Brief
Dated May 20, 1986............. edna Ji
Appendix K—Excerpts From Petitioner’s Reply
Brief FineG With PCCA. .....ccccscccssces Kl
Appendix L—Analysis of Cases Involved Sanctions
for Improper Conduct During Litigation.... Ll
TABLE OF AUTHORITIES.
Page
CASES:
Alex v. Dept. of Transp., FAA, 17 MSPR 479 (1983) = 11
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)..... 23
Arnett v. Kennedy, 416 U.S. 134, 158-164 (1973)... 19
i lca
Page
Asberry v. U.S. Postal Service, 692 F.2d 1378, 1382
See SG ae adiaa ke nee Keen eee. 24
Barry v. Barchi, 443 U.S. 55 at 66 (1979).......... 23
Block v. FAA, MSPP (Docket No. DA075281F0892),
PEE co vxdo cine ese Seek eek es 9
Cecil v. FAA, 767 F.2d 892 (Fed.Cir. 1985)...... passim
Cleveland Board of Education v. Loudermill, ___
V.S. ___, 53 USLW 4306 (3/19/85) (Nos.
ee Ae | er ery re 12
Connally v. General Construction Co., 269 U.S.
De; Se es Raa en nc ceeceo nen eneuenes 19
Cornelius v. Nutt, ____ ~ U.S. ___., 53 U.S.L.W.
Ee Oe Es ig kos oe ea an ee 19
Dawson v. FAA, 769 F.Zd 754 (Fed. Cir. 1985)..... 24
DesVignes v. FAA, ____ F.2d ____ (Appeal No.
S5-11101)....%: OT ee ee re eT eee 13
Fluoro Electric Corporation v. Branford Associates,
489 F.2d 320, 326 (2d Cir. 1973)........... 20
Ruderer v. Fines, 614 F.2d 1128, 1132 (7th Cir.
Vi.
Page
STATUTES:
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§ U.S.C.:
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28 U.S.C.:
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OTHER AUTHORITIES:
Federal Rule of Appellate Procedure (FRAP) 38.. passim
Stern, Gressman and Shapiro, Supreme Court Prac-
tice (6th ed.), at page 639................. 23
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1986.
HAROLD J. DES VIGNES,
Petitioner,
against
DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
PETITION FOR A WRIT OF CERTIORARI.
The petitioner respectfully prays that a writ of certiorari
issue to review the judgment and opinion of the United
States Court of Appeals for the Federal Circuit, entered in
the above entitled proceeding on May 2, 1986.
2
Opinions Below.
The opinions below are all reprinted in the appendix to
this petition at the pages indicated below:
Appendix
Court Subject & Date of Opinion Page
Federal Decision awarding $1,000. costs
Circuit and attorneys fees to Dept. of
Court of Justice—5/2/86 A-1*
Appeals
(‘ ‘FCC A’ ’)
FCCA Judgment upon decision dated
5/2/86 B-1
FCCA Decision denying stay of
judgment dated 5/2/86 pending
certiorari consideration—
5/27/86 C-1
FCCA Decision denying petitioner’s
application for leave to file a
reply to respondent’s opposition
to petitioner’s application for a
stay of mandate—6/3/86 D-1
United Decision denying stay of FCCA
States judgment dated 5/2/86 pending
Supreme __ certiorari consideration—
Court 6/30/86 E-1
(“USSC”’)
*Appendix pages are referred to by letter and number. Thus Al
refers to Page 1 in Appendix A.
.
i
i
j
:
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4
3
Jurisdiction.
The petitioner initially sought review of the Department
of Transportation, Federal Aviation Administration’s
(‘‘FAA’’) decision to terminate his employment before the
United States Merit Systems Protection Board (‘‘MSPB’’)
pursuant to § U.S.C. §§ 7511-7513, and § CFR §752.405(a).
After MSPB affirmance of the FAA’s decision to
discharge the petitioner, the petitioner sought review of
the MSPB decision in the Federal Circuit Court of Ap-
peals (‘“‘FCCA’’) pursuant to § U.S.C. §7703(c), and 28
U.S.C. §1295(a)(9).
By decision dated May 2, 1986 (Appendix A) and judg-
ment of the same date (Appendix B) the FCCA affirmed
the MSPB’s decision to sustain the petitioner’s discharge.
In the same decision the FCCA fined Jack B. Solerwitz,
petitioner’s counsel, $1,000.00 under FRAP Rule 38 for
‘filing and maintaining’’ a frivolous appeal. (id.)
The jurisdiction of this Court to review the judgment of
the Federal Circuit Court of Appeals is invoked under 28
U.S.C. §1254(1).
Statutes Involved.
Federal Rule of Appellate Procedure 38.
Damages for Delay.
If a court of appeals shall determine that an ap-
peal is frivolous, it may award just damages and
single or double costs to the appellee.
4
Civil Service Reform Act (‘‘CSRA’’) §7513 (Cause and
Procedure) 5 U.S.C. §7513(b).
‘‘An employee against whom an action is pro-
posed is entitled to”’...
(2) areasonabie time, but not less than 7 days, to
answer orally and in writing and to furnish af-
fidavits 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 reason
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 [5 USCS 7701].
(e) Copies of the notice of proposed action, the
answer of the employee when written, a summary
thereof when made orally, the notice of decision
and reasons therefor, and any order effecting an
action covered by this subchapter [5 USCS §§ 7511
et seq.|, together with any supporting material,
shall be maintained by the agency and shall be fur-
nished to the Board upon its request and to the
employee affected upon the employee’s request.
aA ee et EAT eae Mi Cate Psd pci Nhe DRA edie ls nett tale te
5
(Added Oct. 13, 1978, P. L. 95-454, Title II,
§204(a), 92 Stat. 1136.)
[emphasis added]
CSRA §7703 {Judicial Review of Decisions of the Merit
Systems Protection Board] 5 USC §7703.
(a)(1) ‘‘Any employee or applicant for employ-
ment 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.’’
(c) In any case filed in the Court of Appeals for
the Federal Circuit, the court shall review the
record and hold unlawful and set aside any agency
action, findings, or conclusions found to be—
(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law;
(2) obtained without procedures required by
law, rule, or reguiation having been followed; or
(3) unsupported by substantial evidence.
Statement of the Case.
A. Backgroand Before Solerwitz’s Representation of Petitioner.
(1) Proceedings Before the FAA.
6
Petitiiseer is a former Air Traffic Controller (‘‘ATC’’)
who hau <2 years of satisfactory job experience with the
Federal Aviation Administration (‘‘FAA’’) before he was
discharged in August 1981 from the Houston Air Route
Traffic Control Center for his alleged four day participa-
tion* in a strike called by the Professional Air Traffic
Controller’s Organization (‘‘PATCO’’) which began on
August 3, 1981. (F4, F17). When discharged, petitioner
was a non-probationary employee in the competitive civil
service of the federal government. (G2, G34). If the
PATCO strike continued through August 6, 1981, peti-
tioner lost a job he held for twelve years by allegedly being
absent from work for 2 days.
The PATCO strike effected approximately 12,700
ATCs at geographically diverse locations throughout the
Continental United States, Alaska, and Hawaii.
The circumstances surrounding each of the petitioner’s
discharges were different. At different air traffic control
centers the FAA employed different procedures when
discharging the ATCs. Not all ATCs agreed with or sup-
ported the strike. Some ATCs were not scheduled to work
during the strike. Some ATCs were on official leave ap-
proved by their superiors during the strike. Some ATCs
wanted to return to work following President Reagan’s
*August 5, 6, 7, and 8, 1981 were the days the petitioner allegedly
struck. MSPB Presiding official Kelleher’s decision indicates evidence
existed to show the PATCO strike ended on August 6, 1981 including
President Reagan’s August 3, 1981 announcement that air traffic con-
trollers who did not report to work by August 5, 1981 would be fired,
and Secretary of Transportation Drew Lewis’ announcement that as
of 11:00 AM on August 5, 1981 the strike was over (G7). If the ;
PATCO strike continued through August 6, 1981, petitioner lost a job
he held for twelve years by allegedly being absent from work for two
days.
a
Snag I Neer ei erie we on
-
August 3, 1981 telecast from the White House Rose
Garden directing them to return to work but were unable
to do so because they were locked out of their air traffic
control stations by the FAA.
PATCO’s attorney, Richard J. Leighton, of Washing-
ton, D.C., initially advised PATCO’s leadership that the
federal government would not discharge all traffic con-
trollers in the event of a nationwide strike. After his advice
proved wrong, Leighton undertook representation of
many ATCs whose jobs were terminated, including the
petitioner.
Following the PATCCO strike, the FAA sent individual
air traffic controllers adverse action notices proposing
their removal for their alleged participation in a strike,
and their absence without official leave (AWOL) pursuant
to 5 U.S.C. §7513(b).
Individual ATCs filed separate responses in opposition
to the proposed notice of removal pursuant to 5 U.S.C.
§7513(b). They were mailed separate notices of termina-
tion by the FAA. And they filed separate timely appeals of
their removal action to the MSPB under 5 U.S.C. §7513(d)
and §7701.
By letter dated August 8, 1981, the FAA notified peti-
tioner DesVignes of its intent to discharge him for (1)
striking against the United States government in violation
of 5 U.S.C. §7311 between August 5, 1981 and August 8,
1981, and (2) being AWOL during the same time period
(F4). The August 8, 1981 letter notified the petitioner that
he had ‘‘seven calendar days’’ to reply to the notice ‘‘per-
sonally, in writing, or both, and furnish affidavits and
8
other documentary evidence in support of your answer
b
. : . (FS).
Petitioner’s response to the FAA dated August 15, 1981
requested (1) an extension of time to file a written response
to the charges contained in the FAA letter dated August 8,
1981, (2) a copy of all material relied upon by the FAA to
support its action, and (3) an opportunity to make an oral
presentation in his defense before being required to file a
written response to the FAA charges (F7).
Pet.tioner also made a Freedom of Information Act re-
quest seeking documents and other information essential
to his defense from the FAA (F9).
By letter dated August 15, 1981 the FAA (1) denied peti-
tioner’s request for an extension of time within which to
file a reply, (2) granted petitioner’s request for an oral
presentation of his defense within the 7 day time period
for reply, and (3) provided the petitioner with a portion of
the material the petitioner deemed essential to make his
defense (F11).
Petitioner’s letter to the FAA dated August 17, 1981 in-
dicated that he could not respond to the FAA’s charges
unless he obtained the information requested in his letter
dated August 15, 1981 (F13).
The FAA responded to ‘‘Material Issues Raised by Ap-
pellant’’ in a form document (F15).
By letter dated August 21, 1986 the FAA advised peti-
tioner of its decision to discharge him effective August 24,
1981 (F17). |
9
2. Proceedings Before the MSPB
Petitioner appealed the FAA’s decision to the Merit
Systems Protection Board (MSPB). Petitioner’s case was
consolidated with those of other ATCs. On January 3,
1983 petitioner’s case was decided by MSPB Presiding Of-
ficial Kelleher under the consolidated case titled Block v.
FAA, __. MSPB ___.__ (Docket No. DA075281F0O892,
1/3/83) (Appendix G to this petition is a copy of the Block
decision).
In Block Presiding Official Kelleher decided:
1. The MSPB did not have jurisdiction to consider each
appellant’s claim that he was unlawfully suspended during
the notice period of the removal actions since the initial
petitions on appeal did not raise this issue* (G2-G4).
2. ‘*Ten [unnamed] appellants . . . were charged with
participating in a strike on dates subsequent to August 6,
1981°’ .. ., and all appellants were held to the finding that
the PATCO strike continued until ‘‘August 16, 1981’’.**
3. Petitioner DesVignes would have been allowed to
return to work within the deadline established by the
President, although no specific reference to the record
regarding DesVignes was given (G11-G14).
*This conclusion was based upon an incorrect interpretation of
the word ‘‘claim’’ in 5 C.F.R. §1201.24 (aX(9\(1982) as not to include
the petitioners’ claims that they were unlawfully suspended.
**G7-11, G12. Presiding Official Kelleher’s decision made no
mention of the specific facts involving Petitioner DesVignes alleged
strike participation (G1-G35). Nevertheless, Petitioner Des Vignes’
removal was sustained upon generalizations the Presiding Official
held applicable to DesVignes without referring to the record. {id.]
DesVignes’ discharge was, therefore, not based upon evidence in the
record showing the unique circumstances regarding his alleged par-
ticipation in the strike.
10
4. Only Petitioner Stout had presented any evidence
that he was locked out, fired, or prevented from reporting
to work by the agency after 11 a.m. on August 5, 1981
(G14-G17).
5. The FAA’s revocation of ATCs’ annual leave con-
tractually guaranteed in the ATCs’ collective bargaining
agreement was lawful since the ‘‘operational emergency”’
recognized in the collective bargaining agreement as a con-
dition under which general leave could be revoked could
be inferred by the MSPB after the fact even though a for-
mal declaration of ‘‘operational emergency’’ was ot
made during the strike (G17-G20).
6. Defendant’s right to make an oral reply to the charge
of strike participation under 5 USC §7513(b)(2) was not
denied since the FAA had given the ATCs notice that they
could file a written or oral reply within 7 days of receipt of
the notice of proposed renewal (G24-G26).*
7. Shortening the reply period for petitioners to re-
spond to charges they were on strike as specified in 5 USC
§7513(b)(2) is not grounds for reversal of petitioners cases
unless it is also shown that harmful error resulted
therefrom (G25-G29).
8. Illegal suspensions during the notice period prior to
when the petitioners were required to come back to work
had no impact ‘‘upon the decision to remove them’’
(G30-G31).**
*The fact the FAA could not practically have afforded each ATC
an oral hearing within 7 days of service of the notice of proposed
removal was not consideed in Presiding Official Kelleher’s decision.
**This holding ignores the fact that petitioners who were illegally
suspended before the deadline shift when they were required to return
to work or lose their jobs were unable to be at work as a result of FAA
action beyond their control.
BOR oan ons hat
ML eA A CWE, in lee Hace ttt Bae,
1]
Petitioner DesVignes filed a Petition for Review of
Presiding Official Kelleher’s decision with the MSPB
which came before it in the consolidated case Alex v.
Dept. of Transp., FAA 17 MSPR 479 (1983). Appendix H
is a copy of the Alex decision (H7).
In Alex, the MSPB affirmed Presiding Official
Kelleher’s decision in Block, supra except as to appellant
Burns. The MSPB reinstated Appellant Burns’ holding
that the FAA had not given him adequate notice of annual
leave cancellation (H3, H5).
The Alex decision did not analyze Presiding Official
Kelleher’s holdings other than those pertaining to Burns.
Instead, the MSPB affirmance of Block was based upon
conclusory observations such as ‘‘. . . the presiding of-
ficial’s findings as to those legal issues are essentially con-
sistent with ours; .. .”’ (H3).
B. Solerwitz’s Representation of DesVignes Before the FCCA.
In January, 1985, DesVignes engaged Solerwitz to
prosecute an appeal from the MSPB’s Alex judgment to
the FCCA pursuant to § USC §7703(a)(1).
Solerwitz filed a 45-page brief and 79-page appendix
dated March 21, 1985 with the FCCA (Appendix I to the
petition are excerpts from the March 21, 1985 brief and
appendix Solerwitz filed).
The government’s 17-page brief to the FCCA in
response to the Solerwitz’s was dated May 20, 1985 and
contained a 42-page appendix (Appendix J to this petition
contains excerpts from the government’s brief dated May
20, 1985).
12
Solerwitz filed a 9-page reply brief with the FCCA dated
June 7, 1985 (Appendix K to this petition contains ex-
cerpts from DesVignes’s reply brief filed with the FCCA).
On appeal to the FCCA, DesVignes contended that the
MSPB’s and FCCA’s adoption of the ‘‘lead case method’’
was improper given the different circumstances surround-
ing each ATC’s alleged participation in the PATCO strike.
Des Vignes offered a 1944 case from this Court and a 1957
Fifth Circuit case as support for the principle that the lead
case procedure is not properly applied to cases where the
facts differ (K2, K3).
Before the FCCA DesVignes urged that his due process
rights were violated by the FAA’s precipitous firing
‘*before any hearing’’ relying upon Cleveland Board of
Education v. Loudermill ____ V.S. ___, 53 USLW 4306
(3/19/85) Nos. 83-1362, 1363, G392) (15). DesVignes re-
quested that the FCCA give full consideration to his con-
tention regarding deprivation of his pretermination right
to a hearing. DesVignes urged that application of the lead
case method to his constitutional due process contentions
would not allow adequate judicial consideration of that
contention. DesVignes further contended that case con-
solidation was improper, given the factual diversity be-
tween ATC cases, and offered two federal circuit cases in
support of that contention (15, 16).
Solerwitz made other contentions on DesVignes’ behalf
to the FCCA. However, the FCCA’s treatment of the
above-described contentions regarding the lead case pro-
cedure and case consolidation demonstrates the ill effects
of not having standards to determine whether an appeal is
frivolous under FRAP 38.
13
C. The FCCA’s Decision in DesVignes.
On May 2, 1986, the FCCA decided Des Vignes v. FAA,
____ F.2d ____ (Appeal No. 85-1111) (A2-A11).
Although the FCCA decision refers to DesVignes by
name* (A3, A4), there is nothing in the FCCA’s decision
to indicate that the facts it relied upon were taken from its
own examination of the record.** The FCCA apparently
relied upon the presiding official’s characterization of the
evidence adduced at the hearing, and did not test those
findings against the record.***
The FCCA made inconsistent findings on the crucial
fact regarding the date when DesVignes was scheduled to
report to work following the August 3, 1981 commence-
ment of the PATCO strike. The FCCA’s error resulted
from its wholesale adoption of the presiding official’s
findings of fact.
Thus, the FCCA said (A4):
The presiding official found that DesVignes was
scheduled to work on August 5, 6, 7, and 8, 1981,
that his deadline shift began at 4:00 p.m. on August
5, 1981,...
*DesVignes was not mentioned in MSPB Presiding Official
Kelleher’s Block decision (G1-G33) or in the MSPB’s Alex decision
(H1-H9) except in the list of ATCs whose cases were included in the
consolidation.
**CSRA §7703(c), 5 USC §7703(c) requires the FCCA ‘‘shall
review the record’’. Supra p. 4.
***Compare the presiding official’s characterization of the
evidence adduced at hearing (G5, G6) with that in the FCCA decision
at (A4).
in
The evidence indicated that Des Vignes had failed
to report for work when scheduled, beginning on
August 3, 1981 and thereafter, .. .
[emphasis added}
The first date DesVignes was scheduled to report to
work following the commencement of the August 3, 1981
PATCO strike could not have been both August 3 and 5,
1981. Review of the presiding official’s decision does nor
support the FCCA’s characterization of the presiding of-
ficial’s finding concerning the date DesVignes was
scheduled to start work. Actually, the presiding official’s
decision made no specific reference to DesVignes when
_ discussing the deadline dates for the ATCs to return to
work. (G5-G14).
The FCCA’s finding of inconsistent facts on an impor-
tant issue, and describing portions of the presiding of-
ficial’s decision which did not exist are disturbing, con-
sidering that DesVignes’ livelihood and the holding that
Solerwitz filed a ‘‘frivolous’’ appeal rested upon these er-
roneous findings.
The FCCA’s approach to DesVignes’ contentions re-
garding the propriety and constitutionality of the lead case
methodology and case consolidation was to mischaracter-
ize them and not deal with them. In rejecting Des Vignes’
contentions regarding the impropriety and unconstitu-
tionality of case consolidation and the lead case method,
the FCCA decision adopts verbatim much of the language
from the government’s brief. Compare (A5, A6) with
(J2-J5).
BS Lele ace a acs naiatedra dB aaik Re ae hissed so ob
15
Review of Solerwitz’s brief (11-17) and reply brief
(K2-K5) to the FCCA reveals numerous case citations were
offered to support the impropriety and unconstitutionality
of case consolidation and application of the lead case
method. Notwithstanding the references to case authority
in Solerwitz’s brief and reply brief supporting the position
that case consolidation and application of the lead case
method were improper and unconstitutional, the FCCA
decision says [A5]:
DesVignes’ counsel . . . cites no legal precedent
to support that attack upon this court’s exercise of
its discretion to manage its docket.
{emphasis added]
The FCCA’s statement that its authority to suspend
proceedings is based upon ‘‘. . . the doctrine of primary
jurisdiction”’ ignored the contention in Solerwitz’s brief
that case consolidation and application of the lead case
method to DesVignes case was improper and unconstitu-
tional. Solerwitz’s brief did not challenge the FCCA’s
jurisdiction to manage its docket. Solerwitz’s brief con-
tended to exercise of the MSPB’s and FCCA’s jurisdiction
to consolidate and/or to suspend appeals was improper in
this case.
Thus, the FCCA did not deal with the issues raised in
Solerwitz’s brief (the propriety and constitutionality of
consolidation and application of the lead case method).
The FCCA decision dealt with issues that were not raised
(i.e., its jurisdiction to consolidate or suspend appeals).
The FCCA’s decision to terminate DesVignes’ employ-
ment and to fine Solerwitz were not based upon considera-
tion of the actual contentions in Solerwitz’s brief.
16
The record before the FCCA indicated that DesVignes’
formal requests to obtain facts concerning his discharge
were denied. Supra pp. 7-8. Having been engaged in
January, 1985 to prosecute DesVignes’ appeal before the
FCCA, Solerwitz only had evidence for the record which
was developed before the MSPB. Soierwitz’s contention
that the record was inadequate was ignored in the FCCA
decision. Instead, the FCCA said [A6}:
DesVignes makes no reference at all to the facts
relevant to this case, nowhere indicates* that he ob-
jected below...
The FCCA mischaracterized DesVignes’ efforts to ob-
tain the facts surrounding his case, and then proceeded to
sustain DesVignes’ discharge and to fine Solerwitz based
upon those mischaracterizations. This approach rewarded
the government’s refusal to disclose essential facts con-
cerning the DesVignes’ appeal.
The FCCA decision summarily dismissed Solerwitz’s
contentions concerning DesVignes (A5-Al11) but did not
independently examine the record to determine (a)
whether it was adequate or (b) whether the MSPB findings
or conclusions were erroneous as required by CSRA
§7703(c), 5 USC §7703(c). Supra p. 4. The FCCA’s state-
ment that it made an independent examination of the
record (A10) is not consistent with its decision which sug-
gests it borrowed language and reasoning from the govern-
ment’s brief without checking the government’s conten-
tions against the record. Supra pp. 13. 14.
The FCCA’s reasons for fining Solerwitz were novel.
Compare the reasons given at pp. A-9 to A-11 with infra
*This ignores that Des Vignes’ requests for information (F7) were
denied by the MSPB (F9).
NE ld ALi
17
III under ‘‘REASONS, FOR GRANTING WRIT.”’ The
uniqueness of the reasons given for the fines indicates that
Solerwitz was exposed to fines for conduct which he was
without notice of. In the presence of standards for deter-
mining when an appeal is frivolous under FRAP 38 Soler-
witz would not have been fined.
REASONS FOR GRANTING WRIT.
I.
The lack of standards for determining whether an ap-
peal is frivolous in FRAP Rule 38 renders the statute un-
constitutional for vagueness or overbreadth.
FRAP Rule 38 is a punitive statute authorizing a court
of appeals to award monetary fines and costs upon deter-
mining an appeal is ‘‘frivolous’’. The fines can be levied
against the appellant and his counsel (as in Cecil v. F.A.A.
767 F.2d 892, 894), or just the appellate counsel (as the
FCCA awarded against Solerwitz here, Appendix A (A9 to
All).
Without standards to determine what make an appeal
‘*frivolous’’ expressed either in the statute, or court rule or
in an authoritative opinion from this Court, appellate
counsel can only guess as to whether the filing or
maintenance of an appeal in the federal courts of appeal
will subject them and their clients to penaities.
Since the federal courts of appeal make the initial
determination concerning whether to fine an appellant
and/or appellate counsel for prosecuting a frivolous ap-
peal under FRAP Rule 38, this Court is the only forum
where appellate review of the decision imposing the fine
18
can be obtained. In the exercise of its supervisory power
under its Rule 17.1 over the federal judicial system this
Court should consider standards for the types of presenta-
tions or conduct which constitute a frivolous appeal. With
standards for frivolous appeals established by this Court
neither appellants nor their counsel will be discouraged
from proper participation in the appellate process.
Clarification of the criteria under which penalties can be
assessed for counsel’s conduct in federal litigation is an
important issue to the public, the bench and the bar. In
June 1986 the Federal Bar Council in New York City had
to change auditoriums to accommodate those interested in
a forum on this subject.
When considering the vagueness or overbreadth of
FRAP Rule 38, this Court will have an opportunity to
compare and clarify criteria for assessing costs and at-
torneys’ fees under other federal statutes imposing
penalites for improper conduct during federal litigation.
See e.g., 28 U.S.C. §1927 (which gives federal Courts the
power to award attorneys’ fees incurred as a result of
unreasonable and vexatious delay or multiplication of pro-
ceedings before it); 28 U.S.C §1912 (which gives this Court
or the courts of appeals discretion to adjudge the prevail-
ing party on an appeal ‘‘damages for . . . delay, and single
or double costs’’); this Court’s Rules 50.1 - 50.7 concern-
ing the assessment of ‘‘Costs’’; and, Federal Rules of Civil
Procedure 11 (which provides for sanctions if pleadings,
motions, or other papers are not ‘‘. . . well grounded in
fact and ... warranted by existing law or a good faith
argument for the extension, modification or reversal! of ex-
isting law, and that [they are] not interposed for any im-
proper purpose, such as to harass or cause unnecessary
delay or needless increase in the cost of litigation.’’).
ae i
Sea ee ee ee Pe ee Lee
19
The ‘‘frivolous’’ standard in FRAP Rule 38 is dis-
tinguishable from the standard in ‘‘. . . 5 U.S.C. §7501(a),
authorizing removal or suspension [of nonprobationary
federal employees] without pay ‘for such cause as will pro-
mote the efficiency of the service’.’’ which was held to be
neither vague nor overbroad in Arnett v. Kennedy 416
U.S. 134, 158-164 (1973).*
While the ‘‘frivolous’’ standard in FRAP Rule 38 is
similar to the ‘‘cause’’ standard (in 5 U.S.C. §7501[a]) in
that both were intended to be generally applicable to a
myriad of different situations, the ‘‘frivolous’’ standard
was not applied in cases prior to its enactment (as was the
‘*cause’’ standard considered in Arnett 416 U.S. 134, at
160). Furthermore, no administrative agency’s Office of
General Counsel is available to attorneys or appellants
seeking advice on the interpretation of FRAP Rule 38 per-
forming a function similar to that of the General Counsel
to the Office of Economic Opportunity which was also
referred to in Arnett 416 U.S. 134 at 160.
The ‘‘frivolous’’ standard in FRAP Rule 38 is vague
considering that persons ‘‘of common intelligence must
necessarily guess at its meaning and differ as to its applica-
tion’’. Connally v. General Construction Co., 269 U.S.
385, 391 (1926).
This case pointedly demonstrates the inability to
reasonably anticipate what type of representation will be
considered frivolous or what standards will be applied to
make that determination. None of the eight findings the
*Arnett ’s reasoning concerning vagueness and overbreadth re-
mains viable. See e.g., Cornelius v. Nutt___ U.S. ___, 53 U.S.L.W.
4837 at 4843 [citing Arnett in dissenting opinion] (1/7/85).
20
FCCA made when it fined Solerwititz in this case (Supra
p. 13) were considered in previous FRAP Rule 38 cases as
indicia of frivolous appellate representation.
Previous cases interpreting FRAP Rule 38 suggest that
sanctions for ‘‘frivolous’’ appeals are only to be imposed
in extreme circumstances. In Ruderer v. Fines, 614 F.2d
1128, 1132 (7th Cir. 1980) sanctions were imposed against
a plaintiff who appeared pro se and initiated multiple pro-
ceedings in state and federal courts over a fifteen year
period against various government officials following his
discharge from federal employment. The ‘“‘self-styled’’
claims advanced on the appeal were rejected in several
previous decisions. The Seventh Circuit held the
appeliant’s complaints ‘‘frivolous, malicious, filed in bad
faith and totally devoid of any semblance of colorable
merit,’’ and ‘‘filed with no serious intention of obtaining
relief and solely for the purpose of harassment.’’
The Seventh Circuit in Ruderer said that sanctions
should be imposed under FRAP Rule 38 only after a court
makes fwo determinations, to wit [614 F.2d at 1132]:
First, it must determine that the appeal is
frivolous. ‘‘A frivolous appeal means something
more to us than an unsuccessful appeal.’’ NLRB v.
Lucy Ellen Cady Division 517 F.2d 551, 555 (7th
Cir. 1975). Second, the appellate court, in its
discretion, must examine whether the appeal is an
appropriate one for the imposition of a sanction.
In Fluoro Electric Corporation v. Branford Associates,
489 F.2d 320, 326 (2d Cir. 1973) the Second Circuit im-
posed sanctions under FRAP Rule 38 where the appellant
‘* . . prosecuted three appeals to this court... . In none of
ial
es
21
these appeals was there a pretense to any ground for ap-
peal other than the claim that the judgment was against
the wrong entity.’’ The ‘‘critical question’’ according to
the Second Circuit in FRAP Rule 38 cases ‘‘... is...
whether the situation . . . is one of the ‘highly unusual’ cir-
cumstances which permit the imposition of sanctions...
because of a clear showing of bad faith.’’ [emphasis
added)
Analysis of FRAP Rule 38 cases indicates that they fall
into categories according to the wrongdoing sought to be
punished. (Appendix L to this Petition lists sanction cases
according to Circuit.)
In the ATC cases the FCCA’s application of FRAP
Rule 38 to impose sanctions as a consistent practice when
the Court finds no merit in an appellant’s arguments in-
dicates a departure from previous standards for determin-
ing whether an appeal is ‘‘frivolous.’’ This departure
results in unanticipated punishment of appellants and at-
torneys for their participation in the appellate process.
This Court’s articulation of standards for determining
whether an appeal is frivolous will reduce the uncertainty
created by the FCCA’s decision below.
Il.
Consolidation and use of the ‘‘lead’’ case procedure by
the MSPB and FCCA infringed the petitioner’s due proc-
ess rights.
As an ‘‘employee’’ under 5 U.S.C. §7511 (a)(1)(A) sub-
ject to ‘‘removal’’ under 5 U.S.C. §7512 (2) each peti-
tioner was entitled to the due process rights specified in 6
22
U.S.C. §7513 and §7703. Thus, each petitioner had the
right to representation by an attorney; to copies of ‘‘any
supporting material’’ the agency relied upon in deciding to
discharge the petitioner; to appeal the FAA decision to the
MSPB; and, to appeal the MSPB decision to the FCCA.
Although Petitioner’s letter dated August 17, 1981 in-
dicated he could not respond to the FAA’s charges
without a// information he requested in his August 15,
1981 letter (F13), this information was not supplied in full.
Supra pp. 7-8. Consolidation and adoption of the lead case
procedure by the MSPB and FCCA resulted in denial of
the individual requests for supporting material in the FAA
file essential to each petitioner’s defense. id.
Without information essential to the defense at the
hearing level counsel could not make an adequate record
on appeal.
Further denial of petitioner’s statutory due process right
to appeal resulted from implementation of the ‘‘lead’’ case
and summary affirmance procedures. By utilizing these
procedures the FCCA avoided examining so much of the
record as reflected facts unique to the circumstances sur-
rounding petitioner’s removal! by the FAA. Supra pp. 11-12.
Although the petitioner urged harmful procedural er-
rors occurred in violation of his statutory due process
rights as grounds for the FCCA to reverse his discharge,
(see e.g. I-4 to I-7) the FCCA did not decide this issue.
The suspension of petitioner’s appeal for 23 months
while the 11 ‘‘Lead’’ cases were decided, and delays before
hearing caused by the FAA were independent violations of
the due process requirement that hearings be held ‘‘at a
23
meaningful time.’’ Armstrong v. Manzo, 380 U.S. 545,
552 (1965) as quoted in Barry v. Barchi, 443 U.S. 55 at 66
(1979). Lengthy delays of hearings in employment ter-
mination cases are especially disruptive for both the
employer and employee.
The FCCA’s discouraging the taking and rigorous pur-
suit of appeals by pre-appeal warnings and post-appeal
fines infringed the right to appeal and to be represented by
counsel upon the appeal.
In sum, at every critical stage of the proceedings follow-
ing the PATCO strike petitioner’s substantive and pro-
cedural statutory due process rights were infringed.
Judicial consideration of these important rights should not
be ignored as they were by the court below.
Ill.
Sanctions for improprieties by attorneys under FR ?
Rule 38 should only be awarded in extreme or unusual cir-
cumstances upon a clear showing of bad faith, delay,
relitigation of an issue, or interposition for an improper
purpose such as to harass or needlessly increase the cost of
litigation.
This Court faces docket control problems no less serious
than the FCAA. Stern, Gressman, and Shapiro in
Supreme Court Practice (6th ed.) make this observation at
page 639:
Although the Court has not yet done so, it
possesses the power to award attorneys’ fees in-
curred as a result of unreasonable and vexatious
delay or multiplication of proceedings before it. 28
USC §1927.
24
In 1982, before the FCCA started imposing fines
because it disagreed with appellants’ contentions, its use
of the FRAP Rule 38 sanction power was consistent with
the restraint exercised by this Court and other federal cir-
cuits. Compare Asberry v. U.S. Postal Service, 692 F.2d
1378, 1382 (Fed. Cir. 1982) with cases at Supra pp. 220-21
and in Appendix L.
The FCCA has now come full circle and assesses sanc-
tions on a regular basis in ATC appeals even where the
issues raised were concededly not decided in any of the
‘*Lead’’ cases. See e.g., Dawson v. FAA, 769 F.2d 754
(Fed. Cir. 1985).
Sanctions function to punish and deter conduct con-
sidered undesirable. Freedom to present appellate argu-
ment in a professionally reasonable manner is essential to
the appellate process. Liberal use of the FRAP Rule 38
sanction power infringes the freedom to present appellate
argument, and discourages use of the appellate process.
Without standards to determine when an appeal is
‘*frivolous’’ litigants will be subject to the whim of the
federal circuit court. They wiil be subject to a Court’s ad
hoc interpretation of ‘‘frivolous’’ applied without ade-
quate consideration of the appellate record for the im-
proper purpose of discouraging appeals.
A standard which directs that the sanction power be
used sparingly upon a clear showing of one or more of the
circumstances delineated under III would help to alleviate
the uncertainty which accompanies the undefined word
‘*frivolous’’ in FRAP Rule 38.
ia AN a RLS aR on aR Ra ens
25
In determining whether an appeal is ‘‘frivolous’’ a
Court should also consider (1) the difficulty presented by
the facts and the law, and practical problems in manage-
ment of the litigation, and (2) constraints upon appellate
counsel imposed by adverse decisions below (i.e. inability
to obtain essentiai facts because of adverse discovery rul-
ings).
IV.
Petitioner’s appeal was not frivolous.
The FCCA avoided examination of petitioner’s ap-
pellate record by mischaracterizing DesVignes’ conten-
tions on appeal and not deciding the essential issues which
were actually raised.
The FCCA also did not address issues raised in the Peti-
tioner’s brief which expiained why additional facts regard-
ing the appeal were not included (i.e. harmful procedural
error prevented appellant’s counsel from learning more
facts).
Solerwitz representation of the petitioner was hindered
by adverse agency and court determinations over which he
had no control. It was, nevertheless, adequate, not inter-
posed for an improper purpose, in bad faith, to foster
delay or to increase the cost of litigation.
26
Conclusion.
To clarify and guide the bench and the bar in the
delicate area of imposing sanctions for improper conduct
in the prosecution of a federal appeal, this petition for cer-
tiorari should be granted.
Respectfully submitted,
JACK B. SOLERWITZ
170 Old Country Road
Mineola, NY 11501
(516) 742-4300
Counsel of Record
Of Counsel
SARI M. FRIEDMAN
170 Old Country Road
Mineola, NY 11501
(518) 742-4300
August 2, 1986
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Appendix A—DesVignes v. F.A.A. _. F.2d ___
(Fed. Cir. 5/2/86) Decision/Order Fining Solerwitz
$1,000.00.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
717 Madison Place, N.W.
Washington, D.C. 20439
Francis X. Gindhart Telephone: 633-6550
Clerk Area Code 202
May 2, 1986
NOTICE TO COUNSEL
The Court today announced its decision in the attached
appeal or appeals.
A copy of the Court’s opinion or opinions is enclosed,
and judgment thereon has been entered today as required
by Rule 36, Federal Rules of Appellate Procedure.
Costs may be recovered (by Petitioner or Respondent)
as provided by Rule 39, Federal Rules of Appellate Pro-
cedure.
Very truly yours,
FRANCIS X. GINDHART, Clerk
By Spencer C. Greene
Deputy Clerk
A2
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
e
HAROLD J. DES VIGNES,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIA-
TION ADMINISTRATION,
Respondent.
Appeal No. 85-1111
Andrew Mead von Salis, of Solerwitz & Leeds, Mineola,
New York, submitted for petitioner.
Sandra P. Spooner, Assistant Director, Commercial
Litigation Branch, Department of Justice, Washington,
D.C., submitted for respondent. With her on the brief
were Richard K. Willard, Acting Assistant Attorney
Generai and David M. Cohen, Director. Of counsel was
Diane R. Liff, Office of the General Counsel, Department
of Transportation, Washington, D.C.
Appealed from: Merit Systems Protection Board
abies aa eullilitaele NE
A3
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
HAROLD J. DES VIGNES,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIA-
TION ADMINISTRATION,
Respondent.
Appeal No. 85-1111
*
DECIDED: May 2, 1986
Before MARKEY, Chief Judge, RICH and SMITH, Cir-
cuit Judges.
PER CURIAM.
Harold J. Des Vignes appeals from a decision of the
Merit Systems Protection Board (board), affirming his
removal from his position as an air traffic controller
because of his participation in an illegal strike and absence
from his position without authorization. We affirm and
impose a sanction on counsel.
A4
BACKGROUND
Des Vignes was removed from employment as an air
traffic controller at the Houston Air Route Traffic Con-
trol Center in Houston, Texas. He appealed to the Dallas
Regional Office of the MSPB, which held a hearing. '
On January 3, 1983, the presiding official issued an in-
itial 32-page decision affirming the FAA’s action.* The
presiding official found that the strike continued through
at least August 6, 1981, that Des Vignes was scheduled to
work on August 5, 6, 7 and 8, 1981, that his deadline shift
began at 4:00 p.m. on August 5, 1981, and that he did not
report for any of his scheduled shifts. The agency
presented watch schedules reflecting when Des Vignes was
scheduled to work, personnel sign-in logs, and his time
and attendance record. That evidence indicated that Des
Vignes had failed to report for work when scheduled, be-
ginning on August 3, 1981 and thereafter, and that he was
absent without leave during the period August 3 through
August 8. The agency also presented the testimony of Des
Vignes’ facility chief, Mr. Arnold E. Price.
The presiding official properly concluded, citing
authority, that the agency had presented prima facie proof
that Des Vignes had participated in a strike against the
'Des Vignes’ appeal was included in the consolidation captioned at
the hearing level Richard W. Block v. Department of Transportation,
FAA, Docket No. DA07528iF0892 (Initial Decision Jan. 3, 1983),
and captioned before the full board Stephen P. Alex v. Department of
Transportation, FAA, Docket No. DA075281F1329, reported at 17
M.S.P.R. 479 (MSPB i983).
*Des Vignes’ counsel filed a copy of the full board’s decision on
review, which summarily affirmed the presiding official’s decision
with respect to Des Vignes. Des Vignes’ counsel did not file a copy of
the presiding official’s decision.
AS
United States. Des Vignes did not testify, but elected to
rest after presentation of FAA’s evidence. Des Vignes’
counsel raised various legal arguments, all of which the
presiding official properly rejected. Accordingiy, the
presiding official concluded and the board agreed that the
agency had proven by a preponderance of the evidence,
that Des Vignes had participated in the strike and was ab-
sent without leave.
Des Vignes’ counsel devotes ten pages of his brief to a
contention that this court’s suspension of proceedings
pending the board’s resolution of certain cases denied Des
Vignes due process, yet cites no legal precedent to support
that attack upon this court’s exercise of its discretion to
manage its docket. The suspension is supported by the
doctrine, of primary jurisdiction. See, e.g., Ricci v.
Chicago Mercantile Exchange, 409 U.S. 289, 306 (1973);
United States v. Western Pacific Railroad Co., 352 U.S.
59, 62-70 (1956); Far East Conference v. United States,
342 U.S. 570, 574-75 (1952). It was based as well on
precedents of this court and on common sense. See, e.g.,
Oceanic Steamship Co. v. United States, 586 F.2d 774,
793-94 (Ct. Cl. 1978); Seaborad Airline Railroad Co. v.
United States, 387 F.2d 651, 656 (Ct. Cl. 1967); McLean
Trucking Co. v. United States, 387 F.2d 657, 660-61 (Ct.
Cl. 1967).
In Des Vignes’ reply brief, counsel asserts that every
petitioner has a right to present the facts of his case to the
board and to this court. No petitioner has been denied that
right. Access to the courts is a fundamental right, yet
nothing in the cases cited by Des Vignes’ counsel even
remotely suggests that Des Vignes has been denied access,
or that courts may not manage their dockets to prevent
duplicative and unjustified litigation. Similarly, the asser-
tion that 28 U.S.C. §2072 has been violated rests solely on
an unsupported, unsupportable, conjectural, and con-
A6
clusory assertion that this court’s suspension of pro-
ceedings denied Des Vignes a proper hearing.
Finally, counsel’s bald assertion, unsupported by any
reference to the record or to evidence of distinguishing
facts, that the precedents of this court are immaterial! and
distinguishable from this case, is not only without merit,
but professionally reprehensible. Counsel has not shown
any facts that distinguish the present appeal from the fact
patterns in this court’s earlier decisions. It is not true that
a petitioner has a right to require the court to repeatedly
decide the same issues on the same facts.
Des Vignes’ attack on the propriety of the board’s con-
solidation of his appeal with those of others is baseless and
in disregard of the rule that management of the board’s
docket is matter within the board’s discretion. REA Ex-
press, Inc. v. United States, 568 F.2d 940, 950 (2nd Cir.
1977), cert. denied, 435 U.S. 923 (1978). Des Vignes makes
no reference at all to facts relevant to this case, nowhere
indicates that he objected below, and does not even allege
that the factors governing consolidation militate against it
here. See, e.g., Dorrance v. Department of Transporia-
tion, FAA, 735 F.2d 516, 519 (Fed. Cir.), cert. denied, 105
S. Ct. 432 (1984); Moylan v. Department of Transporta-
tion, FAA, 735 F.2d 524, 525 (Fed. Cir.), cert. denied, 105
S. Ct. 432 (1984); In re Air Crash Disaster at Florida
Everglades, 549 F.2d 1006, 1013-14 (Sth Cir. 1977).
Des Vignes’ unsupported contention that the agency
was motivated by revenge is unworthy of comment. See
Schapansky v. Department of Transportation, FAA, 735
F.2d 477, 483-84 (Fed. Cir.), cert. denied, 105 S. Ct. 432
(1985). His attack on the drawing of an adverse inference
from refusal of air traffic controllers to testify was re-
jected in Adams v. Department of Transportation, FAA,
eS ee eS ae ee ky ee ee -™ 2
—— Tee,
A7
735 F.2d 488, 492 (Fed. Cir.), cert. denied, 105 S. Ct. 432
(1984). His argument that federal employees have a con-
stitutional right to strike disregards the statute, 5 U.S.C. §
7311(3); 18 U.S.C. § 1918, and contrary precedent. See
United States v. Taylor, 693 F.2d 919 (9th Cir. 1982);
United States v. Haggerty, 528 F. Supp. 1286 (D. Colo.
1981); United Federation of Postal Clerks v. Blount, 325
F. Supp. 879 (D.D.C.), aff’d mem., 404 U.S. 802 (1971).
His bare allegation that his union activity short of striking
was the basis for charges against him was rejected in
Schapansky, 735 F.2d at 482-83. His contention that the
notice period was improperly reduced under the ‘‘crime
exception’’ of 5 U.S.C. § 7513 was rejected in Schapan-
sky, 735 F.2d at 486, and in Novotny v. Department of
Transportation, FAA, 735 F.2d 521, 523 (Fed. Cir. 1984).
His assertion that notice to reply ‘‘within seven (7) days’’
violated 5 U.S.C. § 7513(b)(2) was rejected in Adams, 735
F.2d at 490 n.3. His contention that the agency should
have sent him personal copies of materials relied upon by
the agency was rejected in Novotny, 735 F.2d at 523. His
contention that notice was insufficient was rejected in
Adams, 735 F.2d at 491, and in Anderson v. Department
of Transportation, FAA, 735 F.2d 537, 539-40 (Fed. Cir.),
cert. denied, 105 S. Ct. 432 (1984). His assertion that he
was removed for failing to return to work within the 48
hour grace period was rejected in Anderson, 735 F.2d at
540. His contention that the harmful error rule should not
be applied to procedures required by statute was rejected
in Adams, 735 F.2d at 490 n.3., and that rejection was
reaffirmed in Handy v. Postal Service, 754 F.2d 335, 337
(Fed. Cir. 1985). His argument that nexus is lacking be-
tween his conduct and the efficiency of the service was re-
jected in Schapansky, 735 F.2d at 484, as was his conten-
tion that removal is too harsh for strike participation, id.
at 484-86. His contention that prima facie proof of strike
A8
participation must include more than proof of unauthor-
ized absence during a strike of general knowledge was re-
jected in Schapansky, id at 482-84. His assertion that hear-
say evidence can never constitute prima facie proof was re-
jected in Campbell v. Department of Transportation,
FAA, 735 F.2d 497, 502 (Fed. Cir.), cert. denied, 105 S.
Ct. 432 (1984). His argument that the agency must do
more than prima facie prove intent to strike was rejected
in Schapansky, 735 F.2d at 483. His contention that he
thought he had been fired, was confused by conflicting
orders, and that FAA did not notify him when to return,
was correctly characterized as ‘‘disingenucus’’ in Adams,
735 F.2d at 490-91. Nothing of record indicates that Des
Vignes was confused, or that he attempted to contact the
facility to seek clarification of his deadline. See Anderson,
735 F.2d at 540. His unsupported assertion that he was ex-
cluded by Houston Center security guards directly
challenges the findings and credibility determinations of
the presiding official, which this court will not second-
guess, DeSarno v. Department of Commerce, 761i F.2d
657 (Fed. Cir. 1985), and is ‘‘no more than. . . a perfunc-
tory challenge to the record.’’ Kochanny v. Bureau of
Alcohol, Tobacco, and Firearms, 694 F.2d 698, 703 (Fed.
Cir. 1982).
This appeal is clearly frivolous. Cecil v. Department of
Transportation, FAA, 767 F.2d 892 (Fed. Cir. 1985); Moir
v. Department of the Treasury, 754 F.2d 341 (Fed. Cir.
1985); Asberry v. United States, 692 F.2d 1378 (Fed. Cir.
1982). The constitutional arguments presented in Part I of
Des Vignes’ brief are patently frivolous. The arguments
set forth in Part II merely restate contentions already re-
jected in precedent cases and make no attempt to dis-
tinguish those cases on either fact or law. Part III, purpor-
ting to address individual facts of Des Vignes’ case, con-
tains only summary and conclusory statements unsup
A9
ported in any manner by the record or even by references
to the record. Indeed, counsel totally disregards Fed. R.
App. P. 28(a)(3), and this Court’s Rule 13(a), requiring
c-.ations to the record.
Abuse of the Judicial Process
Counsel for Des Vignes, Mr. Jack B. Solerwitz, filed an
appearance and a brief in this and in each of the 130 other
individual air controller appeals now before this panel.
The appeals involve hundreds of individual former air
controllers. Except for a paragraph or two relating to in-
dividual air controllers, 107 of those briefs are virtually
identical to that filed in this case.’ That they are copies is
indicated by the presence of the same typographical errors
in each, and by the failure to distinguish between appeals,
involving one petitioner from those involving multiple
petitioners. Each contains the same type of patently
frivolous constitutional arguments, rejected contentions,
and unsupported assertions of fact discussed above. Each
disserves the court in violating the rule requiring citations
to the record.‘ The court was required to check the record
and was required to read, and has read, all 131 sets of
briefs, in an effort to insure against the possibility that a
meritorious appeal might otherwise be overlooked. The
court will issue an individual opinion in each of the 131 ap-
peals.
*The briefs in 23 appeals are not identical to that in this case.
They are in two groups: (1) 16 in which the bodies of the briefs are
identical; (2) 7 in which the briefs are entirely identical. All 131 briefs
reflect violation of court’s rule requiring citation to the record, as
discussed herein.
“In 51 cases, counsel filed no appendix, in disregard of Fed. R.
App. P. 30(a), and this court’s Rule 12. In 38 of those cases, counsel
requested and was denied leave to file a late appendix.
Al0
Counsel was repeatedly warned against the filing of
frivolous appeals presenting legal issues and fact patterns
indistinguishable from those presented and decided in
earlier air controller appeals rising out of the same strike
and the Presidential action in response thereto. See Bowen
v. Department of Transportation, FAA, 769 F.2d 753, 756
& n.4 (Fed. Cir. 1985).°
Counsel’s attention was called by this court to those
earlier cases, though counsel is accountable for knowledge
of this court’s decisions without such notice. With that
notice, counsel was requested to review the propriety of
continuing to maintain the appeals he had filed. Counsel
was sent copies of earlier air controller decisions in wich
the court found the appeal frivolous and imposed a sanc-
tion. With those decision copies, counsel was again re-
quested to review the continued maintenance of any ap-
peal indistinguishable from earlier decisions of this court.
Counsel simply ignored those warnings and requests of the
court.
Respondent prepared briefs in response to each of
counsel’s 131 virtually identical briefs. Counsel’s failure to
refer to the record forced Respondent to do the work in-
cumbent upon counsel. Counsel’s failure to supply an ap-
pendix in some cases forced Respondent to do so in those
cases. Respondent cited the frivolous, rejected, and un-
supported contentions discussed above. Respondent also
cited counsel’s frequent, repeated, and brazen violations
of this court’s rules. Mr. Solerwitz’ reply briefs simply ig-
nored those citations, merely stating that the earlier cases
were distinguishable (but citing no distinguishing facts),
ignored Respondent’s charge that he had failed to cite to
*Requests that counsel review the propriety of maintainin
. . . . & ap-
peals in light of the need to avoid frivolity and the accompanying
abuse of the judicial process were sent to counsel on July 12, 1985,
July 31, 1985, and August 30, 1985.
All
the record, and stated that the appeal was filed to give Des
Vignes access to the court. Faced with clear and insur-
mountable indication that all 131 appeals were trivolous,
Mr.Solerwitz has continued to maintain this and the other
130 appeals.
Counsel’s conduct in filing and maintaining this appeal
has wasted the time and limited resources of this court, has
caused unnecessary expenditure of Respondent’s (and thus
the taxpayers’) resources without even a colorablie basis in
fact or law, and has denied the availability of this court’s
resources to deserving litigants.
Counsel’s conduct in this and in the other 130 appeals
now before us constitutes a flagrant and totally inex-
cusable abuse of the judicial process.
Accordingly, in respect of this appeal, No. 85-1111, Mr.
Solerwitz shall personally pay to the government as a
penalty the sum of $1,000. Fed. R. App. P. 38. That pay-
ment shall be made within 30 days following the date of
this opinion, and Mr. Solerwitz shall notify the Clerk of
this court when the payment is made.
AFFIRMED—SANCTION IMPOSED
MP Br ee
Bl
Appendix B—DesVignes v. F.A.A. _ F.2d ___
(Fed. Cir. 5/2/86) Judgment Fining Solerwitz $1,000.00.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
HAROLD J. DES VIGNES,
Petitioner,
Vv.
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIA-
TION ADMINISTRATION,
Respondent.
Appeal No. 85-i111
JUDGMENT
ON APPEAL from the Merit Systems Protection Board
IN CASE NO(S). Docket No. DA075281F1329
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED: Affirmed; Mr. Solerwitz
shall personally pay to the government as a penalty the
sum of $1,000. Fed. R. App. P. 38. That payment shall be
B2
made within 30 days following the date of this opinion,
and Mr. Solerwitz shall notify the Clerk of this court when
the payment is made.
ENTERED BY ORDER OF THE
COURT
FRANCIS X. GINDHART, CLERK
DATED May 2, 1986
ISSUED AS A MANDATE: June 6, 1986
onl
Cl
Appendix C—Des Vignes v. F.A.A. ____ F.2d ____ (Fed.
Cir. 5/27/86) Decision/Order Denying Stay Pending Cer-
tiorari Consideration.
Note: This order will not be published in a printed volume
because it does not add significantly to the body of law and
is not of widespread legal interest. It is a public record. It
is not citable as precedent.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
HAROLD J. DES VIGNES,
Petitioner,
Vv.
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION,
Respendent.
Appeal No. 85-1111
Before MARKEY, Chief Judge, RICH and SMITH, Cir-
cuit Judges.*
*The motion is mistakenly addressed to Circuit Judge Friedman,
Circuit Judge Nies, and Senior Judge Miller.
C2
ORDER
Jack B. Solerwitz has filed a i19-page ‘‘Application to Stay
Mandate Pending Certiorari Consideration’’, with a 31-page
set of attachments. This court’s opinion in this case, issued
May 2, 1986, set forth the clearly frivolous nature of the
appeal, Mr. Solerwitz’ disregard of this court’s rules, and
his abuse of the judicial process, for which the court im-
posed a sanction on Mr. Solerwitz personally of $1,000.
The application contains extended attacks on the work
of the Federal Aviation Administration, the Merit Systems
Protection Board, and this court in the litigation resulting
from the air controliers’ strike of 1981. It makes no effort
to show that the appeal in this case was not frivolous. On
the contrary, it asserts reasons why counsel did not and
could not file a non-frivolous appeal, citing circumstances
that allegedly ‘‘left petitioners’ appellate counsei with in-
sufficient access to facts and insufficient time or opportu-
nity to give each petitioner’s case adequate attention’’ and
‘*made ‘nonfrivolous’ representation difficult if not impos-
sible.’’
The application rests on the facetious assumption that
there is a ‘‘constitutional right’’ to file frivolous appeals.
It then attempts to convert this court’s efforts to caution
counsel against requiring the court to repeatedly decide cases
indistinguishable from those already decided into ‘a denial
of that ‘‘right.’’ Because the application itself borders on
the frivolous, the couri did not require the government to
respond to it.
Mr. Solerwitz misstates the facts. This court did not base
its frivolity determination on the basis of cases ‘‘not even
decided when the present appeals were filed.’’ In accord with
this court’s Notice of December 10, 1984 (after the Supreme
Court had denied certiorari in the lead cases), new petitions
|
C3
and new filing fees were filed. Moreover, the sanction im-
posed on Mr. Solerwitz was for filing and maintaining the
appeal, as well as for disregarding the court’s rules and abus-
ing the judicial process.
The application makes no effort to challenge the correct-
ness of the court’s decision on the merits in this case, but
seeks to stay the mandate only to delay the terminal date
(June 2, 1986) of the period within which Mr. Solerwitz has
been ordered by this court to pay $1,000 to the government.
Mr. Solerwitz neither contends nor shows that his payment
of that amount would subject him to irreparable injury. Nor
has Mr. Solerwitz shown any basis for believing that the
Supreme Court would grant a petition for certiorari to
review the present imposition of a sanction. In sum, Mr.
Solerwitz has made no showing sufficient to justify a stay
of our mandate in this case.
Accordingly, it is ORDERED:
(1) The Application for stay is denied.
(2) The order of this court that Mr. Solerwitz pay $1,000
to the government on or before June 2, 1986 is
reaffirmed.
Date 27 May 86
FOR THE COURT
HOWARD T. MARKEY
Chief Judge
Filed
U.S. Court of Appeals For
The Federal Circuit
May 28, 1986
FRANCIS X. GINDHART
Clerk
D1
Appendix D—Des Vignes v. F.A.A. ____ F.2d ___ (Fed.
Cir. 6/3/86) Order Denying DesVignes’ Application for
Leave to File Reply to the Respondent’s Opposition to
Petitioner’s Application for a Stay of Mandate.
UNITED STATES
FEDERAL CIRCUIT COURT OF APPEALS
€
HAROLD J. DES VIGNES,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION,
Respondent.
Appeal No. 85-1111
2
ORDER
Upon consideration of Petitioner’s Application for
Leave to File a Reply to the Respondent’s Opposition to
Petitioner’s Application for a Stay of Mandate and Peti-
tioner’s Reply, it is the ___ day of ___, 1986;
ORDERED that Petitioner is given leave to file the Reply
to Respondent’s Opposition and the Reply shall be ac-
cepted for filing with the Clerk of this Court.
D2
FOR THE COURT
Dated: , 1986
Washington, D.C.
cc: Sandra P. Spooner, Esq.
Jack B. Solerwitz, Esq.
Denied 3 June 86
H. T. MARKEY
Ch. Judge
Filed
U. S. Court of Appeais for
the Federal Circuit
Jun 6 1986
FRANCIS X GINDHART
Clerk
El
Appendix E—DesVignes v. F.A.A. __ U.S. ____
(6/2/86) Decision/Order Denying Stay Pending Certi-
orari Consideration.
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, D.C. 20543
JOSEPH F. SPANIOL, JR. , Area Code 202
Clerk of the Court 479-3011
June 2, 1986
Jack B. Solerwitz, Esquire
c/o Leonard W. Krouner, Esquire
170 Old Country Road, Suite 310
Mineola, NY 11501
Re: Harold J. Des Vignes v. Department of
Transportation, Federal Aviation Administration,
A-924
Dear Mr. Solerwitz:
Your application for a stay pending appeal in the above-
entitled case has been presented to the Chief Justice, who
has endorsed thereon the following:
**Denied
WEB
5/30/86’’
E2
Very truly yours,
JOSEPH F. SPANIOL, JR., Clerk
cae L. TURNER, JR.
Assistant Clerk
vjr
cc: Hon. Charles Fried, Solicitor General
Fi
Appendix F—Des Vignes v. F.A.A. F.2d ____- Docu-
ments From Petitioner’s Appendix to Petitioner’s
F.C.C. Brief dated March 21, 1985.
APPOINTMENT AFFIDAVITS
IMPORTANT.—Before swearing or affirming to these
appointment affidavits, you should read and understand
the attached information for appointee
ATCS DEC. 10, 1968
FAA LAX ARTCC. PALMDALE, CALIF.
I, HAROLD JOHN DES VIGNES, do solemnly swear (or
affirm) that—
A. OATH OF OFFICE
I will support and defend the Constitution of the United
States against al! enemies, foreign and domestic; that I will
bear true faith and allegiance to the same; that I take this
obligation freely, without any mental reservation or pur-
pose of evasion; and that I will well and faithfully
discharge the duties of the office on which I am about to
enter. SO HELP ME GOD.
B. AFFIDAVIT AS TO SUBVERSIVE ACTIVITY AND
AFFILIATION
I am not a Communist or Fascist. I do not advocate nor
am I knowingly a member of any organization that ad-
vocates the overthrow of the constitutional form of the
Government of the United States, or which seeks by force
or violence to deny other persons their rights under the
|
F2
Constitution of the United States. I do further swear (or
affirm) that I will not so advocate, nor will I knowingly
become a member of such organization during the period
that I am an employee of the Federal Government or any
agency thereof.
C. AFFIDAVIT AS TO STRIKING AGAINST THE
FEDERAL GOVERNMENT
I am not participating in any strike against the Govern-
ment of the United States or any agency thereof, and I will
not so participate while an employee of the Government of
the United States or any agency thereof. I do not and will
not assert the right to strike against the Government of the
United States or any agency thereof while an employee of
the Government of the United States or any agency
thereof. I do further swear (or affirm) that I am not know-
ingly a member of an organization of Government
employees that asserts the right to strike against the
Government of the United States or any agency thereof
and I will not, while an employee of the Government of
the United States or any agency thereof, knowingly
become a member of such an organization.
D. AFFIDAVIT AS TO PURCHASE AND SALE OF
OFFICE
I have not, nor has anyone acting in my behalf, given,
transferred, promised or paid any consideration for or in
expectation or hope of receiving assistance in securing this
appointment.
HAROLD J. DES VIGNES
- a ees.
F3
Subscribed and sworn (or affirmed) before me this 16th
day of December A.D. 1968, at Palmdale, California.
[Seal] DONALD C. DELMERS
Acting Chief, Los Angeles Center
F4
DEPARTMENT OF TRANSPORTATION
Federa! Aviation Administration
Air Route Traffic Control Center
P. O. Box 60308
Houston, Texas 77205
REGISTERED MAIL
AUG 8 1981
Mr. Harold J. DesVignes
14127 Merry Meadow Drive
Houston, Texas 77049
Dear Mr. DesVignes:
This is notice that I intend to remove you from your
position of Air Traffic Control Specialist, GS-2152-14,
$41,657 per annum, ARTC Center, Houston, Texas.
The reasons for the proposed actions are:
Reason 1. Violation of 5 USC 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
USC i918 which makes participation in a strike
against the government of the United States a crime
for which a sentence of imprisonment can be im-
posed.
Specification. Beginning at approximately 7:00
a.m. Eastern Daylight Time (EDT) on
August 3, 1981, a nationwide strike by air
F5
traffic controllers occurred. Beginning at
4:00 p.m. CDT, on August 5, 1981, when
you failed to report for duty, until the pres-
ent, you participated in a strike against the
United States government.
Reason 2. Unauthorized Absence.
Specification. Beginning first at the 4:00 p.m.
CDT shift on August 5, 1981, you failed to
report for your scheduled tour of duty. On
August 3, 1981, you were sent a telegram/
mailgram that an illegal strike was in prog-
ress and that you must return to duty for
your regularly scheduled shift. You failed to
return to duty and instead remained absent
without authorization.
The material relied upon to support this proposed ac-
tion is available for review in my office. lf you wish to
review this material, please contact Dorcille Z. White,
(713) 443-8545, ext. 240, Houston ARTC Center, 16600
John F. Kennedy Blvd., Houston, Texas 77205.
The foregoing action constitutes a strike against the
Government prohibited by 18 USC 1918 and 5 USC 7311.
This gives me reasonable cause to believe that you have
committed a crime for which a sentence of imprisonment
can be imposed. Therefore, you may reply to this notice
personally, in writing, or both, and furnish affidavits and
other documentary evidence in support of your answer to
me within seven calendar days after you receive this letter.
In making a reply, you have the right to be represented by
an attorney or other representative. As soon as possibile
after your reply is received, or after the expiration of the
F6
7-day limit, if you do not reply I will issue a written deci-
sion on the proposed removal.
Original Signed by
ARNOLD E. PRICE
Chief, Houston Center
cc: ASW-16
ASW-540
F7
RE: Harold J. DesVignes
Dear Sir:
This is to request an extension of time in which to file a
written answer to the notice of proposed action against me
for the reasons stated below.
First, there is no basis to the charge that I have commit-
ted a crime for which a sentence of imprisonment may be
imposed. Therefore, the crime exception to the rule set
forth in 5 U.S.C. §7513, which requires that I be given a
thirty (30) day advance notice of this proposed action, is
inapplicable.
I also understand that even if the crime exception to the
30-day rule is invoked, the controlling criterion is that I
am entitled to a ‘‘reasonable time,’’ (which may not be /ess
than seven days) in which to file my answer. 5 U.S.C.
§7513(b)(2). I do not feel that, under the circumstances
that apply, seven days is a reasonable time for filing a
response.
I request that copies of all the materials relied on by the
FAA to support its proposed action be sent to me. By
separate letter to the Freedom of Information Office of
the FAA, I am also requesting disclosure of all notices of
proposed actions issued since January 1, 1978, and be-
tween January 1, 1969, and January 1, 1971. As I am en-
titled to review all of the materials relied on by the FAA to
support its proposed action, see 5 C.F.R. §752.404, I re-
quest that I be given at least 20 days from the receipt of
these materials to answer personally the charges.
I also request that I be given an opportunity to make
such an oral presentation in my defense to an official of
the FAA a reasonable time prior to filing my written
response, as is required by 5 U.S.C. §7513(b)(2). Please in-
form me specifically of the time and place such a personal
F8
presentation may be made and the date on which my writ-
ten response is due. Given the gravity of the charge, I re-
quest that this matter be treated confidentially and
singularly and that no less than one hour be reserved for
my personal reply.
I hereby designate Frank Juarez as my respresentative in
this proposed action. Please send copies of all communica-
tions in this action to myself at: 14127 Merry Meadow
Drive, Houston, Texas 77049.
Sincerely,
HAROLD J. DES VIGNES
4
.
F9
Freedom of Information Office (ATA-10)
Federal Aviation Administration
800 Independence Avenue, S.W.
Washington, D.C. 20591
Re: Freedom of Information Act Request
To Whom It May Concern:
This is to request that the Federal Aviation Administra-
tion make disclosure and provide copies of certain
materials available under the Freedom of Information
Act, 5 U.S.C. Section 552, and the relevant regulations of
the agency.
Specifically, I request disclosure to me of records heid in
any form that (a) document adverse personnel action pro-
posais and final decisions by the FAA since January 1,
1978, and from January 1, 1969, through January 1, 1971;
(b) indicate how FAA determines whether there is
‘‘reasonable cause to believe that a crime for which a
sentence of imprisonment can be imposed’’ has been com-
mitted, within the meaning of 5 U.S.C. §7511; (c) indicate
how FAA interprets the meaning of the words ‘‘par-
ticipates’’ and ‘‘strike,’’ as found in § U.S.C. §7311(3),
and the authority for such interpretations.
The FAA has initiated disciplinary proceedings against
me, and access to the materials requested above is
necessary for me to prepare an adequate defense. If any
portion of this request denied, I request a detailed state-
ment of the reasons for the withholding and an index or
similar statement of the nature of the documents withheld.
Pursuant to the Act, I request waiver of all charges, but,
if waiver is denied, I promise to pay reasonable charges in-
curred for an appropriate search and copying of these
documents upon presentation of an invoice along with the
finished documents.
F10
If search and copying fee will exceed $25.00, please
notify my representative Frank Juarez, or myself, at
(below). You may notify us whether this request will be
granted at the address below. I would appreciate hearing
from you as soon as possible so that I may begin to
prepare my defense. Thank you for your assistance.
Sincerely,
HAROLD J. DES VIGNES
14127 Merry Meadow Drive
Houston, Texas 77049
Fil
DEPARTMENT OF TRANSPORTATION
) Federal Aviation Administration
| Air Route Traffic Control Center
P. O. Box 60308
Houston, Texas 77205
AUG 15 1981
Mr. Harold J. DesVignes
14127 Merry Meadow Drive
Houston, TX 77049
Dear Mr. DesVignes:
Your request for an extension of time in which to reply to
the proposed notice of removal is hereby denied.
You may arrange for a time to make the oral reply by
contacting me immediately by telephone at 713-443-8545,
extension 200. You are reminded that you have seven days
from the date you received the proposed removal notice in
which to reply orally and/or in writing.
A copy of the material relied upon to support the action
is enclosed as requested.
The Federal Aviation Administration records which you
requested in your undated letter cannot be provided by
this office. In order to avoid delay in processing your re-
quest for records, we have forwarded your inquiry to the
FOIA Coordinator for action. You should hear from that
office in the near future. Should you have occasion to
make further inquiry with regard to your request, address
all correspondence to:
F12
Federal Aviation Administration
FOIA Coordinator
Attention: ASW-60A
P. O. Box 1689
Fort Worth, Texas 76101
The documents you requested under the Freedom of In-
formation Act were not relied upon to support the pro-
posed action, therefore, the seven days notice will not be
extended pending a response to your request.
Original signed by
ARNOLD E. PRICE
Chief, Houston Center
Enclosures
ce:
ASW-16
ASW-540
AO it ht 3? ll
Fi3
professional air traffic controllers organization
Arnold Price August 17, 1981
FAA ARTC Center
Houston, Texas
Re: Harold J. Des Vignes
Dear Mr. Price:
This is in response to the proposed removal action
against me dated August 8, 1981.
Because I have been informed in a pre-prepared notice
that the FAA believes I have committed a crime and
because of ambiguities in the notice and the statutes that
apply, I cannot deny or affirm the charges at this time.
In order for me to protect my rights and answer fully, I
need to know how it was determined that I was par-
ticipating in a strike (which is a crime). There is, as far as I
know, no definition of the term ‘‘strike’’ or ‘‘par-
ticipating’’ applicable to employees in the federal sector. !
must know this information and how strike status differs
from AWOL or sick leave status before I am able to
answer the charges.
I have requested an opportunity to present an oral
answer and did not get one, this was a harmful error under
5 U.S.C. Section 7513.
I have requested from the FAA’s Freedom of Informa-
tion Office copies of all notices of adverse personnel ac-
tions since January 1, 1978, and between January 1,
1969 and January 1, 1971, as well as all final FAA deci-
sions in the adverse action cases initiated by those notices,
in addition to the other information relating to interpreta-
tion of terms used in the notice. Because I have not yet
received this information, I do not feel that I have been
TT Sa aah a ’
F14
allowed to prepare my defense adequately. I believe that
any decision in my case should wait until I have been given
a reasonable opportunity to review this information.
Sincerely,
HAROLD J. DES VIGNES
mes
F15
TAB 7 RESPONSE TO MATERIAL ISSUES RAISED
BY APPELLANT
It is the Federal Aviation Administration’s position that
appellant was properly afforded ail rights under existing
regulations. Appellant was informed with sufficient
specificity and detail as to the reasons for the proposed
removal. To insure delivery of pertinent correspondence,
appellant was mailed a copy of the proposal letter and the
decision letter by both regular mail and registered mail.
Questions 8 and 9 on the appeals form verify that ap-
pellant received a copy of the appropriate correspondence.
In prepared written responses and/or oral responses to the
letters of proposed removal, allegations were made in
some cases that the agency did not provide the informa-
tion needed to prepare an adequate defense to the charge;
however, the agency maintains that appellant was indeed
provided the opportunity to review and obtain copies of
all material relied on to support the action. When raised,
the appellant was informed that the additional documents
requested were not used to support the action and the re-
quest would! not serve as a basis for extending the notice
period. The agency did not adopt any unique or different
definitions of the terms ‘‘strike’’ and/or ‘‘participate’’;
therefore, the common English usage of the terms are ap-
plicable in all cases.
Appellant was also specifically notified of the right to
reply both orally and/or in writing. Those that failed to
reply did so at their own election. The deciding official
gave due consideration to the evidence available and the
appellant’s response, if any, prior to making a decision
that the proposed action would be sustained as a
preponderance of the evidence warranted the individual’s
removal. Appellant was informed in writing of his/her
F16
right to appeal the decision and necessary appeai forms
and regulations were provided with the decision letter.
Because the preponderance of the evidence indicated ap-
pellant had engaged in an illegal strike against the United
States Government as prohibited by 18 USC 1918 and 5
USC 7311, there was basis to believe that the individual
had committed a crime for which a sentence of imprison-
ment could be imposed. Under these circumstances, the
agency was within its rights to invoke the ‘‘crime provi-
sion’’ and shorten the notice period to a minimum of 7
days (S USC 7513(b)(1) and (2)). Because the employee
chose to withhold services from the public by participating
in a strike against the United States Government and being
absent without leave, the agency maintains that the
removal promotes the efficiency of the service.
The agency has not committed any harmful error in in-
itiating the removal action against appellant. Harmful er-
ror has been defined by the Board in Parker V. Defense
Logistics Agency as ‘‘Error by the agency in the applica-
tion of its procedures which, in the absence or cure of the
error, might have caused'the agency to reach a conclusion
different than the one reached. The burden is upon the ap-
pellant to show that based upon the record as a whole the
error was harmful; i.e., caused substantial harm or prej-
udice to his/her rights.’’ All actions taken were in accord-
ance with existing rules and regulations and are, therefore,
consistent with all applicable laws.
F17
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
Southwest Region
August 21, 1981
Mr. Harold J. DesVignes
14127 Merry Meadow Drive
Houston, Texas 77049
Dear Mr. DesVignes:
My letter of August 8, 1981, informed you of a proposal
to remove you from your position of Air Traffic Control
Specialist. I have given full consideration to your written
submission dated August 17, 1981.
I find that both of the reasons in the letter of proposed
removal are fully supported by the evidence and warrant
your removal to promote the efficiency of the service. It is
my decision, therefore, that you be removed effective
August 24, 1981.
You have the right to appeal this removal to the Merit
Systems Protection Board (MSPB), or to grieve the action
under the PATCO/FAA agreement, but not to do both. If
you elect to appeal this action, you must submit an appeal
to the Chief Appeais Officer, Merit Systems Protection
Board, !100 Commerce Street, Dallas, Texas 75242, dur-
ing the period beginning with the day after the effective
date of the removal until not later than 20 calendar days of
the effective date. Enclosed is a form which you may use
in submitting an appeal and a copy of the MSPB regula-
tions.
If on the other hand, you believe this action violates Ar-
ticle 69 and you choose to file a grievance, you must sub-
mit a written grievance to me no later than 15 calendar
Fi8
days after the effective date of the removal. In this connec-
tion you should know that the FAA has filed an Unfair
Labor Practice (ULP) charge against PATCO for its role
in the strike and is seeking to have the union decertified.
The case is now being processed by the Authority, and
determination that PATCO committed a ULP could im-
pact on the processing of grievances under the PAT-
CO/FAA agreement. If the union is decertified and the
agreement terminated, this avenue of appeal may not be
available to you. If you elect to file a grievance, it must be
filed in accordance with Article 7, Section 8, of the agree-
ment and submitted on FAA Form 3770.2. The grievance
will be processed beginning with step 2 of the grievance
procedure in the agreement.
Upon your request, Labor Relations Branch, ASW-16,
FTS 736-9276 or commerciai number (817) 624-4911, ex-
tension 276, will give you further information on appeals
procedures to the Merit Systems Protection Board.
Original signed by
ARNOLD E. PRICE
Chief, Houston Center
2 Enclosures.
Gl
Appendix G—Block et al. v. F.A.A. _... MSPR ___
(Docket No. DA075281F0892, 1/3/83) MSPB Presiding
Officials Decision in the Consolidation Case Which In-
corporated DesVignes Appeal.
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
Dallas Regional Office
RICHARD W. BLOCK et ai.,'
Appellants,
v.
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION,
Respondent.
Docket No. DA075281F0892
Date: January 3, 1983
' The appellants in this appeal are identified in Appendix A attached
hereto. The appellants in this appeal were initially consolidated into
the following appeals: Richard W. Block et al. v. DOT, FAA, MSPB
Docket No. DA075281F0892; Robert G. Haas et al. v. DOT, FAA,
MSPB Docket No. DA075281F 1498; Steven Alex et al. v. DOT, FAA,
MSPB Docket No. DA075281F 1329; and Michael Arends et al. v. DOT,
FAA, MSPB Docket No. DA075281F 1583. On August 6, 1982, the ap-
pellants were reconsolidated into the appeals of Richard W. Block et
al. v. DOT, FAA, MSPB Docket No. DA075281F0892; Merle L.
Browning et al. v. DOT, FAA, MSPB Docket No. DA075281F 1468;
Donald §S. Lewis et al. v. DOT, FAA, MSPB Docket No.
DA075281F 1476; and Gary Beller et al. v. DOT, FAA, MSPB Docket
No. DA075281F 1405.
G2
DECISION
Introduction
Appellants filed appeals from the actions taken by the
Department of Transportation, Federal Aviation Adminis-
tration, which removed them from their positions of air
traffic controller with the Houston Air Route Traffic Con-
trol Center, the Houston Intercontinental Control Tower,
the Houston Hobby Air Traffic Control Tower, the Beau-
mont Air Traffic Control Tower, and the David Wayne
Hooks Air Traffic Control Tower. A hearing was conducted
on this consolidated appeal on September; 15 through 18,
1982, at Houston, Texas. In a statement of facts and is-
sues, filed on August 30, 1982, appellants also appealed
from allegedly illegal suspension actions effective on the date
of the notices of proposed removal.
Jurisdiction
An employee may submit an appeal to the Merit Systems
Protection Board (the Board) from any action which is ap-
pealable to the Board under any law, rule, or regulation.
5 U.S.C. §7701(a). An employee in the competitive service
who is not serving a probationary period has a statutory
right to appeal a removal action to the Board. 5 U.S.C.
§§7511-7513. A petition for appeal may be filed with the
appropriate Board regional office any time during the period
beginning with the day after the effective date of the ac-
tion being appealed, but not later than 20 days after the
effective date. 5 C.F.R. §1201.22(b) (1982). An appellant
has the burden of proof as to issues of jurisdiction and time-
liness of filing. 5 C.F.R. §1201.56(a)(2) (1982).
Each appellant, at the time of his removal, was an em-
ployee in the competitive service and was not serving a
probationary period. The petitions for appeal were filed
G3
within the required time limits. Accordingly, the appeals
of the removal actions are within the Board’s jurisdiction.
In a statement of facts and issues filed with the Board
on August 30, 1982, appellants alleged that they had been
illegally suspended by the agency during the notice period
of the removal actions. It is not disputed that controllers
who did not report to work by a specified deadline were
not allowed to report to work prior to their removal from
their positions and that they were placed in a non-duty, non-
pay status by the agency pending the completion of the re-
maining actions. Appellants argued that these actions by
the agency constituted de facto suspensions which deprived
them of the procedural protections required by 5 C.F.R.
Chapter 75. Appellants contended that their failure to raise
the suspension issue in the initial petitions for appeal was
irrelevant in that the Board’s regulations provide that
‘‘If]ailure to raise a claim or defense in the petition shall
not bar its submission later unless to do so would prejudice
the rights of the other parties and unduly delay the proceed-
ings.’ 5 C.F.R. §1201.24(a)(9) (1982).
Assuming, without deciding, that the agency’s actions
constitute suspension actions, I find appellants’ arguments
to be without merit. A careful reading of 5 C.F.R.
§1201.24(a)? reveals that the Board makes an obvious dis-
75 C.F.R. §1201.24 (1982) provides in part:
(a) Contents. Petitions for appeal must be filed by the em-
ployee, his/her designated representative or a party prop-
erly substituted under §1201.35. Petitions may use any
format, including letter form, but must contain the fol-
lowing:
(2) The action taken by the agency and its effective date;
(9) Signature by the appellant and representative, if any.
Failure to raise a claim or defense in the petition shall
not bar its submission later unless to do so would pre}-
udice the rights of the other parties and unduly delay the
proceedings.
G4
tinction between the ‘‘action’’ being appealed and ‘‘claims
and defenses.’’ The regulation provides that a petition for
appeal must at a minimum state ‘‘[t]he action taken by the
agency and its effective date,’’ 5 C.F.R. §1201.24(a)(2)
(1982) (emphasis added), and that with respect to that ac-
tion, other claims and defenses may be raised in the course
of the proceeding so long as there is no prejudice to the other
parties and undue delay. 5 C.F.R. §1201.24(a)(9) (1982).
I find that the regulations do not contemplate the raising
of an issue by any party which would constitute a separately
appealable action on which initial determinations of juris-
diction and timeliness would have to be made. Accordingly,
I find that the alleged suspension actions have not been
raised in such a manner as to bring them within the juris-
diction of the Board, and therefore, arguments and evidence
pertaining to those alleged actions will not be considered
further herein.
Analysis and Findings
Appellants were removed from the service for two rea-
sons. The first was that each appellant had participated in
a strike against the United States Government in violation
of 5 U.S.C. §7311 which provides, ‘‘[a]n 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 in viola-
tion of 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. The
ie RE,
G5
second reason for the removals was the charge of unauthor-
ized absence.’
The terms ‘‘striking’’ and ‘‘participating in a strike’’ have
been held to mean 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). With respect to the burden of
proof necessary to establish a prima facie case of an em-
ployee’s participation in a strike, the Board has held that
evidence of an employee’s unauthorized absence from duty
and his presence among picketers may constitute a prima
facie case of his participation in a strike. Duckett and Yard-
ley v. Tennessee Valley Authority, MSPB Docket No.
AT07528010325 (February 19, 1982). The Board has also
stated that, ‘‘In a case, such as this one, in which the exis-
tence of a strike is a matter of general knowledge, the agency
may establish a prima facie case of an employee’s volun-
tary participation therein by presenting evidence of his un-
authorized absence from duty during the strike.’’
Schapansky v. Department of Transportation, Federal Avi-
ation Administration, MSPB Docket No. DA075281F1130
(October 28, 1982).
In support of the charge that appellants had participated
in a strike against the United States Government, the agency
furnished documents reflecting the existence of a strike
cailed by the Professional Air Traffic Controllers
Organization‘ beginning on August 3, 1981; watch sched-
*A decision of an agency to remove an employee shall be sustained
by the Board only if the agency’s decision is supported by a prepon-
derance of the evidence. 5 U.S.C. §7701(c)(1)(B). A preponderance of
the evidence has been defined by the Board to be that degree of rele-
vant evidence which a reasonable mind, considering the record as a
whole, might accept as sufficient to support a conclusion that the mat-
ter asserted is more likely to be true than not true. 5 C.F.R. §120!1.56
(c)(2) (1982).
‘The Professionai Air Traffic Controllers Organization will here-
inafter be referred to as PATCO.
G6
ules which reflected when each appellant was scheduled to
work; personnel sign-in logs and time and attendance
records which showed that each appellant had failed to
report for work when scheduled beginning on August 3,
1981, and thereafter; and that each appellant had been ab-
sent without leave during this period of time.
The agency also provided testimony from each of the five
facility chiefs involved in this appeal.’ The facility chiefs
all testified that none of the appellants had reported for duty
beginning at 7 a.m. Eastern Daylight Time on August 3,
1981, through their first regularly scheduled shift after
eleven o’clock Eastern Daylight Time on August 5, 1981,
that none of the appellants had leave or excused absence
for that period of time, that none of the appellants had
called and indicated that they wanted to report but were
somehow prevented from so doing, that none of the appel-
lants had had previous instances of absence without leave,
and that none of the appellants had called the facility prior
to their receipt of the notice of proposed removal (Tr. pp.
48, 49, 156-160, 544-547, 690-694. and 903-905).
The agency, citing Ketcham v. Department of Transpor-
tation, Federal Aviation Administration, MSPB Docket No.
DA075281F0713 (May 28, 1982), moved that I take offi-
cial notice® that an unlawful strike of air traffic controllers
had commenced on August 3, 1981, and continued at least
‘Arnoid E. Price was the Chief of the Houston Air Route Traffic
Control Center; Francis E. Davis was the Chief of the Houston Inter-
continental Air Traffic Control Tower; Curtis D. Jenkins was the Chief
of the Houston Hobby Air Traffic Control Tower; Harell R. Edwards
was the Chief of the Beaumont Air Traffic Control Tower; and James
A. Jones was the Chief of the David Wayne Hooks Air Traffic Con-
trol Tower.
*A presiding official may take official notice of matters of com-
mon knowledge or matters that can be verified. Official notice taken
of any fact satisfies a party’s burden of proving the fact noticed. 5
C.F.R. §1201.67 (1982).
al lil
G7
through August 6, 1981. That motion was granted subject
to refutation by appellants.
In an attempt to refute the motion for official notice, the
appellants cited the decision of Judge Greene stating that
the strike had ended on August 6, 1981, at 8 a.m. U.S. v.
PATCO, 524 F. Supp. i60 (D.D.C. 1981). The appellants
also cited statements made by various high ranking govern-
ment officials stating that the strike had concluded earlier
than August 6, 1981. For example, President Reagan an-
nounced on August 3, 1981, at approximately 11 a.m., that
if the air traffic controllers did not report for duty within
forty-eight hours they would have forfeited their jobs and
would be terminated. 17 Weekly Comp. Pres. Doc. 845
(1981). Similarly, on August 5, 1981, Secretary of Trans-
portation Drew Lewis announced that as of eleven o’clock
on that date the strike was over. Appellants also relied upon
court papers that the government had filed in which the
government purportedly admitted that the strike had ended
no later than August 8, 1981 (Appellant’s Exhibit DD).
These factors, however, were all considered by the Board
when it issued its decision in Ketchem and concluded that
it was appropriate to take official notice that the strike con-
ducted by PATCO continued at least through August 6,
1981. See also Ketchem v. Department of Transportation,
Federai Aviation Administration, MSPB Docket No.
DA075281F0713 (Order issued November 23, 1982). On
consideration of the record, I find that appellants have not
presented sufficient evidence to refute the basis for taking
official notice that the strike conducted by PATO con-
tinued at least through August 6, 1981.
Ten of the appellants in this appeal were charged with
participating in a strike on dates subsequent to August 6,
1981. These dates range from August 7, 1981, through Au-
gust 16, 1981. In Ketchem, the Board held that where an
employee is charged with participation in a strike on a date
G8
subsequent to August 6, 1981, the agency bears the burden
of proving by direct evidence that the strike was in fact in
progress on the date charged and that the employee could
have returned to work on that date.
In order to show that the strike conducted by PATCO
had continued past August 6, 1981, the agency submitted
a transcription of a tape recording which was available by
calling the Washington headquarters of PATCO. The
agency asserted that the message in question had been taped
on September 21, 1981. In that message, Robert Poli, the
President of PATCO, stated, ‘‘[iJt’s been a tough strike,
it’s been a long strike, but . . . pick your head up, hold it
high as being the kind of people who are proud to be on
strike, even as difficult as it is, and know that our cause
is worthwhile. If we get that reinstilled in all of us, we will
prevail’’ (Exhibit R-XXX-272). The agency also submitted
two copies of PATCO Presidential Updates, dated Septem-
ber 25, 1981, and October 8, 1981. The September update
contains, inter alia, the following statements, ‘‘[a]s the
eighth week of this strike draws toaclose...’’; ‘‘[a]s this
strike continues, indications mount that the Reagan Ad-
ministration is being pressured to settle’’; and ‘‘I must con-
vey to you my strong belief that we can and will win this
strike’’ (Exhibit R-XXX-272). The October update contains,
inter alia, the following statements, ‘‘[a]s I write this let-
ter, we are now 67 days into a strike that many of you
thought would last no more than a few days or weeks’’ and
**T cannot teil you that the strike will end soon. . .’’ (Ex-
hibit R-XXX-272). The agency also submitted the sup-
plementai opinion of Ronald W. Haughton, Chairman,
Federal Labor Relations Authority, in which he stated that
the FLRA had found that the strike by PATCO was still
in existence on October 22, 1981. PATCO v. Federal A via-
tion Administration, 7 FLRA No. !0 (October 22, 1981).
G9
Mr. Price testified that picketing a‘ his facility had con-
tinued into October of 1981 (Tr. pp. 866, 867). Mr. Davis
testified that picketing at his facility had lasted through
Labor Day (Tr. p. 676). Ms. Marion Hein, Special Agent,
and Mr. Keith Rogers, Military Liaison and Security
Officer, testified that they had been assigned to take photo-
graphs of employees engaging in picketing activities at the
Houston Center throughout the month of August. Ms. Hein
testified that she observed such picketing, that the picketers
carried signs that said ‘‘on strike’’, and that such picketing
lasted throughout the month of August (Tr. pp. 196, 197).
Mr. Rogers testified that he had taken pictures of picket-
ing activities through August 29, 1981, and that the pick-
eters had carried signs stating that they were on strike (Tr.
pp. 240, 241).
The agency also submitted a number of photographs
which had been taken by Ms. Hein and Mr. Rogers which
support the position of the agency that the strike conducted
by PATCO lasted well after August 6, 1981. These photo-
graphs show many of the appellants engaging in picketing
activities outside of the Houston Air Traffic Control Center
and carrying signs which stated ‘‘AFL-CIO PATCO Air
Traffic Controllers on Strike,’’ ‘‘PATCO Air Traffic Con-
trollers on Strike,’’ and ‘‘PATCO Strikes’’. These photo-
graphs were taken at various times between August 4 and
August 29, 1981. The agency also submitted a number of
statements from controliers and supervisory personnel con-
cerning the existence of picketing at the Houston Air Route
Traffic Control Center from August 3, 1981, through Sep-
tember 4, 1981 (Exhibits R-ZHU-19! through R-ZHU-220).
The appellants in this appeal did not present any evidence
with respect to the question of the duration of the strike
conducted by PATCO other than that which has already
been considered in the discussion on taking official notice
under Ketchem, supra. That evidence and argument can-
G10
not be determinative of the question of whether the strike
existed past August 6, 1981, since it primarily supports the
proposition that the strike ended no later than August 6,
1981, at 8 a.m. The Board, in Ketchem, supra, explicitly
rejected that argument when it took official notice that the
strike continued at least through August 6, 1981.
Although it is true that much of the evidence submitted
by the agency to support the proposition that the strike con-
tinued past August 6, 1981, consisted of hearsay evidence,
the Board has held that such evidence is admissible in ad-
ministrative hearings and that it remains for the presiding
official to weigh the probative value of that evidence in light
of the cirumstances of the particular case. Jackson v. Army,
MSPB Docket No. AT07528110273 (February 3, 1982); Bor-
ninkhof v. Department of Justice, MSPB Docket No.
SF075209008 (February 27, 1981). It is further noted that
none of the appellants, who were charged with striking on
dates subsequent to August 6, 1981 elected to testify at the
hearing. The Board has held that an appellant’s exercise of
his fifth amendment right not to testify does not preciude
a presiding official from drawing an adverse inference from
that refusal. Book v. United States Postal Service, MSPB
Docket No. SL07528010067 (May 26, 1981), aff’d, 675 F.2d
158 (8th Cir. 1982). In this case, those appellants who were
charged with striking after August 6, 1981, presented no
response to the agency’s assertions and evidence that the
reason for their failure to report for duty when scheduled,
after August 6, 1981, was because they had participated in
the strike. Under these circumstances, I find it is appropri-
ate to draw an adverse inference from the appellants’ failure
to testify. On consideration of the record, I find that the
agency has shown that it is more likely to be true than not
true that the strike conducted by PATCO which commenced
on August 3, 1981, was still in existence at least through
and including August 16, 1981.
Gil
It still must be determined whether the appellants who
were charged with striking after August 6 would have been
allowed to return to work on the date of which they were
charged with striking. Nine of the ten appellants in this ap-
peal who were so charged had been employed at ihe
Houston Air Route Traffic Control Center. Mr. Price tes-
tified that an employee was not to be issued a notice of pro-
posed removal as long as he reported by his deadline (Tr.
pp. 865, 866). He testified that one employee had met his
deadline a week to ten days after August 8 because he had
been on annuai leave and the agency had been unable to
contact him to cancel that leave (Tr. p. 898). The other ap-
pellant who was charged after August 6, 1981, had been
employed at the Beaumont Air Traffic Control Tower. Mr.
Edwards testified that a striking controller by the name of
Wayne Brodd had been allowed to report for duty by his
deadline. He also declared that no other striking controller
had contacted him or any of his supervisors prior to the
start of his deadline shift (Tr. p. 79).
The record contains further evidence that the appellants
charged with participating in the strike after August 6 could
have reported to duty on their deadline date. For example,
the agency’s file submitted in the appeal of appellant John
R. Harris (who was charged with participation in the strike
beginning on August 15 , 1981) shows that he called his fa-
cility on August 15, 1981, and requested sick leave. Assis-
tant Chief Mike Thompson wrote a memorandum of that
conversation which is dated August 15, 1981. Mr. Thomp-
son stated that he disapproved appellant Harris’ request and
told him that he should report for duty as scheduled on Au-
gust 15 at 4 p.m. He informed Mr. Harris that if he did
not report he would be considered absent without leave and
participating in the strike. Mr. Thompson then stated ‘‘ John
acknowledged this information and said that he would con-
sider it but that he did not think that he would be in.’’
Gi2
Appellant William B. Harvey was charged with participat-
ing in the strike beginning on August 9, 1981. The agency
submitted a memorandum from Gilbert A. Bode, who was
appellant Harvey’s supervisor. In that memorandum, Mr.
Bode stated that he had made a telephone call to Mr. Har-
vey while he was on military leave and that he ‘‘directed
William B. Harvey Jr. to report for work at the Houston
ARTCC on Sunday 8-9-81 at 1500 CDT.’’’
In the agency’s file submitted in the appeal of Albert L.
James, there are a number of memoranda from appellant
James’ supervisor. In those memoranda, the supervisor
stated that he had talked to appellant James’ daughter and
told her that his leave had been cancelled and that he should
report to work. The supervisor talked to appellant James’
daughter again on August 6, 1981, and she told him that
he had received the message. On August 8, 1981, the su-
pervisor personally talked to appellant James and told him
that his annual leave was cancelled and that he should report
to work at 7 a.m. on August 9, 1981. Finally, the supervi-
sor called appeilant James again on August 9, 1981, at 5:50
a.m. and, at that time, Mr. James told him that he was not
coming to work.
As previously discussed, all of the facility chiefs testified
that none of the appellants had contacted them and indi-
cated that they wanted to report to work but were some-
how prevented from so doing. Furthermore, none of the
appellants who were charged with striking after August 6,
1981, presented any evidence to show that they had at-
tempted to report for work by their deadline after August
6, 1981, and had been refused permission to do so by the
agency. Accordingly, I find that the agency has shown by
a preponderance of the evidence that any striking controller
could have returned to duty for his first regularly sched-
71500 is the FAA’s terminology for 3 p.m.
G13
uled shift after 11 a.m. on August 5, 1981, and specifically
that the ten appellants charged with striking after August
6, 1981, could have returned to work on the dates that they
were charged with participating in the strike.
Since I have taken official notice of the existence of the
strike by PATCO from August 3 through August 6, 1981,
and since I have found that the agency has shown by a
preponderance of the evidence that the strike continued at
least through and including August 16, 1981, and since the
agency provided uncontroverted evidence that each of the
appellants was absent without authorization during the
strike as charged, I find that the agency has established a
prima facie case of each appellant’s voluntary participation
in a strike against the government and unauthorized absence
as charged.
As the Board noted in Schapansky, supra, the ultimate
burden of establishing each appellant’s participation in the
strike remains on the agency. Nevertheless, the Board stated
that once the agency establishes a prima facie case the bur-
den of persuasion would then shift to the employee to rebut
the agency’s case by presenting evidence to show that he
had no knowledge of the existence of the strike or to demon-
strate that his absence was due to some factor other than
intentional participation in the strike.
All of the appellants in this appeal were represented by
the law firm of Richard J. Leighton or by PATCO. A joint
statement of facts and issues was filed in their behalf on
August 30, 1982. (Appellate File, Tab 47). Consideration
of individual circumstances for these appellants will be
limited only to those facts and issues raised in the joint state-
ment of facts and issues and only as to those appellants for
Gl4
whom those representatives indicated those facts and issues
were applicable.’
Appellants alleged that because of wide spread confusion
over the agency’s application of President Reagan’s dead-
line the agency was estopped from alleging that they would
have been allowed to report for work after 11 a.m. on Au-
gust 5, 1981. The agency implemented the general policy
enunciated by the President in a slightly more flexible man-
ner than might have been inferred from his remarks. See
GENOT 127, Appellate File, Tab 12. The ‘‘moratorium’’
or ‘‘grace period’’ served to render the ATC cases distin-
guishable from the normal or common federal personnel
action. I cannot find, however, that the situation in any way
prejudiced the rights of appellants.
The plain meaning of the President’s remarks was that
striking controllers were given an option to cease and desist
from their otherwise actionable misconduct. The agency was
given the authority, and implicitly the responsibility, of de-
termining whether to take personnel actions against in-
dividual controllers. An employee who had participated in
the strike on August 3-5 could return to work if he chose.
*Several appellants raised claims in their oral and/or written re-
plies or in their petitions of appeal. In the Board’s Order Providing
for Consolidation, Amending Pre-Hearing Orders and Orders Relat-
ing to Service (February |, 1982), the parties were ordered to file state-
ments of facts and ali issues alleged. This decision will make no find-
ings on any claims or issues not raised in the statement of facts and
issues. See Lane v. Geiger-Berger Assoc., P.C., 608 F.2d 1148 (8th Cir.
1979); Rath Packing Co. v. Becker, 530 F.2d 1295 (9th Cir. 1975), cert.
denied, 430 U.S. 954 (1977); Bettes v. Stonewall Insurance Co., 480
F.2d 92 (Sth Cir. 1973); and Helis v. Usry, 464 F.2d 330 (Sth Cir. 1972).
In a few instances, appellants attempted, in their closing argument, to
resurrect issues Or to initiate new claims not raised in the statement of
facts and issues. These belated attempts must fail, however, since a post-
trial memorandum cannot be used to raise an issue which had not been
included in the statement of facts and issues in compliance with the
Board’s above mentioned Order. See G & R Corp. American Security
& Trust Co., 523 F.2d 1164 (D.C. Cir. 1975).
G15
Rather than harming appellants, the President’s remarks
(which were widely disseminated in the visual and print me-
dia) served to benefit the employees in question by clarify-
ing the government’s intended actions in response to the
7:00 a.m., August 3 job action in further specifying the ef-
fect of the policy on an individual’s employment status. The
clear import of the President’s remarks was that individual
employees had not been, and would not be, disciplined prior
to the conclusion of the grace period. Moreover, the ap-
pellants failed to provide any evidence to show that any of
them were actually confused over the application of the
deadline, and the facility chiefs testified that none of the
appellants had called to ascertain whether they could or
could not report to work.
Appellants also alleged that the agency had, by locking
them out or telling them that they were fired, prevented them
from reporting to work for their first scheduled shift after
11 a.m. on August 5, 1981, and had thus denied them the
opportunity to take part in the President’s grace period. The
only appellant to provide any evidence with respect to this
allegation was Edward R. Stout. He testified that facility
chief Edwards had telephoned him on the morning of Au-
gust 4, 1981, and asked him if he would work overtime.
He declined to work overtime because he was tired and, at
that point, Mr. Edwards said ‘‘[w]ell, we’ll see about that.
That’s all for you’’ (Tr. p. 89). Mr. Stout testified that he
understood this statement to mean that he was fired because
of the anger in Mr. Edwards’ voice and the fact that they
had never gotten along very well (Tr. p. 90).
Mr. Edwards stated that he had called appellant Stout
on August 4 and ordered him to come to work because there
was a strike and his presence was needed at the facility. He -
averred that Mr. Stout refused to come to work and stated
that he would like to but that he had better not. At that
point, Mr. Edwards stated that he concluded the conversa-
G16
tion by saying ‘‘Okay. Goodbye”’ (Tr. p. 71). Mr. Edward
specifically denied that he had stated anything to the effect
of ‘‘we’ll see about that, that’s all for you’’ (Tr. p. 71). I
find Mr. Stout’s recollection of the telephone conversation
less credible than Mr. Edwards’ recollection. Mr. Stout ad-
- mitted that he had voted for a strike in June of 1981, that
he was aware of the strike in August of 1981, and that he
had never contacted the facility until after he received the
notice of proposed removal (Tr. pp. 91, 93, 96). Further-
more, Mr. Stout’s claim that he had not reported for duty
because he believed his facility chief had fired him on Au-
gust 4, 1981, was raised in a general way for the first time
in the statement of facts and issues, and it was not until
the time of the hearing that the specifics behind his conten-
tion were revealed to the Board or to the agency. Appel-
lant did not raise this claim in his replies to the notice of
proposed removal. The Board has held that an appellant’s
failure to deny a charge when responding to a notice of pro-
posed adverse action makes a subsequent denial entitled to
less weight. Risner v. Federal Aviation Administration,
MSPB Docket No. SL075209067 (August 25, 1981). Simi-
larly, Mr. Stout’s failure to raise this claim until over a year
after the notice of proposed removal was issued renders his
claim entitled to less weight. On consideration of the record,
I find that appellant Stout has failed to rebut the agency’s
prima facie case of participation in the strike.
Although the appellants’ statement of facts and issues list
a number of other appellants who also contended that they
had been locked out or told that they were fired and thereby
prevented from reporting to work for the first scheduled
shift after 11 a.m. on August 5, 1981, none of those appel-
lants provided any evidence to show that any of them had
been locked out, that any of them had been told that they
were fired, or that any of them had attempted to report for
work and had been refused permission to do so. Moreover,
G17
the record in this appeal clearly establishes that striking con-
trollers were allowed to report for work by their respective
deadlines. Finally, the Board, in deciding Ketchem, supra,
determined, while considering the confusion as to the exist-
ence and duration of the strike, that a number of controllers
could have returned to work after August 5, 1981.
Appellant Donald R. Poore alleged that he had been on
approved annual leave from July 30 through August 6, 1981,
and that he had received no notice of cancellation of that
leave.’ Mr. Poore did not testify or submit any other evi-
dence to support this allegation. The record shows that Mr.
Poore was charged with striking beginning on August 3,
1981, at 10 a.m. The watch schedule which was submitted
by the agency shows that Mr. Poore had been scheduled
for annual leave but that the leave had been cancelled. in
addition, Mr. Jones testified that Mr. Poore’s leave had
been scheduled in conjunction with a familiarization flight.
Mr. Jones averred that when Mr. Poore picked up his tickets
for the flight, he had been briefed that in the event of a
strike all leave was cancelled and that he should call the fa-
cility at eight a.m. on August 3, 1981, but Mr. Poore had
failed to do so (Tr. pp. 148, 164). Thus while the record
shows that appellant Poore had originally been scheduled
for annual leave, the evidence shows not only that his leave
was cancelled by the agency but also that he was so noti-
fied. Finally, since appellant’s claim was raised for the first
time in the statement of facts and issues, filed on August
*Appellant Poore was the only appellant who is listed in the state-
ment of facts and issues as claiming that he did not receive notification
of cancellation of his annual leave. However, at the hearing, appellant
David R. Burns attempted to raise this defense. For the reasons previ-
ously expressed in this decision, appellant Burns may not raise that is-
sue. Moreover, even if it were found that appellant Burns was allowed
to raise this issue, the record evidence conclusively shows that he did
receive notice of the cancellation of his annual leave (see Tr. pp. 32,
33, 130-132).
G18
30, 1982, that claim is not entitled to great credibility. See
Risner, supra.
Appellants David R. Burns, Edward G. Gowler, Alex
Guzman, Albert James, and Donald R. Poore claimed that
they had been on approved annual leave during all or part
of the period for which they were charged with striking and
unauthorized absence and that the agency’s attempt to can-
cel their leave was invalid. The appellants argued that the
cancellation efforts were ‘‘invalid’’ because the FAA-
PATCO collective bargaining agreement provided that an-
nual leave could only be cancelled in the event of an opera-
tional emergency or at the request of the employee. None
of the appellants had requested that their annual leave be
cancelled, and they argued that no such emergency could
have existed prior to August 3, 1981. Therefore, the agency’s
notification of leave cancellation prior thereto was invalid.
The testimony of the facility chiefs, and the deposition
of Richard Failor, Chief, Air Traffic Division, Southwest
Region, show that the agency had promulgated a policy of
cancelling all scheduled annual leave in the event of a strike
(See appellants Exhibit KK). Efforts to notify all controllers
of this policy included placement of notices to this effect
in mandatory reading binders and personal notification by
supervisors. Pursuant to this policy, the appellants were
notified that their leave was cancelled.
Appellants’ argument fails since they have failed to
show that no operational emergency existed, or that a
violation of Article 28, the controlling provision of the
collective bargaining agreement, even if it had occurred,
rendered the leave cancellations invalid.
With respect to the existence of an emergency, it is plain
that an operational emergency existed as a result of the job
action on August 3, 1981. See Schapansky, supra;
Ketchem, supra. In addition, it cannot credibly be denied
that the possibility of the occurrence of such an opera-
G19
tional emergency was reasonably foreseeable. The ap-
pellants have cited no provisions of the contract nor of-
fered arly evidence or argument as to the existence of any
mandatory procedures required to formally proclaim that
an emergency exists, or is predictably about to exist. Ab-
sent such evidence, I find that the contract requires only a
determination as to the existence or reasonable likelihood
of the existence of an operational emergency in order to
permit the agency to prospectively cancel approved ad-
vanced leave or to actually so cancel such leave during the
duration of the emergency. To interpret the contract as re-
quiring a ‘‘formal’’ declaration of an operational emerg-
ency, or to require that the emergency actually occur
before leaves might be cancelled is unreasonable and
elevates form above substance.'° It is more reasonable to
conclude, instead, that the contract provisions were in-
tended to cover the circumstances which existed in the in-
stant case. I find, therefore, that the agency did not violate
the collective bargaining agreement in cancelling the ap-
pellants’ leaves. Accordingly, their leaves were effectively
cancelled, and the appellants have not rebutted the
agency’s prima facie case of participation in the strike and
unauthorized absence.
Finally, even if the leave cancellations were in violation
of the contract, such a violation does not render that ac-
tion invalid per se or otherwise establish the existence of
any harmful procedural error. The courts and the Board
have held that individuals do not have unfettered discre-
tion to disobey or ignore agency orders which may later be
'°The Board has held that it, and its presiding officials, have the
authority and the responsibility to interpret collective bargaining
agreement provisions where necessary for resoiution of a matter. This
is particularly true since contracts are enforceable against an agency
and have the force of regulation. Giesler v. Department of Transpor-
tation, 3 MSPB 367 (1980).
G20
found to have violated a collective bargaining agreement
or to be otherwise not in accordance with law. Gragg v.
Department of the Air Force, MSPB Docket No.
DA07528010134 (September 16, 1982), citing Walker vy.
City of Birmingham, 388 U.S. 307 (1967). Redress for ap-
peilants’ claims concerning the cancellation of leave was
available under the contract through established grievance
procedures. Accordingly, their failures to report for duty
as ordered on the dates indicated were not reasonable or
justified, even if the orders were in violation of the con-
tract. Compare, Whirlpool Corporation v. Marshall, 445
U.S. 1 (1980).
It was also alleged in the statement of facts and issues
that three appellants had been on approved sick leave dur-
ing all or part of the period for which they were charged
with striking and unauthorized absence. These appellants
were identified as Darryl L. Either, allegedly on sick leave
from August 2 through August 7, 1981; Geraid B. Hall,
allegedly on sick leave from July 31 through August 7,
1981; and John R. Harris, allegedly on sick leave on
August 14, 1981. There is no appellant in this appeal by
the name of Darryl L. Either. There is, however, an ap-
pellant by the name of Darryl L. Eitel for the purposes of
this decision, it will be assumed that the statement of facts
and issues meant to refer to Darryl L. Eitel.
None of the appellants raised the claim that they were
on approved sick leave prior to the filing of the statement
of facts and issues. As noted above, an appellant’s failure
to raise a defense until over a year after he is charged with
an offense detracts from the credibility of that defense.
Risner, supra. Moreover, none of these three appellants
provided any testimony or other evidence in support of
their claim that they had been on approved sick leave.
In addition, the case files submitted by the agency do
not support the appellants’ claims. For example, in the file
G2!
submitted in the appeal of Mr. Eitel, there is no reference
in the watch schedules, the personnel logs, or the time and
attendance records thai Mr. Eitel had been scheduled for
sick leave on the dates he claimed. Since Mr. Eitel failed to
present any evidence to show that he was on sick leave, I
must find that he has failed to rebut the agency’s prima
facie case.
Similarly, the agency file submitted in the appeal of ap-
pellant Hall fails to provided any supporting evidence for
his claim that he was on sick leave on the dates claimed.
Again, neither the watch schedules, the personnel logs, or
the time and attendance reports show that appellant Hall
was on approved sick leave during the time that he was
charged with being on strike. Moreover, appellant Haill’s
file contains a Houston Center Manpower Availability
Form'' which shows that he told his supervisor he would
not report for duty for his next scheduled duty time. Thus,
I find that appellant Hall has failed to rebut the agency’s
prima facie case of participation in the strike and unauth-
orized absence.
Finally, the case file submitted for the appeal of ap-
pellant Harris shows that he was not on sick leave at the
time he was charged with striking. Appellant Harris was
charged with striking beginning on August 15, 1981. Ap-
pellant Harris only claimed that he was on sick leave on
August 14, 1981, and therefore, even if his claim were
true, it would not effect the fact that he was charged with
striking on the following day. Moreover, the agency file
submitted with respect to Mr. Harris shows that he called
the facility on August 15, 1981, and asked his supervisor
for further sick leave and that that request was specifically
disapproved and he was ordered to report for duty. Ac-
''This form, which was dated July 30, 1981, was used bv the
Houston Center to help determine which employees intended to report
for work in the event of a strike.
G22
cordingly, I find that appellant Harris has also failed to
rebut the agency’s prima facie case of participation in the
strike and unauthorized absence.
It was also alleged in the statement of facts and issues
that appellants Allen J. Braden, Gerald B. Hall, John R.
Harris, William B. Harvey, and Donald R. Poore had per-
sonal circumstances which prevented them frora reporting
to work for their first scheduled shifts after 11 a.m. on
August 5, 1981, and that they were thus denied the oppor-
tunity to take part in the President’s moratorium or grace
period. The statement of facts and issues submitted by the
appellants states that the evidence to support this aliega-
tion would be the appellants’ testimony. None of the ap-
pellants testified concerning this allegation. Since there
was no other evidence presented in support of this allega-
tion, I can only speculate as to the possible reasons which
allegedly prevented the appellants from reporting to duty.
Absent any evidence presented by these appellants, ! find
that they have not rebutted the agency’s prima case that
they were on strike and absent without leave as charged.
None of the appellants presented any other evidence or
argument to show that they had no knowledge of the ex-
istence of the strike or that their absence was due to some
factor other than intentional participation in the strike.
Accordingly, I find that the agency has supported its
charges against the appellants by a preponderance of the
evidence.
Although I have found the charges to be supported by a
preponderance of the evidence, an agency’s decision to
remove an empioyee may not be sustained if the employee
(1) shows harmful! error in the application of the agency’s
procedures in arriving at such decision; (2) demonstrates
that the decision was based upon any prohibited personnel
practice described in 5 U.S.C. §2302; or (3) shows that the
G23
decision was not in accordance with law. 5 U.S.C.
§7701(c)(2).'?
The statement of facts and issues identified sixty-seven
appellants who alleged that the agency had committed
procedural error in that they had been denied the oppor-
tunity to make a meaningful oral reply. 5 U.S.C.
§7513(b)(2) provides that an appellant is entitled to a
reasonable time to answer orally and in writing and to fur-
nish affidavits and other documentary evidence in support
of the answer. Appellants set forth two reasons in support
of their argument that they had been denied a meaningful
opportunit’ to reply. First, they stated that President
Reagan’s statement on August 3, 1981, that all controllers
who did not report for work within forty-eight hours
would be terminated, meant that he was the de facto pro-
posing and deciding official and that none of the ap-
pellants had been allowed to present to reply to him or to
see the material that he had relied upon in making his deci-
sion. Contrary to the appellants’ allegations in this matter,
there is no evidence in this record to show that the Presi-
dent terminated any controller. All of the controllers in
this appeal were terminated by the respective facility chiefs
based upon their determinations that each appellant had
participated in the strike. Each facility chief who received
replies testified that he had considered the replies (Tr. pp.
51, 549, 696, 697, 908). Moreover, GENOT 141, which
contained guidance to deciding officials concerning the
consideration to be given responses from controllers,
specifically instructed deciding officials to exercise man-
agement judgement (Appellants Exhibit D). This GENOT
listed various factors which should be considered by the
deciding officials, but stressed that the most critical factor
in their decision was ‘‘sound management judgement.”’
'*An appellant has the burden of proof as to such affirmative
defenses. 5 C.F.R. §1201.56(b) (1982).
G24
Finally, the agency’s response to Discovery Order No.
ALJ-1 shows that nationwide the agency determined not
to remove seventy-two controllers who had been charged
with striking (Appellants Exhibit II). Thus, it was the
facility chiefs, and not the President, who were the
deciding official in these actions.
Appellants also contended that they had been denied a
meaningful opportunity to reply in that the agency had
followed a policy that all controllers found to have par-
ticipated in the strike were to be removed. There is no
evidence in this record that the deciding officials in this ap-
peal had reached a predetermined decision to fire all of the
appellants. What was predetermined was that those em-
ployees who were found to have participated in the strike
and who failed to return to work prior to their deadlines
had committed such serious acts of misconduct as to war-
rant removal without consideration of lesser penalties.
Each appellant had an opportunity to present evidence to
the deciding officials that he had not participated in the
strike. Accordingiy, I find that the action of the agency in
predetermining that all controilers found to have par-
ticipated in the strike would be removed has not been
shown by the appellants to have violated any procedural
requirement.
These sixty-seven appellants also alleged that they had
been denied the opportunity for oral replies. The ap-
pellants submitted no evidence to show which, if any, of
them had been denied the opportunity for an oral reply.
Although the record does show that many appellants in
this appeal did not make an oral reply, there was no show-
ing that they had been denied the opportunity to make
one. The agency presented evidence to show that all
employees were given the opportunity to make an oral re-
ply. For example, Mr. Price testified, without contradic-
tion, that any employee who requested an oral reply
G25
received one ‘‘as long as they called within the deadline
period’’ (Tr. p 921). The clear import of this testimony
was that any employee who contacted the center within
seven days after receipt of the notice of proposed removal
and asked for an oral reply was granted one. In further ex-
ample, Mr. Jones testified that none of the appellants
from his facility had asked for an oral reply (Tr. pp. 170,
171, 183). There was no evidence submitted by the ap-
pellants to show that any of the appellants at that facility
had asked to have an oral reply or written reply and that
that opportunity had been denied.'? Moreover, in each
case in this appeal, each appellant was notified by the
agency that he could submit a written or oral reply or both
within seven days of his receipt of the notice of proposed
removal. Absent any evidence provided by the appellants
to show that any of them had asked for and been denied
the opportunity to make an oral reply, I must find that
their allegation is not supported by the evidence. Finally,
assuming arguendo that error has been shown in this mat-
ter, appellants failed to make any showing as to how the
alleged error had harmed them.'‘
Appellants next alleged that the agency had violated 5
U.S.C. §7513(b)(2) in that the letters of proposed removal
stated that the appellants, ‘‘may reply to this notice. . .
''The agency files submitted for that facility show that the ap-
pellants sent a form letter to Mr. Jones requesting extensions of time
in which to make an oral reply. These requests for extensions of time
were denied, and appellants were informed that they could arrange
time for an oral reply by immediately contacting Mr. Jones by
telephone. Thus, all of these appellants could have
'*Harmful error has been defined as error by the agency in the ap-
plication of its procedures which, in the absence or cure of the error,
might have caused the agency to reach a conclusion different than the
one reached. The burden is upon the appellant to show that based
upon the record as a whole the error was harmful, i.e., caused
substantial harm or prejudice to his rights. § C.F.R. 1201.56(c)(3)
(1982).
G26
within seven calendar days after you receive this letter.”’
Appellants argued that this required a response in less than
seven days and therefore, in accordance with the Board’s
opinion in Ratley v. Department of the Army, MSPB
Docket No. AT07528110338 (September 17, 1982), the ac-
tions were reversible. In Ratley at 6, 7, the Board held:
Because 5 U.S.C. §7513(b)(2) provides that an
employee must have at least 7 days to respond to an
agency charge, any shorter period of time is in-
herently unreasonable and violates the require-
ments mandated by statute and is thus not in
accordance with law. See Land v. Federal Aviation
Administration, MSPB Docket No. CH07528110154
at 4 (July 21, 1982). In the instant case it is un-
disputed that appellant was given only 1 day to re-
ply to the proposed suspension notice. Contrary to
the presiding official, we find that a suspension
taken without complying with the procedural re-
quirements of 5 U.S.C. §7513(b)(2) clearly consti-
tutes harmful error under 5 U.S.C. §7701(c)(2)(A).
The statutory procedures governing removal actions are
set out at 5 U.S.C. §7513. Sections (b)(1) and (b)(2) there-
under prescribe time limits for notice to the employee of at
least thirty days, and a reply period of at least seven days.
The Board has had on a number of occasions the oppor-
tunity to consider whether failure to comply with these
limits constitutes error ‘‘per se,’’ or whether the effect of
the error must be considered under the ‘‘harmful error’’
standard enunciated by the Board in Parker v. Defense
Logistics Agency, 1 MSPB 489 (1980).
In considering the effect of procedural errors under 5
U.S.C. §7513, the Board has focused on whether the em-
G27
ployee’s ability to defend against the charges was impaired
by the error, Hunger v. Department of Interior, 2 MSPB
274 (1980), or whether the error otherwise had a likely ef-
fect on the agency’s action, Graham v. Postal Service, 2
MSPB 377 (1980). Relying on Hunger, the Board later held
in Cade v. Postal Service, MSPB Docket No.
SF07528010370 (November 24, 1981), that the notice of
charges is designed to afford the employee opportunity to
defend himself, and that a failure to afford him the full
period of time required therein is not reversible error ab-
sent a showing of harmful error by appellant. Citing Cade,
the Board affirmed in Gallego v. Department of Navy,
MSPB Docket No. SF07528110759 (July 21, 1982), appli-
cation of the harmful error doctrine by holding that the
shortening of the notice period by seven days was error.
The Board, however, also found that the error did not war-
rant reversal of the removal action under 5 U.S.C.
§7701(c)(2) and 5 C.F.R. §1201.56(a)(3). Jd. at 3.
Simultaneously with Gallego, the Board issued its deci-
sion in Land v. Federal Aviation Administration, MSPB
Docket No. CH07528110154 (July 21, 1982), and discussed
in detail the legislative history of the 5 U.S.C. §7513(b)(2)
seven day reply requirement. Stating in dicta that failure
to give seven days to respond is ‘‘not in accordance with
law,’’ the Board reversed the initial decision on other
grounds.” The first decision in which the Board had directly
before it a case involving less than seven days to reply was
Johnson v. Department of Treasury, MSPB Docket No.
DC075209213 (August 27, 1982). In Johnson, appellant’s
suspension was proposed on December 31, 1979. The no-
tice was received by appellant on January 2, 1980, and ap-
''The initial decision reversed the action on grounds that the agency
had improperly invoked the ‘‘crime provision’’ to shorten the thirty
day notice period required by 5 U.S.C. §7513(b)(1). The Board reversed
and remanded the case for a decision on the merits.
G28
pellant did not reply to the suspension. The agency issued
its decision six days later, notwithstanding notice to appei-
lant that she had seven days from receipt of the notice to
reply orally and in writing. The Board, after considering
Graham, Hunger, Gallego, and Cade, supra, concluded that
although ‘‘shortening of the reply period to less than seven
days was error,’’ appellant had not demonstrated prejudice
to her ability to present her case or that the error ‘‘likely
had a harmful effect upon the outcome before the agency.”’
In Ratley, issued less than three weeks later, the Board then
held that allowing Ratley only twenty-six hours to reply was
a violation of the law under 5 U.S.C. §7701(c) (2)(C), and
constituted clear harmful error. In this respect the Ratley
decision is somewhat inconsistent with the cases decided by
the Board under Cade, supra, holding statutory procedural
violations subject to the harmful error doctrine, and Gra-
ham, supra, holding regulatory procedural violations sub-
ject thereto.” However, Rat/ey did not reverse any of these
holdings, nor did it reverse the Board’s decision in John-
son, supra, that less than the full seven days to reply does
not mandate automatic reversal! per se, but that violation
thereof is subject to review under the harmful error stand-
ard enunciated by the Board in Parker, supra. Accordingly,
“Under the rules of statutory construction, effect must be given
to every word, clause and sentence of a statute, if at all possible, so
that no provision will be superfluous, inoperative or insignificant.
American Radio Relay League v. Federal Communications Commis-
sion, 617 F.2d 875 (D.C. Cir. 1980). This rule is violated if statutory
procedural errors are the basis for automatic reversal on grounds they
are not in accordance with law because both regulations and statutes
have the force of law. See Pearce v. Department of Labor, 647 F.2d
716, 726 (7th Cir. 1981). Thus, both statutory and regulatory viola-
tions must be reviewed under the same standard and only the ‘‘harm-
ful error’’ standard permits logical application. If the ‘*‘not in accord-
ance with law’’ provision were applied to both, for example, the harmfui
error standard would have no effect since no procedures would be sub-
ject thereto.
G29
I find in accordance with Johnson, supra, that the harmful
error doctrine applies in the instant case.
The statement of facts and issues identified forty appel-
lants who had made replies within less than seven days.
Although it is true that many of the appellants in this ap-
peal did reply in less than seven days” there was no evidence
provided by any appellant that he or she was forced to make
a reply in less than seven days time. It is also important to
note that the appellants’ contention implicitly contains the
assertion that the dates on which the replies were tendered
terminated the reply period. There is no basis either in rea-
son or in law for this proposition. Absent a showing that
the appellants were compelled to reply sooner than seven
days from their receipt of the notices, it would appear that
the replies were entered voluntarily by the appellants as
scheduled by them individually or through their represent-
atives. Moreover, the record shows that, with respect to the
forty appellants identified in the statement of facts and is-
sues, the notices of decision to remove were not issued un-
til more than seven days had elapsed from the time the no-
tices of proposed removal were received. Accordingly, on
consideration of the record, I find that the dates on which
the oral replies were made were scheduled with the appe!-
lants’ consent where they were held in less than seven days
from the receipt of the notice of proposed removal and did
not limit the seven day time in which the replies could have
been scheduled. I find, therefore, that the appellants have
failed to show that the agency denied them the full seven
"Some of the appellants replied on the seventh day after they had
received their notice of proposed removal. I find that this is in compli-
ance with the statutory requirement. FED. R. CIV. P. 6 provides, for
example, that in computing any period of time prescribed or allowed
by those rules or by any applicable statute the day of the act or event
from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included un-
less it is a Saturday, Sunday, or a legal holiday.
G30
days mandated by statute in which to reply to the notices
of proposed removal. Assuming, arguendo, that appellants
had been permitted less than the full seven day period to
reply, and therefore, error had been shown, reversal in this
case would not be required since the appellants failed to
present any evidence to establish that the alleged error had
been harmful.
Appellants next alleged that the specification in the no-
tice of proposed removal concerning the charge of unautho-
rized absence was vague in that it did not specify the exact
number of days each appellant was allegedly absent without
leave. I find this allegation to be unsupported by the evi-
dence of record. Although it is true that the notices of pro-
posed removal did not specify exactly how many days ap-
pellants had been absent, the notices did inform each ap-
pellant as to when his alleged absence without leave had
begun. Accordingly, I find that the notices were sufficiently
specific to place the appellants on notice that they were be-
ing charged with absence without leave and on which dates
the charges began. Furthermore, none of the appellants
presented any evidence to show how the alleged vagueness
of this charge had harmed them.
Although not entirely clear, it appears that appellants may
also have alleged that the agency had committed error, with
respect to the removal action, by illegally suspending them
during the notice period. Assuming arguendo that appel-
lanis had been illegally suspended, there has been no show-
ing as to how this error had any impact upon the decision
to remove them. Therefore, I find that appellants have failed
to show harmful error in this matter.
Appellants next contended that the penalty of removal
was too severe in light of the factors set forth in the Board’s
decision in Douglas v. Veterans Administration, MSPB
Docket No. AT075299006 (April 10, 1981), and that the
penalty of removal should be mitigated because of the
G31
‘‘eross disparity’’ in the treatment of striking controllers
who returned by their deadlines and who were not removed
and those who did not return and who were removed.
In Schapansky, supra, the Board noted that 5 U.S.C. §1
7311 ‘‘can be read to require removal as the mandatory
penalty for individual federal employees against whom
charges of striking are sustained.’’ The Board declined to
decide whether, as a matter of law, mitigation of the penalty
pursuant to Douglas, supra, is foreclosed. Rather, citing
the case of Borsari v. Federal Aviation Administration,
MSPB Docket No. NY075209163 at 5-7 (June 24, 1982),
the Board held that even upon application of Douglas,
supra, the penalty of removal could not be deemed clearly
excessive or disproportionate to the offense of striking.
Moreover, I find no disparity of treatment because all of
the striking controllers were permitted the opportunity to
return to work provided they did so before the expiration
of their respective deadlines. As the Board specifically noted
in Schapansky, supra, it was an appellant’s decision to con-
tinue striking despite the President’s grace period which con-
stituted the particularly egregious conduct in these cases such
as to destroy the controller’s unique relationship of trust
with his employer. Accordingly, appellants’ argument not-
withstanding, mitigation of the penalty is not warranted on
this basis. Furthermore, since the factors considered by the
Board in Schapansky, supra, obtain in this case, | find that
the penaity of removal assessed against each appellant in
this appeal is reasonable.
Appellants also alleged that their removals did not pro-
mote the efficiency of the service. In Schapansky, supra,
the Board held that the removal of a federal employee for
participation in a strike against his employer promotes the
efficiency of the service. The Board stated that there was
a clear and direct relationship between that type of miscon-
G32
duct and both the employee’s ability to accomplish his duties
satisfactorily and the agency’s ability to fulfill its missison.
Accordingly, I find that the removals of the appeliants pro-
mote the efficiency of the service.
Decision
The decisions to remove the appellants are hereby af-
firmed.
This decision is an initial decision and will become a fi-
nal decision of the Merit Systems Protection Board on
February 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 the proceeding, the Director of the Office
of Personnel Management, and the Special Counsel may
file a petition for review of this decision with the Merit Sys-
tems Protection Board. The petition for reveiw must set
forth objections to the initial decision, supported by refer-
ences to applicable laws or regulations, and with specific
reference to the record.
The petition tor review must be filed with the Secretary
of 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 par-
ties, the Board may grant a petition for review when it is
established that:
(a)New and material evidence is available that, despite
due diligence, was not available when the record was
closed; or,
(b) The decision of the presiding official is based upon
an erroneous interpretation of statute or regulation.
G33
Pursuant to 5 U.S.C. §7703(b)(a)" the appellant has
the right to seek judicial review of the Board’s final deci-
sion on this appeal. A petition requesting such review must
be filed with the United States Court of Appeals for the
Federal Circuit no later than 30 days after appellant’s receipt
of the Board’s final Order or decision.
FOR THE BOARD:
MARK KELLEHER
Presiding Official
"As modified by Section 127 of the Federal Courts Improvement
Act of 1982, to be codified at 28 U.S.C. §1295(a)(9).
APPENDIX A
APPELLANT
Ahrend, William
Aiuvalasit, George S.
Alex, Steven
Arends, Michael
Artis, Ronald L.
Augst, Owen
Baird, William B.
Baker, Vernon
Baquet, Allen
Barnes, Peter
Bassett, Roxanne M.
Belcher, James N.
Bennett, Janet
Blackwell, Michael K.
Blain, Robert L.
Block, Richard W.
Bonnett, Bobby
Boykin, Tony S.
Braden, Allen J.
Braden, Susan
Brooks, William
Burns, David R.
Burson, Jimmy
Carroll, Michael
Cartwright, Carl
Cartwright, Paul
Causey, Charles
Champion, Nicholas
Chester, Alan L.
Chochos, John
Clark, Donald
G34
DOCKET NO.
DA075281F 1455
DA075281F 1487
DA075281F 1329
DA075281F 1583
DA075281F 1403
DA075281F 1585
DA075281F 1488
DA075281F 1604
DA075281F 1422
DA075281F1374
DA075281F 1456
DA075281F 1404
DA075281F1394
DA075281F 1347
DA075281F1538
DA075281F0892*
DA075281F1423
DA075281F 1489
DA075281F 1565
DA075281F 1375
DA075281F1458
DA075281F0890
DA075281F 1605
DA075281F1352
DA075281F 1395
DA075281F1376
DA075281F 1407
DA075281F 1396
DA075281F 1469
DA075281F 1587
DA075281F1425
Clark, Robert C.
Colligan, Keith
Cook, Dennis L.
Coon, Frederick I.
Cornelius, Henry
Cowan, Robert
Dailey, Donald F.
Davis, Steve
Dempsey, Jack
Dennis, Richard J.
DesVignes, Harold
Dodd, Terry L.
Donahue, Richard
Dorman, Jeffrey
Dowda, William
Dudley, William
Dunn, Stephen
Dupaty, Edward
Easton, Robert
Eitel, Darryl
Elliott, Frederick
Ellis, Patrick
Fisbeck, Charles E.
Fitzpatrick, Thomas E.
Flanary, Sammy
Fontes, Alfred
Fuller, Robert W.
Furlong, Tomas
Gaddie, George
Garcia, Eduardo
Garcia, Manuel
Garcia, Sandra K.
Garza, Ricardo
Garza, Sandra
George, Gary D.
G35
DA075281F1588
DA075281F1589
DA075281F 1490
DA075281F 1582
DA075281F 1426
DA075281F1427
DA075281F 1368
DA0O75281F1590
DA075281F1322
DA075281F1492
DA075281F1430
DA075281F1470
DA075281F 1606
DA075281F1378
DA075281F1591
DA075281F1323
DA075281F1540
DA075281F1408
DA075281F1382
DA075281F1431
DA075281F 1432
DA075281F1433
DA075281F 1393
DA075281F1560
DA075281F 1434
DA075281F1379
DA075281F1542
DA075281F1370
DA075281F 1460
DA075281F1461
DA075281F1435
DA075281F1493
DA075281F1592
DA075281F1593
DA075281F1367
Godbold. Iohn W.
Gonzalez. ‘ 2andro
Goodwin, Joel B.
Gowler, Edward G.
Grover, Jacque
Gstohl, Ronald
Gunn, Kenneth L.
Gutshall, Loretta A.
Guzman, Alex
Halcomb, Larry D.
Haley, Frank M.
Hall, Gerald B.
Halli, Leslie F.
Hamous, Bruce A.
Hanke, Richard M.
Harding, Michael R.
Harmon, Edwin L.
Harris, John R.
Harvey, William B.
Hay, Alan J.
Hayes, Julian
Hellmann, Ronald
Henderson, Rex
Herbst, Frederick
Hesse, Joseph M.
Hilburn, Charles
Hill, Gary
Hill, Robert
Hillard, Terry L.
Hodlund, Jerry Don
Holloway, Wayne M.
Holmes, Stuart
Holstad, Gerald B.
Holton, James
Hoover, Richard
G36
DA075281F 1494
DA075281F 1436
DA075281F 1495
DA075281F 1348
DA075281F 1594
DA075281F 1437
DA075281F 1496
DA075281F 1497
DA075281F 1366
DA075281F 1383
DA075281F 1499
DA075281F 1567
DA075281F 1568
DA075281F 1569
DA075281F 1500
DA075281F1501
DA075281F 1543
DA075281F1502
DA075281F 1578
DA075281F1410
DA075281F1438
DA075281F1330
DA075281F 1439
DA075281F1441
DA075281F1230
DA075281F1442
DA075281F1331
DA075281F 1462
DA075281F 1349
DA075281F 1412
DA075281F1570
DA075281i1F1443
DA075281F1504
DA075281F 1463
DA075281F1328
Hornsby, Samuel L.
Howard, Michael
Humphries, Thomas
Hunter, Dennis L.
Huntley, David
Hymel, Louis
Imfeld, Randy
Inn, Kenneth K.
Irizarry, Raymond
Jackson, James H.
James, Albert L.
Jenkins, Thomas
Johnson, Jerrlean
Johnson, Joe C.
Johnston, George W.
Jones, Benton
Juarez, Frank
Judkins, Dalias
Kerby, James A.
Kiersey, Elmo
Kinder, Jerry L.
King, Frederick
King, Robert D.
Kingan, Robert C.
Klinger, Richard F.
Knierim, George M.
Knight, Joseph
Koch, Francis J.
Kramer, Robert D.
Lagle, Philip R.
Lara, Modesto
Lawrence, Dennis A.
Lawson, Thomas E.
Lee, Charles R.
Lee, Ellis
G37
DA075281F1471
DA075281F1380
DA075281F 1371
DA075281F 1360
DA075281F 1464
DA075281F 1444
DA075281F 1353
DA075281F1505
DA075281F 1354
DA075281F1506
DA075281F1413
DA075281F1398
DA075281F 1381
DA075281F1507
DA075281F1508
DA075281F 1446
DA075281F 1327
DA075281F1340
DA075281F 1369
DA075281F 1341
DA075281F1544
DA075281F0886
DA075281F 1365
DA075281F 1473
DA075281F1510
DA075281F1511
DA075281F1595
DA075281F 1561
DA075281Fi512
DA075281F0150
DA075281F 1361
DA075281F1513
DA075281F1514
DA075281F1475
DA075281F1447
Loden, Jean
Long, Ray
Martinez, Robert
Mathews, Barney L.
Mattair, Jimmy
McCollum, David B.
McDonald, James
McGillicuddy, Donald
McGugin, James P.
MclIlwain, Gwen M.
McKinley, Marilynn
Miles, Melvin D.
Miller, Glyn H.
Miller, Russell
Miller, Shirley W.
G38
Mittelstadt, Thomas B.
Mixon, Howard
Mixon, William T. II
Moller, Margaret J.
Montgomery, Ralph
Monypeny, Vavid
Moody, Neil S.
Morris, Harry H.
Morse, Garland D.
Motley, John
Mulinix, Larry N.
Nakunz, William G.
Neil, John
Nesbitt, James
Nichols, David
Noble, Roy E.
Norris, Wayne
Novick, Carolyn
Owen, Mark
Paucker, Harry R.
DA075281F 1448
DAO75281F 1515
DA075281F 1467
DA075281F 1546
DAO075281F 1355
DA075281F 1547
DA075281F 1596
DA075281F1516
DA075281F 1517
DA075281F1548
DA075281F1449
DA075281F1477
DA075281F1478
DA075281F1416
DA075281F1519
DA075281F1562
DA075281F 1450
DA075281F1350
DA075281F1417
DA075281F 1332
DA075281Fi572
DA075281F0891
DA075281F1521
DA075281F1522
DA075281F 1597
DA075281F1357
DA075281F1419
DA075281F 1338
DA075281F 1372
DA075281F 1342
DA075281F1524
DA075281F 1400
DA07528iF 1607
DA075281F 1363
DA075281F1526
Petty, Billy D.
Phillips, Wayne C.
Polansky, Thomas E.
Poore, Donald
Postlewate, Morris A.
Primm, Onnan
Pruett, Billy
Quintrall, Mickey
Ragsdale, John R.
Ramirez, Ventura
Ramsey, Alan
Ray, Joseph H.
Realme, Raul
G39
Richardson, Michael L.
Robinson, Donald A.
Rogers, Kyle C.
Roy, John C.
Sakso, Joseph
Salamon, Linda
Schimelpfening, Bobby
Schooler, Tom W.
Schrader, Ken A.
Schwab, Jay W.
Seirer, Richard K.
Sekaly, Bruce C.
Selby, David M.
Shafer, Richard L.
Shane, Thomas
Simmons, James
Sims, Danny
Skarpa, Felix J.
Skinner, Donald P.
Smith, Robert E.
Smith, Terry
Spradlin, Robert F. Jr.
DA075281F1549
DA075281F 1527
DA075281F 1573
DA075281F 1608
DA075281F1420
DA075281F 1373
DA075281F1401
DA075281F 1598
DA075281F 1563
DA075281F1451
DA075281F 1452
DA075281F1550
DA075281F0893
DA075281F 1564
DA075281F1479
DA075281F 1528
DA075281F1579
DA075281F0895
DA075281F0889
DA075281F 1609
DA075281Fi574
DA075281F 1529
DA075281F 1480
DA075281F1551
DA075281F 1386
DA075281F 1481
DA075281F 1530
DA075281F0894
DA075281F 1333
DA075281F 1600
DA075281F1482
DA075281F1358
DA075281F1391
DA075281F 1584
DA075281F0025
G40
Stevens, Robert
Stewart, David
Stout, Edward R.
Swarts, Eric
Taylor, Robert
Templet, Clyde P.
Terry, Michael D.
Tessimond, Arthur J.
Thomsen, William E.
Titterington-Mercer, D.M.
Turnbow, Wesley
Ward, John L.
Watson, Jack T.
Watson, Richard
Weese, John G.
Welch, Lewis W. Jr.
Wennerstrom, Victor A.
Werchan, John
West, Floyd R.
Whealton, Robert G.
White, Larry
Wiley, Bill J.
Williams, Steven A.
Williamson, Billy E.
Wilson, Dennis
Wilson, Lawrence K.
Wolfe, Melvin
Young, Harold
Zablocki, Michael J.
Zajac, David
DA075281F 1343
DA075281F 1339
DA075281F0887
DA075281F1453
DA075281F1336
DA075281F1533
DA075281F1387
DA075281F 1483
DA075281F1575
DA075281F 1484
DA075281F 1610
DA075281F 1388
DA075281F 1362
DA07528iF1601
DA075281F 1534
DA075281F0026
DA075281F1351
DA075281F1335
DA075281F 1389
DA075281F1359
DA075281F1602
DA075281F 1556
DA075281F1557
DA075281F 1535
DA075281F 1603
DA075281F1558
DA075281F 1356
DA075281F 1537
DA075281F1485
DA075281F1611
HI
Appendix H—Alex et al. v. F.A.A. ___. 17 MSPR 479
(1983) MSPB Board Decision on Appeal From Block,
supra, Appendix G.
STEPHEN P. ALEX, ef ai.,'
Appellants
v.
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIA-
TION, ADMINISTRATION, Agency
DA075281F1329
s
Merit Systems Protection Board.
Oct. 3, 1983
As Amended Nov. 9, 1983
‘Appellants covered by this order are listed in Appendix A at-
tached hereto. Appellants’ cases were consolidated at the regional
level with the cases of other appellants, Block v. Department of
Transportation, MSPB Docket No. DA075281F0892 (Initial Decision,
January 3, 1983), but this order relates only to the appellants listed in
Appendix A.
Appendix B of Appellant’s Supplemental Brief presents factual
arguments pertaining to the appeals of seven appellants, Michael Car-
roll, Thomas Polansky, Donald Poore, Victor Wennerstrom, James
Simmons, Jerry Hoglund, and Buddy Bonnett. These appellants were
neither included in the Petition For (illegible) filed by appellants’
counsel nor Appendix A of Appellants’ Supplemental Brief. Thus,
these seven appellants have not timely petitioned for Board (illegible)
of the initial decision and the Board will not consider the subsequent
allegations made in their behalf.
an nen
H2
Air traffic controllers were removed based on charges of
participation in a strike against the federal government
and unauthorized absence. On appeal, the presiding of-
ficial sustained the removals and controllers petitioned for
review. The Merit Systems Protection Board held that: (1)
there was no harmful error in presiding official’s deter-
mination that Board lacked jurisdiction to hear construc-
tive suspension issue, since no suspensions in fact oc-
curred, and (2) telephone call from agency official in
which he instructed controller’s wife that controller should
return to duty and should call him back was insufficient to
cancel controller’s previously scheduled annual leave, and
thus agency failed to establish a prima facie case of either
strike participation or AWOL with regard to controller.
Petition granted; initial decision affirmed in part and
reversed in part.
1. Merit Protection 81, 471
There was no harmful error in presiding official’s
determination that Board lacked jurisdiction to hear issue
of whether air traffic controllers were constructively
suspended during their removal notice periods, since
evidence did not establish that any suspensions in fact oc-
curred.
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