# Opposition Brief — Le Beau v. Department of Transportation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2399%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 479 U.S. 984 ## Text . 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 EE I ee ee eee eee eee l i Cea eh eA hwy ats bv es veenes 64s ves l EER EERE EE ee l TCI et ceeUhG Pe bbie kon dsSoenectedevéseevas 6 ES RE 8 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2399%3A2. Public record. Not legal advice.