Petition for Writ of Certiorari — Richards v. Department of Transportation
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/ | Supreme Court, U.S
' » ee
86-311 ji Firep
jj! AUG 25 1986
JOSEPH F. SPANIOL, JR,
; CLERK
No. a
In The
Supreme Court of the United States
October Term, 1986
WILLIAM L. RICHARDS
Petitioner,
Ve
DEPARTMENT OF TRANSPORTATION, FAA
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
Edward B. Miller
POPE, BALLARD, SHEPARD &
FOWLE, LTD.
69 West Washington Street
Chicago, IL 60602
(312) 630-4223
Counsel for Petitioner
QUESTIONS PRESENTED FOR REVIEW
l. Whether the FAA violated statu-
tory Merit Systems principles of federal
employment by discharging Petitioner, an
air traffic controller, for not reporting
for work during the first few days of the
PATCO strike when the undisputed evidence
shows that:
(a) Petitioner openly and courage-
ously opposed the strike at all
relevant times, and never sup-
ported it or intended to make
common cause with the strikers;
and
(b) Petitioner's absence was ex-
plained by the fact that his
wife knew he had been harassed
and threatened by militant PATCO
Supporters, and, therefore, he
reasonably feared that crossing
Y -
» 41 «
the picket line would have so
increased the tensions on his
wife (who was already under
severe tension caused by a fam-
ily crisis) as to cause a recur-
rence of a stroke and jeopardize
her life.
Whether the FAA violated statu-
tory Merit System principles as well as
the principles of estoppel in pais by
refusing to reinstate Petitioner after
the PATCO strike even though:
(a)
The FAA O'Hare Field Facilities
Chief had dissuaded Petitioner
from resigning prior to_ the
strike by assuring him that he
(the Chief) would have discre-
tion after the strike to rein-
state some controllers who did
not cross the PATCO picket line
and that he (the Chief) would
exercise that discretion in
Petitioner's favor; and
= 443 =
(b) Other controllers who did resign
shortly before the strike were
promptly, upon their request,
reinstated after the strike.
3. Whether the Merit Systems Pro-
tection Board seriously misinterpreted
Merit Systems principles by holding that
the failure of an air traffic controller
to report for work during the initial
days of a strike establishes a conclusive
presumption that his removal will promote
the efficiency of the service and by
summarily rejecting as "irrelevant" the
testimony of Petitioner's managers and
Supervisors that his return to service
would, in fact, promote the efficiency of
the service.
LIST OF ALL PARTIES TO THE PROCEEDING
IN THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
The parties appearing in the caption
of this case were the only parties to the
proceedings in the Federal Circuit.
- iy -
TABLE OF CONTENTS
Page
Questions Presented for
Sn ae ee a i
List of all Parties to the
Proceeding in the United
States Court of Appeals for
Che POGOral CIFGuibscscccessecs iii
Opinions Below.......... oeecee 1
SUP ABGACCEGR s Sewesecascesceess 1
Statutes Involved......c.ceeeees 1
Statement of the Case......... 2
Reasons for Granting the
og ee eee ee ll
A. The Decision Below Con-
flicts with Decisions
of Other Courts of
Appeals Regarding the
Appropriate Test for
When an Employee Can Be
Found to Have Partici-
pated in a Strike....... 11
B. Significant Issues of
Federal Law Are Presen-
ted by the Failure of
the Federal Circuit
Properly to Apply the
Merit Systems Principles
of 5 U.S.C. §2301 and
the Related Doctrine of
Estoppel in Pais........ 22
ce eee ee ee ee eee 29
Appendix:
Statutes: 5 U.S.C. §2301(b)
5 U.S.C. §2302(b)
FT LT, se peers A-2-3
5 U.S.C. $7513
COddca eet ebeceens A-3
5 U.S.C. §7701
vr. A-3-4
5 U.S.C. §7701
(c)(1)(A)(B).... A-4
5 U.S.C. §7703
CSPCAI CEI F) «00 A-4-5
Decision of the United
States Court of Appeals
for the Federal Circuit..... A-6
Opinion and Order of the
United States of America
Merit Systems Protection
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Cases
Douglas v. Veterans Administra-
tion, 5 MSPB 313,330,332...
Johnson v. Department of
Transportation, FAA, 735 F.2d
510 (Fed.Cir. fs re
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Martel v. Department of
Transportation, FAA,\ 735 F.2d
SOG cs 66s 605 64 0 OS DOD o ey BD Oe OeR°
NLRB v. Southern Greyhound
Lines, 426 F.2d 1299,1301
(5th Ce? BETO? © 66SbCO eee COCO ee
NLRB v. Union Carbide Corpora-
tion, 440 F.2d 54,46 (4th Cir.
BT OP 6 60 8000600060506 066002868
Plain Dealer Publishing Co.
v. Cleveland Typo Un. No. 53,
520 F.2d 1220,1228 (6th Cir.
LOTS) ever coscseccccsecoecesseses
Raily v. Ohio, 360 U.S. 423
of errr TT TTT Te Ter Te rTrTer
Schapansky v. Department of
Transportation, 735 F.2d 477
(Fed.Cir. BG? bese es eeee ees
TRW, Inc. v. FTC, 647 F.2d
PEs Pee SO bees Ses cece ecrsecorves
United Federation of Postal
Clerks v. Blount, 325 F.Supp.
879,884, aff'd. 404 U.S. 802
CATE) 6060 60600 6) 6646-66686 606% 0
Page
28
15,16,19,
25
15,16
11,16
12,16
12,17
24
15,17,18
24
12
- vii -
Page
Statutes
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S BWeBeSe BSSOL( DO) (2) caicccosvec 1,23
5 U.8.C. §$2301(5)(8) (A). ccccecs 1,23
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> U.S.C. $7701(a)(C) (1). cccee 1,28
OPINIONS BELOW
The opinion of the Court of Appeals
for the Federal Circuit and the opinion
of the Merit Systems Protection Board
both are set forth in full in the Appen-
dix hereto.
JURISDICTION
The judgment of the Court of Appeals
for the Federal Circuit was entered on
May 27, 1986. This Petition for Certior-
ari was filed within 90 days of the entry
of judgment. Jurisdiction is conferred
on this Court by 28 U.S.C. §1254(1).
STATUTES INVOLVED
The statutes involved are 5 U.S.C.
§2301(b) (2) and (b)(8) (A); 5S §.8.€.
§2302(b)(10) and (b){11). Also involved
are 5 U.S.C. §7513(a) and §7701(a) and
(ce) (i). The text of the relevant
portions of these statutes is set out in
the Appendix hereto.
STATEMENT OF THE CASE
Petitioner William Richards was one
of the Air Traffic Controllers who was
discharged in 1981, allegedly because of
his participation in the PATCO strike
(Tr.199,200) 2” He had been a Controller
for 21 years, had an excellent record,
and had received many awards (Tr.827-
829) .2/ His Facilities Chief testified
that he was at least as able and
effective a Controller as any who were at
work at O'Hare Field in Chicago after the
strike (Tr.209).
l/ "A. " refers to the page number of
the Appendix hereto.
2/ "Tr." refers to the page number of
the transcript of the hearing before
the Hearing Officer of the Merit
Systems Protection Board, which is
part of the record in this case.
Petitioner Richards was one of the
very few Controllers at O'Hare who had
consistently and openly opposed the PATCO
strike. He never favored a strike, never
voted to strike, and actively attempted
to prevent the strike by, for example,
himself preparing a favorable summary of
— FAA's last bargaining offer and pre-
senting it at a union meeting (Tr.837-
846,843,858-859).
Militant PATCO members refused, in
ways which threatened air traffic safety,
to cooperate with Petitioner Richards at
work, and made threatening remarks in his
presence about what would happen to per-
sons who did not support a PATCO strike,
including a statement that "there would
be some heads busted" (Tr.834,836,
841,842,844,850).
Petitioner Richards' wife was a vic-
tim of an earlier stroke which nearly
took her life (Tr.864,865), and had, less
than two months before the strike, at.a
time when Richards was being subjected to
threats and harassment, again exhibited
symptoms of the kind which had preceded
her earlier stroke (Tr.864.866). At the
time of the strike, she was under medical
orders to avoid psychological tension
(Tr.862,863). As of August 3, the date
on which the strike began, his wife was
already under significant tension because
both of the Richards' children were
missing from home, their whereabouts were
unknown, and on the night the _ strike
began, their son had been involved in an
automobile accident which demolished
their automobile (Tr.863,868).
Petitioner's undisputed testimony was
that he did not report for work during
the initial days of the strike because of
his deep concern that if he did so, under
all the circumstances at that time, he
would be placing his wife's health in
serious jeopardy (Tr.868).
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The FAA Facilities Chief at O'Hare
Field did not deny knowledge of the above
facts nor did he question the accuracy of
Petitioner Richards' testimony regarding
them (Tr.206).
Several weeks before the strike be-
gan, Petitioner Richards had attempted to
resign, because he feared the consequen-
ces of crossing the picket line, but he
did not want to break the law (Tr.845).
Richards testified that Facilities Chief
Anderson, learning of his intent to
resign, dissuaded him from resigning,
stating that "probably some people would
be fired" in the event of a strike and
"if I (Richards) was fired that he would
have no problem rehiring me, that he
thought Facilities Chiefs at each
facility would be given a great deal of
discretion in who they wanted back to
work" (Tr.846,847). Anderson himself
testified:
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- 6°:
I did tell him that I felt the
Chiefs would have a lot of dis-
cretion on who were going to be
rehired if a strike occurred;
that if a strike did not occur
and he did resign, then he, in
effect, would be without a job
and that the other people would
still be on board (Tr.885,886).
Richards had been employed at the
time of a "“sickout" in a prior year,
which had been engaged in by 17 or 18 FAA
employees. Two of the employees had been
discharged as a result. Both were re-
hired after the sickout (Tr.847).
The FAA stipulated that other FAA
Controllers who did resign, even after
the strike in issue here had begun, were
reemployed after the strike. (Appellant
Richards Exh.2, received at Tr.879). The
agency also stipulated that if Richards
had actually resigned, he would have been
given serious reconsideration by the FAA
for reinstatement. (Appellant Richards
Exh.3, Tr,788-790).
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No supervisor, manager, or agent of
the FAA testified that Mr. Richards'
removal did or could promote the effi-
ciency of the service. When asked whe-
ther if Richards were restored to duty he
would have any concerns about the well-
being of the agency, Operations Officer
Baldwin testified that he would welcome
Petitioner Richards' return to work, and
when asked if his return would have any
adverse effect either on Richards' own
performance or on the performance of
other Controllers, he stated "It would be
just the opposite" (Tr.878,879).
Facilities Chief Anderson admitted that
if Richards were restored to work, he
would expect him to continue to be both
dependable and reliable (Tr.209).
The Merit Systems Protection Board
found that Richards "did not want to
cross the picket line," that the threats
of physical violence were only overheard
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and “had not been directed to him," and
that the “non-physical abuse" which Rich-
ards had encountered did not
"“constitute...duress" (A.12,13). As to
Richards' concern about his wife's
health, the Board concluded that Richards
should have "known that the likelihood of
the violence was small or non-existent"
(A.14). The Court of Appeals,‘ with
respect to Richards' concern about his
wife's condition, stated only:
--.the Board could permissibly
hold that, in the emergency
crisis of a nation-wide control-
lers' strike, that was not good
cause for failing to come to
work (A.8).
With respect to the assurances given
by the Facilities Chief, the Merit Sys-
tems Protection Board opinion stated:
At the time of the anticipated
June 22 strike, the Tower Chief
and appellant might have specu-
lated that the outcome of the
strike would be consistent with
past resolutions of work actions
(A.21).
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The Board nevertheless went on to
hold that Appellant's continued reliance
on his Facilities Chief's assurances at
the time of the August 3 strike was "un-
reasonable." The reasons given by the
Board were that on Saturday, August 1,
the Tower Chiefs were advised by the
Federal Government that there would be no
amnesty and that employees participating
in a strike "would take the full conse-
quences of their violation of federal law
and their oath not to strike" (A.21).
The Board did not find that Facilities
Chief Anderson had ever communicated that
information to Petitioner Richards, nor
that he had ever withdrawn or modified
his assurances.
The Court of Appeals affirmed, with-
out analysis, both the Board's holding
that Appellant's reliance on "selected
remarks" of Anderson was unreasonable and
that his continued reliance on August 3
was also unreasonable (A.7).
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The Merit Systems Protection Board
held that the discharge of a federal
employee who does not report for work
during a strike promotes the efficiency
of the service. It held that no factual
findings were necessary to support that
conclusion and that the testimony of top
O'Hare officials that the restoration of
Petitioner to service would not adversely
affect his own performance or that of
others and that his return to work would
promote the efficiency of the service is
"not relevant on the issue of the effi-
ciency of the service" (A.25). The Court
of Appeals opinion is silent on this
issue, thus apparently affirming, without
comment, the MSPB's holding.
The Court of Appeals for the Federal
Circuit denied the Richards' petition for
review, holding that the decision of the
Merit Systems Protection Board was:
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...not arbitrary, capricious, an
abuse of discretion, or other-
wise not in accordance with law,
was not obtained without proce-
dures required by law, rule, or
regulation having been followed,
and was supported by substantial
evidence (A.8).
REASONS FOR GRANTING THE WRIT
A. The Decision Below
Conflicts with Deci-
sions of Other Courts
of Appeals Regarding
the Appropriate Test
for When an Employee
Can Be Found to Have
Participated ina
Strike
Cases arising under the National
Labor Relations Act have made clear that
under federal law only:
-»-when an employee as a matter
of principle refuses to cross a
picket line at his own
employer's place of business,
the employee...has in effect
plighted his troth with the
Strikers, joined in their common
cause, and has thus become...a
striker himself.
NLRB v. Southern Greyhound Lines, 426
F.2d 1299,1301 (Sth Cir. 1970).
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In NLRB v. Union Carbide Corporation,
440 F.2d 54,56 (4th Cir. 1971), however,
when there was no factual basis’ for
finding that an employee's refusal to
cross a picket line was "based on
principle," the court said:
He makes no common cause, and
contributes nothing to mutual
aid or protection in the collec-
tive bargaining process.
And in Plain Dealer Publishing Co. v.
Cleveland Typo Un. No.53, $20 .F.2¢6
1220,1228 (6th Cir. 1975), the court held
that one whose refusal to cross a picket
line is not based on principle "may not
be considered a striker." See also
United Federation of Postal Clerks v.
Blount, 325 F.Supp. 879,884, aff'd. 404
US. 802 (1971).
Here, Petitioner Richards’ strongly
and openly opposed the strike, and was
subject to abuse and dangerous’ non-
cooperation by militant PATCO supporters
because of his opposition to the
strike. Richards never supported or
joined in the strike or picketing.
The MSPB, after noting the evidence
of Richards' open and consistent opposi-
tion to the strike, nevertheless ruled:
The crucial evidence, however,
is that Appellant did not want
to cross the picket line. H.T.
at 845,846 (A.12).
The cursory opinion of the Federal
Circuit did not address this issue.
Instead, the Court merely affirmed the
rationale of the Merit Systems Protection
Board, stating that that Board's "discus-
sion is adequate to sustain the Board's
affirmance of the sanction of removal
against him."
At the pages of the hearing tran-
script relied upon by the MSPB, the only
relevant testimony which could possibly
have been referred to by the Board was
one statement by Richards, made to
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Facilities Chief Anderson, that “there
was no way that I could cross the picket
line." But that statement was clearly
not a statement of principle or of
sympathy with the strikers. Instead, it
reflected the harassment and dangerous
non-cooperation from PATCO strike
Supporters which Richards had experienced
on the job, and the threatening remarks
made in his presence, such as that if
controllers crossed the PATCO picket line
"there would be some heads_ busted"
(Tr.842). Richards' did not cross the
line, not because he supported the
Strike, but because he feared for his
wife's life. She knew of these threats
and harassment, and was under medical
orders to avoid psychological tension
lest she suffer another stroke, and at
the outset of the strike she was already
under severe tension because of a family
Crisis--the unexplained disappearance of
the two Richards children.
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While some of this material may more
properly be regarded as rebuttal
testimony, we mention it here only to
show the one statement to Anderson can
hardly be regarded as evidence of
sympathy with the strike or as a decision
by Richards to support the strike or to
make common cause with the strikers.
The Merit Systems Protection Board,
in finding strike participation by Rich-
ards, purported to rely on Schapansky v.
Department of Transportation, 735 F.2d
477 (Fed.Cir. 1984); Martel v. Department
of Transportation, FAA, 735 F.2d 504; and
Johnson v. Department of Transportation,
FAA, 735 F.2d 510 (Fed.Cir. 1984).
But in each of those cases there was
affirmative evidence of participation.
In Johnson (at 514), the employee was
among the picketers, and had carried a
Strike sign. In Schapansky (at 483), the
employee was among the picketers,
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conceded that his absence was to protest
the same conditions being protested by
PATCO, and had voted in favor of the
PATCO strike. And in Martel (at 507),
Martel had walked off the job at the
start of the strike on March 3 and joined
the picket line after August 19.
There was no such evidence anywhere
of picketing or other strike support by
Richards in this record. Instead, all of
the undisputed evidence here is’ that
Richards not only did not support the
strike, but was strongly opposed to it.
There was no such evidence in Johnson,
Schapansky, or Martel.
By affirming, without discussion, the
decision of the Merit Systems Protection
Board, the Federal Circuit has put its
imprimatur on a decision which is
directly contrary to the- principles
established by the Fourth, Fifth, and
Sixth Circuits in Union Carbide, Southern
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- 17 -
Greyhound, and Plain Dealer Publishing
Co., supra. The decision of the Federal
Circuit flouts the holding of those cases
that there must be evidence that an
employee’ voluntarily has made common
cause with strikers in order for him to
be found to be a participant ina strike.
In the aforementioned "lead cases"
regarding the 1981 PATCO strike, the
Federal Circuit discussed at some length
the issue of burden of proof. In Scha-
pansky v. Department of Transportation,
FAA, 735 F.2d 477 (1984), the Court held
that an employee's unexplained absence
during an illegal strike is enough to
establish a prima facie case of partici-
pation, but that establishing such a
prima facie case shifts to the employer
only the burden of going forward. Id. at
482. The Court went on to say (at 482):
The burden of proving the charge
by preponderance of the evidence
is and remains throughout upon
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the agency. The order of pre-
sentation, however, is allocated
in such a way that each party is
required to give evidence in the
area in which it has the better
access to information. It may
be that little countering evi-
dence would be required, where,
for example, the prima facie
case waS minimally supported.
(Id. at 482.)
Here, proof of participation was surely
only “minimally supported," if at all.
The only evidence offered to prove
participation was Richards' absence.
But that absence was not "“unex-
plained." The undisputed testimony
established: (1) threats and harassment
against Richards; (2) Richards feared
that his crossing a picket line, since
his wife knew of those threats, would
increase the existing tensions to which
his wife had been subjected by family
crises and thus threatened her life; and
(3) Richards' Facilities Chief had as-
sured him that even if he were discharged
for failing to cross a picket line, the
~ 19 «
Facilities Chief would exercise the dis-
cretion customarily vested in him to
reinstate Richards after the strike.
In Johnson v. Department of Transpor-
tation, FAA, 735 F.2d 510, cited by the
Federal Circuit in support of its deci-
sion herein, the Court said:
If an employee refuses to work
because of perceived threats or
danger, it could be said that
the element of acting in concert
with others is missing, and that
this is so, whether or not the
employee's fears were those a
reasonable person would have had
in the circumstances. In other
words, as showing that an em-
ployee believed himself threat-
ened, even if that belief was
unreasonable, negates an essen-
tial element of the offense of
striking against the government.
In Johnson, of course, although there was
evidence of such a fear, the MSPB and the
Court found that there was substantial
direct evidence of Johnson's participa-
tion in addition to that established by
his mere absence. He had, for example,
joined the picket line without’ any
- 20 -
explanation for his participation in the
picketing other than the obvious infer-
ence that picketing showed his support
for the strike. There is no such evi-
dence here.
Thus the Federal Circuit has seri-
ously departed from the rationale of the
decisions rendered by the Fourth, Fifth,
and Sixth Circuits by affirming a holding
that participation in a strike can be
shown by mere absence during a strike
even in the face of affirmative evidence
that the employee did not support the
strike and in the face of unrefuted,
rational explanations of reasons for his
absence which were adequate to refute any
inference of participation based on mere
absence.
The Federal Circuit has also
inexplicably avandoned its own earlier
analysis of burdens of proof, and in so
doing has now created a conflict which
needs to be resolved by this Court. If
there is to be some distinction between
proof oof participation required to
establish participation in private sector
strikes as opposed to public’ sector
strikes, then this Court should, we urge,
explicate the purpose and proper
application of such a distinction. But
if, as we believe, there is no basis for
such a distinction, then this Court
should reverse, and resolve the conflict
by clarifying what the burden of proof of
strike participation is and should be.
The conflict between the Federal
Circuit and the other circuits’ has
implications with respect not only to
strikes by public employees but also
seriously destabilizes existing precedent
on a significant and recurring core issue
of federal private sector labor law. The
need for resolution is compelling.
B. Significant Issues of
Federal Law Are Presented
by the Failure of the
Federal Circuit Properly
to Apply the Merit Systems
Principles of 5 U.S.C. §2301
and the Related Doctrine of
Estoppel in Pais
Petitioner's Facilities Chief, in
order to dissuade Richards from resigning
prior to the strike, had assured Richards
that if he were discharged because he did
not cross the PATCO picket line, the
Facilities Chief expected to have sub-
stantial discretion in reinstating
employees who might be discharged for
such a failure, and had also assured
Richards that he would exercise such
discretion in Richards' favor. We argued
below that Richards could reasonably rely
on these assurances, since past history,
including instances of which Petitioner
Richards had direct knowledge, had shown
that Facilities Chiefs were given such
discretion in work stoppage situations.
We also urged that these assurances
should be regarded as having estopped the
agency from discharging Richards at the
time of the strike in August, since the
Facilities Chief had never advised
Richards that such assurances could no
longer be counted on.
These equitable principles of estop-
pel have independent validity here, but
also should be taken into account in
interpreting and applying the statutory
merit systems principles which require,
inter alia, that employees be "protected
against arbitrary action" (3 @.&.€.
§2301{b](8][A]) and that all employees
"should receive fair and equitable
treatment in all aspects of personnel
management" (5 U.S.C. §2301{b]({2]). The
law (5 U.S.C. §2032{b]{11]) prohibits
discharge or other adverse actions
~ 24 -
against federal personnel if any such
action violates the said merit systems
principles.
The principles of equitable estoppel
and its application against the
government have been set forth in such
cases as TRW, Inc. v. FTC, 647 F.2d 942,
950-951 (Sth Cit. 1981). Those
principles are that estoppel applies when
(1) the party to be estopped knows the
facts, (2) the party intends that his
conduct shall be acted on, and (3) the
party asserting estoppel has reasonably
relied on the other's conduct to his
substantial injury. We respectfully
submit that the undisputed evidence here
shows conclusively that all of these
tests were met and that estoppel should
have been found.
This Court, in Raily v. Ohio, 360
U.S. 423 (1959), held that where
government officials actively mislead,
- 25 -
the st ‘ements, even if legally
erroneous, are "the voice of the State
most presently speaking to the appellants
[the persons misled]." Id. at 439. See
also Johnson v. United States, 318 U.S.
189,197. The assurances given by
Richards' Facilities Chief were clearly
"the voice of the State most presently
speaking" to Richards.
The failure of the Federal Circuit to
interpret statutory merit systems in the
light of the estoppel in pais precedent
recognized in other circuits and by this
court itself poses a significant issue of
federal law worthy of review by this
Court.
The Federal Circuit's affirmation of
the Merit Systems Protection Board ruling
in this case also raises a _ second
Significant issue of federal employment
law. For the Circuit affirmed, sub
Silentio, the highly questionable ruling
- 26 -
of the MSPB that the removal of any
federal employee who fails to cross a
picket line during an unlawful strike
must be conclusively presumed to promote
the efficiency of the service under 5
U.S.C. §7513. Under that Section, the
removal of a federal employee can be sus-
tained only it if does promote the effi-
ciency of the service. Under 5 U.S.C.
§2302(b)(10), merit systems principles
also require a showing that removal is
required because an employee's continu-
ance in the federal employ would "ad-
versely affect the performance of the
employee or...the performance of others."
In the instant case, the highest
officials at the FAA at Petitioner
Richards’ place of employment--Chicago's
O'Hare Field--testified affirmatively,
and without contradiction by any other
FAA managers or supervisors, that Rich-
ards' return to service not only would
not have any adverse effect on his
performance or the performance of others
but that:
It would be just the opposite
(Tr.878).
and that:
-..We would welcome the oppor-
tunity to have Bill...back at
O'Hare (Tr.878).
and that Richards, if restored to ser-
vice, would continue to be both depend-
able and reliable (Tr.209-210).
The Merit Systems Protection Board
found that all such testimony was “not
relevant now on the issue of the effi-
ciency of the service" (A.25). The Court
of Appeals' opinion affirms the MSPB's
ruling on this issue without comment or
analysis. The only possible explanation
of this extraordinary ruling must be that
the MSPB and the Court regard an
employee's failure to cross the picket
line in and of itself established an
irrebuttable presumption, or a ruling of
law, that removing him "“promote(s) the
efficiency of the service” and that his
continuance at work would “adversely
affect [his] performance" or "the
performance of others." Nothing in the
law can justify such a holding. The MSPB
itself has held that the "preponderance
of the evidence" test of 5 U.S.C.
§7701(c) applies to the relationship of
an employee's conduct and the efficiency
of the service, both as it relates to
whether “any disciplinary action--is
warranted and whether the particular
sanction may be sustained. . Douglas v.
Veterans Administration, 5 MSPB 313,330
(1981). Relevant factors as to which
proof must be made were listed by the
MSPB as including "The effect of the
offense upon...supervisors' confidence in
the employee's ability to perform
assigned duties." (Id. at 332.)
The Federal Circuit has now.
sanctioned a serious departure from the
MSPB's own, Clearly proper,
interpretation of the law--that
efficiency of the service" and whether
the employee's conduct adversely affects
his own performance or that of others is
a factual, not a legal issue, and one on
which supervisors' undisputed testimony
cannot be brushed aside as
"irrelevant." We respectfully submit
that this is a seriously erroneous and
unfair interpretation of important
Federal law, and borders on a denial of
due process. We respectfully submit that
this significant issue, too, cries out
for the granting of certiorari in this
case.
CONCLUSION
Due to the conflict in principle
between the Federal Circuit and several
- 30 -
other circuits on important federal is-.
sues, and due to the importance of the
Federal Circuit's erroneous interpreta-
tion of significant provisions of federal
law governing the employment of public
employees, we respectfully request that a
writ of certiorari be granted to review
the judgment and opinion of the Federal
Circuit.
Respectfully submitted,
Edward B. Miller
Attorney for Petitioner
William L. Richards
OF COUNSEL:
Pope, Ballard, Shepard
& Fowle, Ltd.
69 West Washington Street
Suite 3200
Chicago, IL 60602
(312) 630-4223
APPENDIX
STATUTES
§2301. Merit system principles
(b) Federal personnel management should
be implemented consistent with the fol-
lowing merit system principles:
* * *
(2) All employees and applicants for
employment should receive fair and
equitable treatment in all aspects of
personnel management without regard
to political affiliation, race,
color, religion, national origin,
sex, martital status, age, or handi-
capping condition, and with proper
regard for their privacy and consti-
tutional rights.
* * *
(8) Employees should be--
(A) protected against arbitrary
action, personal favoritism, or
er OE Se oT te?)
coercion for partisan political
purposes...
* * *
392302. Prohibited personnel practices
(b) Any employee who has authority to
take, direct others to take, recommend,
Or approve any personnel action, shall
not, with respect to such authority--
* * *
(10) discriminate for or against any
employee or applicant for employment
on the basis of conduct which does
not adversely affect the performance
of the employee or applicant or the
performance of others; except that
nothing in this paragraph shall pro-
hibit an agency from taking into
account in determining suitability or
fitness any conviction of the em-
ployee or applicant for any crime
under the laws of any State, of the
District of Columbia, or of the Uni-
ted States; or
-
(11) take or fail to take any other.
personnel aétion if the taking of or
failure to take such action violates
any law, rule, or regulation imple-
menting, or directly concerning, the
merit system principles contained in
section 2301 of this title.
§7513. Cause and procedure
(a) Under regulations prescribed by
the Office of Personnel Management, an
agency may take an action covered by this
subchapter against an employee only for
such cause as will promote the efficiency
of the service.
§7701. Appellate procedures
(a) An employee, or applicant for
employment, may submit an appeal to the
Merit Systems Protection Board from any
action which is appealable to the Board
under any law, rule, or regulation. An
appellant shall have the right--
(1) to a hearing for which a
transcript will be kept; and
(2) to be represented by an
attorney or other representa-
tive.
Appeals shall be processed in accordance
with regulations prescribed by the Board.
* * *
(c)(1) Subject to paragraph (2) of
this subsection, the decision of the
agency shall be sustained under subsec-
tion (b) only if the agency's decision--
(A) in the case of an action based
on unacceptable performance described
in section 4303 of this title, is
Supported by substantial evidence, or
(B) in any other case, is supported
by a preponderance of the evidence.
* * *k
§7703. Judicial review of decisions of
the Merit Systems Protection
Board
EEE ee
(c) In any case filed in the United
States Court of Claims or a United States
court of appwei.ls, the court shall review
the record and hold unlawful and set
aside any agency action, findings, or
conclusions found to be--
(1) arbitrary, capricious, an abuse
of discretion, or otherwise not in
accordance with law;
(2) obtained without procedures
required by law, rule, or regulation
having been followed; or
(3) unsupported by substantial evi-
dence;
except that in the case of discrimination
brought under any section referred to in
subsection (b)(2) of this section, the
employee or applicant shall have the
right to have the facts subject to trial
de novo by the reviewing court.
DECISION OF THE UNITED STATES
COURT OF APPEALS FOR THE
FEDERAL CIRCUIT
[Caption deleted]
Before RICH, DAVIS, and SMITH, Cir-
cuit Judges.
PER CURIAM.
DECISION
The decision of the Merit Systems
Protection Board, affirming the peti-
tioner's removal by the Federal Aviation
Administration, Department of Transpor-
tation, is affirmed.
OPINION
Notwithstanding the request of coun-
sel for oral argument, we have determined
on the basis of the request and the
briefs that oral argument will not be
necessary because the dispositive issue
or set of issues has been authoritatively
decided, the facts and legal argument are
adequately presented in the briefs and
record, and the decisional process would
not be aided by oral argument. Fed. R.
App. P. 34(a).
The full Board considered peti-
tioner's case at length (along with that
of other controllers) and that discussion
is adequate to sustain the Board's af-
firmance of the sanction of removal
against him. As the Board held, there
was no estoppel of the Government arising
from the conversations with the tower
chief. We cannot overturn the adminis-
trative findings that (a) Richards’
“reliance on selected remarks [of the
chief] taken out of context were unrea-
sonable” and (2) in any event, Richards'
continued reliance (on that June conver-
Sation) during the August 3rd strike was
unreasonable. With respect to peti-
tioner's family situation (his wife's
illness and emotional status), the Board
could permissibly hold that, in the
emergency crisis of a nation-wide
controllers' strike, that was not good
cause for failing to come to work. As
for the asserted coercion from the union
and strikers, the peer pressure here was
not greater than in Johnson v. Department
of Transportation, FAA, 735 F.2d 510
(Fed. Cir. 1984) and Martel v. Department
of Transportation, FAA, 735 F.2d 504
(Fed. Cir.), cert. denied, 105 S. Ct. 432
(1984).
The decision appealed from was not
arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance
with law, was not obtained without proce-
dures required by law, rule, or regula-
tion having been followed, and was sup-
ported by substantial evidence. 5 U.S.C.
§7703(c) (1982); see Hayes v. Department
of the Navy, 727 F.2d 1535, 1537 (Fed.
Cir. 1984).
OPINION AND ORDER OF THE
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
[Caption deleted]
OPINION AND ORDER
In a single initial decision issued
on January 31, 1983, after a consolidated
hearing, the removals of appellants from
their positions as air traffic control-
lers at the O'Hare Air Traffic Control
Center, Chicago, Illinois, were sustained
on charges of striking in violation of 5
U.S.C. §7311 and absence without leave
(AWOL).
Applying Schapansky v. Department of
Transportation, MSPB Docket No. DA075281-
F1130 (Oct. 28, 1981), appeal filed, No.
82-132 (Fed. Cir. Jan. 14, 1983), the
presiding official found that the agency
had made a prima facie case of strike
participation by proving as to each
A-10
appellant his unauthorized absence during
the strike period.
Each appellant then had the opportun-
ity to rebut the prima facie case by
showing that his absence was due to fac-
tors other than voluntary participation
in the strike. Unpersuaded by the rebut-
tal evidence presented by each appellant,
and finding the affirmative defense of
equitable estoppel raised by appellants
Metzker and Richards unproved, the pre-
Siding official determined that removal
was for the efficiency of the service and
was a reasonable penalty for striking.
In reaching this conclusion, the presid-
ing official relied on Schapansky, supra,
at 9-12.
The appellants have filed separate
petitions for review; the agency has
responded to each petition. The peti-
tions for review are GRANTED except for
the challenges of the presiding
A-1l
official's conclusion con the prima facie
case against each appellant. The
petitions raising that issue do not
persuade us either that the Schapansky
decision was incorrectly applied or that‘
any findings in the Schapansky decision
2/
were erroneous.
\
We shali consider the petitions of
the appellants in the following order:
Andre Letourneau, James J. Vecchitto,
John E. Misner, Dennis J. LeBeau, Ronny
H. Metzker, and William L. Richards. The
2/ See Noa Vv. Department of
Transportation, MSPB Docket No.
NY075281F0697 at 5 (Apr. 25, 1983),
appeal filed, No. 83-1152 (Fed. Cir.
June 27, 1983); Anderson Vv.
Department of MTranpsortation, MSPB
Docket SL0O75281F0347 at 3 (Apr. 25,
1983), appeal filed, No. 83-1152
(Fed. Cir. June 27, 1983); Campbell
v. Department of Transportation, MSPB
Docket No. DEO75281F0674 at 4 (Apr.
25, 1983), appeal filed, No. 83-1173
(Fed. Cir. June 27, 1983). Any
alleged errors in the Board's
Schpansky decision will be resolved
on judicial review.
A-12
challenge of the finding on the effi-
ciency of the service, raised in the
petitions of appellants LeBeau, Metzker,
and Richards and based on similar evi-
dence and common arguments, shall be
considered by subject matter.
(Opinions relating to Andre H.
Letourneau, James J. Vecchitto,
John E. Misner, Dennis J. LeBeau,
and Ronny H. Metzker, deleted.)
In his petition for review, appellant
Richards challenges the failure of the
presiding official to find that he had
rebutted the showing of the prima facie
case of striking by evidence that he
openly opposed the strike; consistently
voted against the strike, even on secret
ballots; promoted ratification of the
offered contract; and as a result suf-
fered pressure and verbal abuse from
other union members. The crucial evi-
dence, however, is that appellant did not
want to cross the picket line. Bats Of
A-13
845, 846. By not reporting to work in
order not to cross the picket line,
appellant therefore supported the strike
in progress.
Appellant did not claim that threats
of physical violence had been directed to
him or that he feared crossing the picket
line. The non-physical abuse he suffered
as a result of his actions opposing the
strike did not constitute the kind of
duress cognizable under our decision in
Johnson, supra.
Appellant also reargues his rebuttal
that he did not report for duty because
of concern for his wife's health.~’ He
again argues that family problems had put
her under a strain and that serious acts
of harassment and attempted violence
16/ Appellant's wife had suffered a
stroke some years previously and was
under medical restrictions, one of
which was to avoid psychological or
mental tension.
4
EEE—E
A-14
against him would add to her stress. The
facilities chief testified that there was
no violence on the picket line and there
was a police presence at the facility.
H.T. at 174. Had appellant checked, he
would have known that the likelihood of
violence was small or non-existent and
that he was in no danger. Moreover,
appellant gives no explanation as to why
he did not contact the faclity prior to
his scheduled shifts on August 4 and 5
and his deadline shift on August 6 to
explain and seek authorization for his
absence because of his wife's health.
The presiding official correctly
found that appellant Richards failed to
rebut the prima facie case of striking
made against him.
Appellant Richards also challenges
the presiding official's conclusion that
A-15
he failed to prove the government should
be estopped from removing him.’
Appellant claims that he was prepared to
resign but that statements made by the
tower chief induced him not to resign.
Had he resigned, he would not have been
striking and would not have been fired;
or if fired, would have been eligible for
rehiring after the strike. |
Appellant testified essentially as
follows: A strike was anticipated on
June 22. Appellant did not want to cross
the picket line and have to work with
striking controllers later but he also
did not want to break the law by strik-
ing. So he the [sic] decided the only
thing he could do was resign. When the
17/ The grounds for her conclusion,were
the same as those for rejection of
appellant Metzker's argument for
estoppel discussed above. We did not
adopt those reasons as the basis for
our identical conclusion.
A~10
tower chief heard appellant had filled
out resignation forms. the chief talked
to him. Appellant explained his
dilemma. The chief said he understood
but wished appellant would come to work;
but if he did not cross the picket line,
it was best to stay with the union
because the chief did not know how long
it would be before appellant would be
rehired. Appellant further testified
that the chief told him that after the
Strike, if appellant should be fired, the
chief would have no problem rehiring him
because the chiefs at each facility would
be given a great deal of discretion as to
whom they wanted back. H.T. at 845-847.
The chief testified in substance that
om June 19 he did have a conversation
with appellant Richards concerning his
decision to resign. The chief testified
that he told appellant to think about it;
that appellant should not strike but
A-17
should come to work; that if appellant
resigned, he would be without a job and
other controllers would still be on
board; and that it would appear that
appellant resigned rather than take a
stand. The chief explained to appellant
at that time that he understood appel-
lant's position on the strike and the
contract, and told Richards that he owed
the union membership nothing. H.T. 855,
886. The chief also testified that he
told appellant he felt the facilities'
[sic] chiefs would have a lot of discre-
A-18
tion on who was going to be rehired if a
18/
strike occurred. H.T. at 885.
The presiding official made no credi-
bility findings between the testimony of
19/
appellant Richards and the chief. The
chief did not deny any of appellant's
testimony. We see no conflict, and
accept the testimony of both.
18/ Appellant does not dispute’ the
summary of testimony in the initial
decision, but alleges it is
incomplete. We have reviewed what we
take to be additional record evidence
the appellant would have us
consider. Most of what appellant
would add is duplicative of or does
not change materially the summary in
the initial decision. We have added
to our summary the chief's testimony
that he expected to have discretion
in who would be rehired after a
strike.
19/ The presiding official stated that
~ the chief "allegedly" told appellant
Richards that if appellant were
fired, the chief would have no
problem rehiring him after the strike
because facilities chiefs would have
a great deal of discretion in whom
they wanted back. I.D. at 23. This
testimony was, however, corroborated
in substance by the chief's own
testimony.
A-19
Appellant claims that the chief's
remarks to which appellant testified
created an impression that misled him
into not resigning. These remarks were
not made in isolation. In the same con-
versation, the chief made remarks that,
rather than discouraging the appellant
from resigning, encouraged appellant to
report to work during the anticipated
June strike.
In addition, on June 21 when appel-
lant called the chief at home to ask the
latest time for resigning, the chief
offered to meet appellant so he could
submit his resignation papers by June
22. Appellant does not allege that the
chief attempted to dissuade him from
resigning at that. time; the chief was
willing to meet appellant so the papers
could be submitted on time; and it is
clear that a resignation would have been
accepted. Reviewing the testimony on the
A-20
June conversations, we conclude that in
deciding net to resign at that time,
appellant's reliance on selected remarks
taken out of context was vaeeenensine 2”
Assuming, nevertheless, that reliance
would have been reasonable in June, ap-
pellant's continued reliance to the time
of the August 3 strike was
unreasonable. Based on the June conver-
Sations, appellant made his decision on
June 22 not to resign. H.T. at 869. He
thought constantly about the decision.
H.T. at 870. Yet he did not communicate
further with the chief on the subject.
On Saturday, August l, a strike was
threatened if no settlement was reached
that weekend; and the tower chiefs were
advised that no agreement for amnesty
existed and there would be none. General
Notice (GENOT) 119 (Agency File, Tab
21/ See n. 14 supra.
A-21
5). The same GENOT advised the chiefs
that employees participating in a strike
would take the full consequences of their
violation of federal law and their oath
not to strike.
At the time of the anticipated June
22 strike, the tower chief and appellant
might have speculated that the outcome of
the strike would be consistent with past
resolutions of work actions. See d.T.
848. Immediately prior to the August 3
strike, however, it was made clear to the
chief that the government would take a
firm position against strikers.
Appellant could have ascertained this
development by a call to the chief (much
as he called the chief the day before the
anticipated strike of June 22 to inquire
as to the last day for resigning) and
then could have made a new decision whe-
ther to resign before the impending
August 3 strike. Had appellant called,
A-22
he would have learned that prior specu-
lations as to the resolution of this job
action were not valid.
Appellant alleges he was still
expecting events to unfold so that he
would escape firing despite his
striking. He should have been particu-
larly careful to seek and act on current
information because he had _ knowingly
decided to engage in illegal conduct.
Appellant never called to ascertain
his status prior to striking, when he
could still have chosen to resign, or at
any time prior to his deadline shift on
August 6, when he could still have
returned to work without risking
removal. Therefore, either because
appellant's reliance was misplaced ori-
ginally or because his continued reliance
on a stale conversation was misplaced
when he could and should have obtained
current information, we conclude that he
A-23
has failed to prove a case for estopping
his removal.
EFFICIENCY OF SERVICE
Appellants LeBeau, Metzker, and Rich-
ards argue that their individual removals
do not promote the efficiency of the
service. They charge error in the fail-
ure of the presiding official to make
findings on the testimony of their super-
visors, including the deciding official,
and fellow employees now working at the
O'Hare facility, that appellants' return
would promote the efficiency of the ser-
vice. The failure of the presiding offi-
cial to make findings is immaterial and
thus not harmful error. See Baracco,
Supra, and Parker, supra.
The Board has held that 5 U.S.C.
§7311 reflects the belief of Congress
\
that discharging a Federal employee for
participation in a strike against his
employer promotes the efficiency of the
|
A-24
service because such misconduct affects
both the employee's ability to accomplish
his duties satisfactorily and the
agency's ability to fulfill its mis-
sion. Schapansky, supra; and Anderson,
Supra.
Under the agency guidelines’ for
deciding whether a controller would re-
turn to work, a controller had to show at
least that a legitimate factor prevented
him from reporting for duty during the
strike. Exercise of management judgment
was to be "consistent and fair.“ Specif-
ically, decisions were to be "based on
the record related to the charges, not
personal like or dislike of any individ-
ual." GENOT 141 (Appellants LeBeau,
Metzker, and Richards Exhibit 1).
The testimony of the chief, who was
the deciding official, that he would
welcome appellants back to work now is
not a concession that his decision to
A-25
remove was erroneous. The cited testi-
mony of fellow controllers and supervi-
sors does not relate to the seriousness
of the misconduct, was not relevant at
the time of the agency decision, and is
not relevant now on the issue of effi-
ciency of the service.
The presiding official correctly held
that appellants' removals were for the
efficiency of the service.
CONCLUSION
The initial decision dated January
31, 1983, sustaining the removals of
appellants Dennis J. LeBeau, Andre J.
Letourneau, Ronny H. Metzker, John E.
Misner, William L. Richards, and James J.
Vecchitto is AFFIRMED AS MODIFIED herein.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.