Opposition Brief — Le Beau v. Department of Transportation

. Supreme Court, U.S,

2) / RILED

No. 86-330

OCT 311986

JOSEPH F. SPANIOL, JR.

CLERK

Iu the Supreme Court of the United, States

OCTOBER TERM, 1986

DENNIS J. LE BEAU, 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

CHARLES FRIED

Solicitor General

RICHARD K. WILLAR

D

Assistant Attorney General

Davip M. COHEN

SANDRA P. SPOONER

Attorneys

Department of Justice

Washington, D.C.

(202) 633-2217

20530

QUESTION PRESENTED

Whether substantial evidence supports the Merit Sys-

tems 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.

(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,

et ae WEE be sss see Se eee eee 5

Campbell v. Department of Transportation,

FAA, 735 F.2d 497, cert. denied,

ce cain eho As 6.0.49 09 60 '0 6 ye

Ferrando v. Department of Transportation,

hee eRe bese eccessecees 6

Johnson v. Department of Transportation,

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

a 4,5, 6

Martel v. Department of Transportation,

FAA, 735 F.2d 504, cert. denied,

EE et ee eee eee 5-6

Schapansky v. Department of Transportation,

FAA, 735 F.2d 477, cert. denied,

i een kate cs bes hee bu eo 6 ye

(111)

In the Supreme Court of the Hnited States

OCTOBER TERM, 1986

No. 86-330

DENNIS J. LE BEAU, PETITIONER

V.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION

ON PETITION FORA 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. 1a-2a) is

reported at 795 F.2d 1015 (Table). The opinion of the Merit

Systems Protection Board (Pet. App. 2a-6a) is reported at

17 M.S.P.R. 160. The Board’s initial decision (Pet. App.

7a-14a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 25, 1986. The petition for a writ of certiorari was filed

on July 19, 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

(1)

2

the course of the subsequent litigation are set forth in our

brief in opposition in Campbell v. Department of Trans-

portation, 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 controller on

the grounds that he participated in a strike against the

United States and was absent without leave during the

strike. Petitioner sought review of that action before the

Merit Systems Protection Board. Following a hearing, the

presiding official issued an initial decision upholding peti-

tioner’s removal (Pet. App. 7a-14a). The presiding official

first concluded that a prima facie case against petitioner had

been established by evidence demonstrating that petitioner

was absent without leave during a strike of general knowl-

edge (id. at 8a).? Petitioner attempted to rebut this showing

by introducing evidence that his participation in the strike

was involuntary because it was the result of coercion by

strike supporters (id. at 9a-12a).

Petitioner submitted evidence showing that “on three

occasions in 1981, prior to the strike, [his] home and auto-

mobile were vandalized after [union] meetings at which

[petitioner] voiced his opposition to going out on strike”

1A copy of our brief in Campbell has been sent to counsel for

petitioner. y

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

burden of establishing strike participation; it must show by a prepond- i}

erance 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 participation by present-

ing 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.).

eT oe

3

(Pet. App. 9a). Eggs were thrown at petitioner’s home and

obscenities were sprayed on his home and car with shaving

cream. Petitioner testified that he also was subjected to

harassment while he was at work. He stated that “[o]n one

occasion * * * following a PATCO meeting, [he] discov-

ered the handle had been broken off his lunch box and his

lunch box stuffed with garbage” (id. at 10a). In addition,

“militant [union] members gave [petitioner] the cold shoulder

treatment or verbally abused him by calling him a ‘scab’ or

other obscenities. * * * [Union] supporters ensured that

[petitioner] had the least desirable duties and generally

refused to relieve him unless ordered to do so by a supervi-

sor” (ibid.).

The presiding official recounted (Pet. App. 1 1a) petition-

er’s testimony regarding threats by union supporters:

[ w]hile eating his lunch next to some PATCO members

in the facility’s lunchroom in April of 1981, [petitioner]

claims he heard them discussing damaging cars and

painting scabs’ houses. [Petitioner] also heard them

state that “it would be a good idea” to bring in goons to

break some legs to prevent people from crossing picket

lines, and further, that it would be easy to order a truck

load of rocks to dump on a scab’s lawn.

Petitioner also was told that a union “militant” had stated

that he “would personally stop anybody from going to

work,” although there is no evidence that this individual

ever directly threatened petitioner (ibid.). When petitioner

told the union activist that he did not want to go to a union

meeting, the activist responded that if petitioner did not

attend “he ‘would make sure that [petitioner] didn’t go

down the stairs the next day and he would personally put

[petitioner] in the hospital’ ” (ibid.).

The presiding official concluded that petitioner failed to

show that his decision to stay away from his job during the

strike “was based upon a reasonable fear of physical danger

4

to himself or others” (Pet. App. 12a). She found “no direct

threat of physical danger to [petitioner] if he attempted to

report to work during the strike,” noting that the threats of

violence were “general in nature and directed at no one

person in particular” (ibid.).? She also observed that peti-

tioner “never attempted to report for work from August 3

through August 6, 1981, and never made an attempt to call

anyone at the facility until August 7, 1981. He therefore had

no knowledge of the situation at the facility regarding pick-

eters” (ibid.). The evidence showed that “there was no vio-

lence on the picket line” and that petitioner’s fear of cross-

ing the picket line therefore was not reasonable (id. at 13a).‘

The Merit Systems Protection Board affirmed the initial

decision (Pet. App. 4a-6a). It stated that the facts did not

merit a finding of coercion under the relevant standard.®

The Board noted that petitioner’s argument was based upon

evidence of threats made by union members, and-ebserved

that petitioner “does not claim that any threats were

directed at him, and, as noted by the presiding official, had

[petitioner] attempted to discern the atmosphere at the

facility during the strike, he would have found that no one

was physically harmed or prevented from crossing the

picket line” (id. at Sa).

*The presiding official found that the damage to petitioner’s house

and car was “superficial in character, easily remedied, with little signifi-

cant permanent damage” and that “fear of damage to one’s property”

does not justify strike participation (Pet. App. 12a).

‘The presiding official noted that petitioner presented testimony that

one controller “refused to cross the picket line after receiving ‘a lot of

verbal abuse’ and being spit upon,” but concluded that these facts were

“insufficient to establish a reasonable fear of bodily harm” (Pet. App.

13a).

‘The Board noted (Pet. App. 4a) that the legal standard to be applied

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

decision in Johnson vy. Department of Transportation, FAA, 13

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

5

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

(Pet. App. la-2a).® It found that the pressures cited by

petitioner in connection with his coercion defense “presen-

t{ed] no fact pattern which differs significantly from” pre-

vious cases in which the court had rejected the coercion

defense. /d. at 2a, citing Johnson v. Department of Trans-

portation, FAA, 735 F.2d 510 (Fed. Cir. 1984), Martel v.

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

standard for establishing involuntary participation in a strike. The

Board stated that

[iJn 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, sufficient to instill in

him a reasonable fear of physical danger to himself or others,

which a person of ordinarv 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 jeo-

pardy to career advancement, exuberant moral suasion, or any vexa-

tion, annoyance or pressure resulting in a state of mental perturbation,

reluctance to act, or achoice of inherently unpleasant situations” do not

standing alone render involuntary an individual’s participation in a

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

6Petitioner’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 appeals

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

in the lead cases. A number of the unsuccessful petitioners filed peti-

tions 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 Transporta-

tion, 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 consider the other

pending petitions for review.

6

Department of Transportation, FAA, 735 F.2d 504 (Fed.

Cir.), cert. denied, 469 U.S. 1018 (1984), and Ferrando v.

Department of Transportation, FAA, 771 F.2d 489 (Fed.

Cir. 1985).

ARGUMENT

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

appeals erred by 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.

Petitioner challenges (Pet. 7-14) the standard applied by

the Board and the court of appeals in assessing his coercion

defense, asserting that the reasonableness of his fear of

physical danger is not relevant in determining whether his

participation in the strike was coerced. The court of appeals

specifically rejected this argument in Johnson v. Depart-

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

1984), defining coercion as “a threat or other intimidating

conduct, directed toward [an employee], sufficient to instill

in him a reasonable fear of physical danger to himself or

others, which a person of ordinary firmness would not be

expected to resist” (735 F.2d at 513). We discuss the reasons

justifying this standard in our brief in opposition (at 10-12)

in Russell v. Department of Transportation, FAA, cert.

denied, No. 85-1229 (June 2, 1986). (We have supplied a

copy of that brief to petitioner’s counsel.)’

’Petitioner erroneously contends (Pet. 9-10) that Johnson imposes

upon the employee the burden of proving that he did not participate in

the strike. As we discuss in our brief in opposition (at 6-7 & nn.5-6) in

Campbell vy. Department of Transportation, FAA, cert. denied, 469

U.S. 881 (1984), the agency need not adduce direct proof of participa-

tion where the employee has failed to rebut the agency’s prima facie case

of strike participation. Here, the FAA established its prima facie case by

7

Petitioner also challenges (Pet. 12-13) the factual finding

of the Board (Pet. App. 4a-Sa)—sustained by the court of

appeals (id. at 2a)—that he was not coerced into participat-

ing in the strike. The resolution of that fact-bound question

is not an issue appropriate for review by this Court.

The Board observed that no threats of physical violence

were directed at petitioner and that petitioner’s fear was

unreasonable because “no one was physically harmed or

prevented from crossing the picket line” (Pet. App. 5a).

Moreover, petitioner did not contact his supervisor to

explain the reasons for his absence until several days after

the commencement of the strike (id. at 12a). Petitioner’s

unexplained delay weighs against his claim that his absence

from his duty station was solely the result of fear of retalia-

tion.

showing that petitioner was away from his duty post without authoriza-

tion 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 also asserts (Pet. 12-13) that the Johnson standard pre-

cludes consideration of the facts of each particular claim of coercion.

The inquiry under the reasonabieness standard, however, is whether a

person could have a reasonable fear of physical danger in the circum-

stances confronting the employee (see note 5, supra). The standard

therefore provides a full opportunity for consideration of the facts of

each case. .

8

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

Davip M. COHEN

SANDRA P. SPOONER

Attorneys

OCTOBER 1986

DOJ-1986-10