# Petition for Writ of Certiorari — Des Vignes v. Department of Transportation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2280%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 479 U.S. 853 ## Text : 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 Al Bi Cl 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: pow BS errr rere ey ts 7 3 S CH SIDE Ne 6 wc ccc cece tecscass: 9 § U.S.C.: 5 i rene hy rss rr eere a ret 7 oe) rr errr rr errr re 19 Us | eee errr ne ors ee 3 OTSR RITA «oo nie doc ected ees ste eees 21 i | ry rs eres eres 21 DOPROEE «i's 04s bi dhe desde eeae eee es 4 ols \rrnrnrrrrr iro ry ts 5 2 errr sree ers Mrs rye. 5 Le: TTT OL TE ere ee 3 lk, errr cre rere eat 11 |: errr rrr rrr rr Corer 3 28 U.S.C.: ib. ) errr rer yo hey 3 DADO «x a0 0 nc dens oi wan eh eee Ranson 3 Vil. Page % aa a dark Fk Coates Ca wee Oe 18 RE atte Co GN ie hs eter aes 18 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 : | 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 » n a P45 % — - . ¥ 9 ‘eh . s Se er . ed i ‘ b a ey : a a y -_ — a ee ene —* Al 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 el [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2280%3A1. Public record. Not legal advice.