Opposition Brief — Richards v. Department of Transportation

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No. 86-311 ~

In the Supreme Court of the Gni

OCTOBER TERM, 1986

WILLIAM L. RICHARDS, PETITIONER

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

DAVID M. COHEN

SANDRA P. SPOONER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether substantial evidence supports the Merit

Systems Protection Board’s determination that petitioner

was properly removed from federal employment on the

grounds that he participated in a strike against the United

States and was absent from his duty post without leave.

2. Whether the Federal Aviation Administration is

estopped from removing petitioner from federal employ-

ment.

3. Whether removal from federal employment is an

appropriate penalty for petitioner’s participation in an

unlawful strike against the United States.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Anderson v. Department of Transportation, FAA, 735

F.2d 537, cert. denied, 469 U.S. 1018 ................ 5

Campbell v. Department of Transportation, cert. denied,

eee 2, 5, 6, 8

Heckler v. Community Health Services of Crawford

i EE coc kasceassecscescsseses oe

Johnson v. Department of Transportation, FAA, 13

ee Eee ee

Lyng v. Payne, No. 84-1948 (June 17, 1986) ............ 7

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

504, cert. denied, 469 U.S. 1018 ...... cc ccc ce eee 5

Russell v. Department of Transportation, FAA, cett.

denied, No. 85-1229 (June 2, 1986) ................. 7

Schapansky v. Department of Transportation, FAA, 735

F.2d 477, cert. denied, 469 U.S. 1018 ................ ey

(111)

In the Supreme Court of the Gnited States

OCTOBER TERM, 1986

No. 86-311

WILLIAM L. RICHARDS, PETITIONER

Vv.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A6-A8)

is reported at 795 F.2d 1016 (Table). The opinion of the

Merit Systems Protection Board (Pet. App. A9-A25) is

reported at 17 M.S.P.R. 160.

JURISDICTION

The judgment of the court of appeals was entered on

May 27, 1986. The petition for a writ of certiorari was

filed on August 25, 1986. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioner, a former air traffic controller, challenges his

removal from federal employment following the air traffic

controllers’ strike in 1981. The background of the strike

and subsequent litigation are set forth in our brief in

(1)

opposition in Campbell v. Department of Transportation,

cert. denied, 469 U.S. 881 (1984), one of a number of

other cases arising out of the strike.

1. The Federal Aviation Administration (FAA)

removed petitioner from his position as an air traffic con-

troller on the grounds that he participated in a strike

against the United States and was absent without leave

during the strike. The Merit Systems Protection Board

upheld petitioner’s removal (Pet. App. A9-A25). The

Board first concluded that a prima facie case against peti-

tioner had been established by evidence demonstrating

that petitioner was absent without leave during a strike of

general knowledge (id. at A9-A10).? Petitioner attempted

to rebut this showing by introducing evidence that his par-

ticipation in the strike was involuntary because it was the

result of coercion (id. at Al2-A14).

The Board rejected petitioner’s claim that he had been

coerced into participating in the strike by the “pressure

and verbal abuse from other union members” that he

allegedly incurred as a result of his previous open opposi-

tion to the strike (Pet. App. A12). It stated petitioner “did

not claim that threats of physical violence had been

directed to him or that he feared crossing the picket line.

' A copy of our brief in Campbeil has been sent to counsel for peti-

tioner.

2 The Federal Circuit has held that the FAA at all times bears the

burden of establishing strike participation; it must show by a

preponderance of the evidence that the employee withheld his services

in concert with others. Schapansky v. Department of Transportation,

FAA, 735 F.2d 477, 482 (Fed. Cir.), cert. denied, 469 U.S. 1018

- (1984). Once the agency makes a prima facie showing of strike par-

ticipation by presenting evidence of the employee’s unauthorized

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

forward with evidence to rebut that showing necessarily shifts to the

employee, who is in the best position to present explanatory evidence

to counter that showing” (ibid.).

The non-physical abuse he suffered as a result of his ac-

tions opposing the strike did not constitute the kind of

duress” necessary to rebut a showing of strike participa-

tion (id. at Al3).3 The Board also declined to adopt peti-

tioner’s argument that his conduct was coerced because he

believed that his wife’s poor health would be aggravated if

he was subjected to the harassment and violence that he

thought would accompany an attempt to cross the picket

line (id. at Al3-A14). The Board noted that there was no

violence on the picket line and that the situation was

monitored by the police. Moreover, petitioner did not ad-

vise his employer of his concern about his wife and at-

tempt to obtain approval for his absence (id. at Al4).

3 The Board noted (Pet. App. A13) that the legal standard to be ap-

plied in assessing a claim of coerced strike participation was set forth

in its decision in Johnson v. Department of Transportation, FAA, 13

M.S.P.R. 652 (1982), aff'd, 735 F.2d 510 (Fed. Cir. 1984). The MSPB

adopted —and the court of appeals approved—a “reasonable man”

standard for establishing involuntary participation in a strike. The

Board stated that

in order for a Federal employee charged with participation in a

strike against the Government to establish a defense of coercion

or duress, he must demonstrate, by a preponderance of the

evidence, that his failure to report for work was the result of a

threat or other intimidating conduct, directed toward him, suffi-

cient to instill in him a reasonable fear of physical danger to

himself or others, which a person of ordinary firmness would not

be expected to resist.

13 M.S.P.R. at 660 (footnotes omitted; emphasis added). Under this

standard, “menacing tones or language, fear of ‘financial ruin’ or

jeopardy to career advancement, exuberant moral suasion, or any vex-

ation, annoyance or pressure resulting in a state of mental perturba-

tion, reluctance to act, or a choice of inherently unpleasant situations”

do not standing alone render involuntary an individual’s participation

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

Petitioner also asserted that the FAA is estopped from

removing him from federal employment. He claimed that

he offered to resign in June 1981 and did not do so because

of comments made by his supervisor that, in petitioner’s

view, amounted to a commitment to rehire petitioner in

the event he was removed for strike participation (Pet.

App. A15-A18). The Board concluded that, assuming

petitioner relied upon the supervisor’s statements, any

such reliance was not reasonable. It found that the super-

visor encouraged petitioner to report for work in the event

of a strike and indicated that petitioner was free to resign

and that he Would assist in the processing of petitioner’s

resignation if petitioner chose to resign (id. at A19-A20).

The Board further concluded that even if petitioner’s

reliance could be deemed reasonable in June 1981, when

the conversations with his supervisor took place, con-

tinued reliance upon the supervisor’s comments had

become unreasonable by the time of the August 3, 1981

strike. As the deadline for the strike approached, no fur-

ther discussions took place between petitioner and his

supervisor, even though petitioner claimed that he con-

stantly thought about resigning (id. at A20). The Board

observed that the supervisor had been advised in the in-

terim that there would be no amnesty for strikers. It stated

that petitioner “should have been particularly careful to

seek and act on current information because he had know-

ingly decided to engage in illegal conduct” (id. at A22).

Since petitioner’s “continued reliance on a stale conversa-

tion was misplaced when he could and should have ob-

tained current information,” petitioner “failed to prove a

case for estopping his removal” (id. at A22, A23).

Finally, petitioner argued that his removal did not pro-

mote the efficiency of the FAA because he had been a

good employee. The Board rejected this contention, ob-

serving that the statutory prohibition against strikes by

federal employees “reflects the belief of Congress that

discharging a federal employee for participation in a strike

against his employer promotes the efficiency of the service

because such misconduct affects both the employee’s abili-

ty to accomplish his duties satisfactorily and the agency’s

ability to fulfill its mission” (Pet. App. A23-A24).

2. The court of appeals affirmed the Board’s decision

(Pet. App. A6-A8).* It observed that “[t]he full [MSPB]

considered petitioner’s case at length * * * and that discus-

sion is adequate to sustain the Board’s affirmance of the

sanction of removal against him” (id. at A7). With respect

to petitioner’s claim that his participation in the strike was

coerced, the court of appeals found that the peer pressure

cited by petitioner was no greater than the pressures upon

air traffic controllers in two previous cases in which the

court had rejected the coercion defense. Jd. at A8, citing

Johnson v. Department of Transportation, FAA, supra,

and Martel v. Department of Transportation, FAA, 735

F.2d 504 (Fed. Cir.), cert. denied, 469 U.S. 1018 (1984).

The court also concluded that the Board correctly held

that “there was no estoppel of the Government arising

from [petitioner’s] conversations with [his supervisor]”

(Pet. App. A7).

+ Petitioner’s petition for review in the court of appeals was among

approximately 3,500 such petitions filed by discharged air traffic con-

trollers. All but nine cases were stayed pending the court’s decisions in

those cases. On May 18, 1984, a five-judge panel of the court of ap-

peals issued decisions sustaining the removals of all but one of the

petitioners in the lead cases. A number of the unsuccessful petitioners

filed petitions for writs of certiorari; all of those petitions were denied

by this Court. Schapansky v. Department of Transportation, FAA,

735 F.2d 477 (Fed. Cir.), cert. denied, 469 U.S. 1018 (1984); Anderson

v. Department of Transportation, FAA, 735 F.2d 537 (Fed. Cir.),

cert. denied, 469 U.S. 1018 (1984); Campbell v. Department of

Transportation, FAA, 735 F.2d 497 (Fed. Cir.), cert. denied, 469 U.S.

881 (1984). The court of appeals then lifted the stay and began to con-

sider the other pending petitions for review.

ARGUMENT

Petitioner’s basic claim is that the MSPB and the court

of appeals erred in concluding that he participated in the

illegal strike. The decision of the court of appeals with

respect to this fact-bound issue is correct and does not

conflict with any decision of this Court or another court of

appeals. Further review by this Court is not warranted.

1. Petitioner raises several challenges to the Board’s

factual finding that he actively participated in the strike.

He first contends (Pet. 11-19) that the FAA did not carry

its burden of establishing that he participated in the strike.

As we discussed in our brief in opposition (at 6-8 & nn.

5-6) in Campbell v. Department of Transportation, cert.

denied, 469 U.S. 881 (1984), direct proof of participation

is not required where the employee has not rebutted the

agency’s prima facie case of strike participation. Here, the

FAA established its prima facie case by showing that peti-

tioner was away from his duty post without authorization

during a strike of general knowledge. Accord Schapansky

v. Department of Transportation, FAA, 735 F.2d 477, 482

(Fed. Cir.), cert. denied, 469 U.S. 1018 (1984). Petitioner’s

claim therefore must fail unless he rebutted the agency’s

showing of strike participation.

Petitioner argues (Pet. 18-21) that his showing of coer-

cion was sufficient to rebut the FAA’s prima facie case.

The Board (Pet. App. A1l2-A14) and the court of appeals

(id. at A7-A8) correctly concluded, however, that peti-

tioner did not establish that his conduct was coerced

because he did not demonstrate “a threat or other in-

timidating conduct, directed toward [petitioner], suffi-

cient to instill in him a reasonable fear of physical danger

to himself or others, which a person of ordinary firmness

would not be expected to resist” (Johnson v. Department

of Transportation, FAA, 735 F.2d 510, 513 (Fed. Cir.

1984)).5 In the absence of a showing of a direct threat of

physical harm or any evidence that petitioner or his wife

was in any danger, the Board and the court of appeals

properly concluded that petitioner’s fear was not sufficient

to excuse his strike participation.

2. Petitioner’s attempt to revive his estoppel defense

(Pet. 22-25) is nothing more than an effort to relitigate the

question whether his alleged reliance upon his supervisor’s

statements was reasonable. The resolution of that fact-

bound question is not an issue appropriate for review by

this Court.

As a threshold matter, of course, it is not clear that an

estoppel ever may be asserted against the government. But

“the private party surely cannot prevail without at least

demonstrating that the traditional elements of an estoppel

are present.” Heckler v. Community Health Services of

Crawford County, Inc., 467 U.S. 51, 61 (1984); see also

Lyng v. Payne, No. 84-1948 (June 17, 1986), slip op. 9.

Petitioner does not dispute that the party asserting an

estoppel must reasonably rely upon the other party’s con-

duct (Pet. 24). The Board (Pet. App. A19-A20,

A22-A23)—and the court of appeals (Pet. App. A7)—cor-

rectly concluded that petitioner’s reliance was unreason-

able. ,

3. Finally, petitioner contends (Pet. 25-29) that the

penalty of removal is not justified when an employee par-

ticipates in an unlawful strike against the United States.

5 Petitioner appears to contend (Pet. 19-20) that the reasonableness

of his belief is not relevant in determining whether his participation in

the strike was coerced. But the court of appeals specifically rejected

that position in Johnson, concluding that strike participation is in-

voluntary only if the fear that led to the participation was objectively

reasonable (735 F.2d at 513-515). We discuss the reasons justifying

this standard in our brief in opposition (at 10-12) in Russell v. Depart-

ment of Transportation, FAA, cert. denied, No. 85-1229 (June 2,

1986). We have supplied a copy of that brief to petitioner’s counsel.

We addressed that issue in our brief in opposition (at

10-12) in Campbell and this Court denied the petition in

that case; our analysis in Campbell also applies to peti-

tioner’s arguments here. -

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.