Petition for Writ of Certiorari — Anderson v. United States Department of Transportation
Supreme Court brief1986
Ask Donna
What actually matters in this document.
Text
In the
Supreme Court of the Anited States
Octoser TERM, 1986
DAVID C. ANDERSON, ET AL,
Petitioners,
v.
UNITED STATES DEPARTMENT OF TRANSPOR-
TATION, FEDERAL AVIATION ADMINISTRATION,
Respondents.
On Petition for Writ of Certiorari to the United States
Court of Appeals for the Federal Circuit
PETITION FOR WRIT OF CERTIORARI
Pum S. Woop
Pasky Anp Woop
220 BE. Galena Blvd.
P.O. Box 2729
Aurora, IL 60507
312/844-2560
Gary Ersan Kern
1725 K. Street N.W.
Suite 302
Washington, D.C.
202/296-1120
Attorneys for Petitioners
The Scheffer Press, Inc—(312) 263-6850
i
QUESTIONS PRESENTED FOR REVIEW
1. Whether the Federal Circait’s adoption and imple-
mentation of issue preclusion in these cases so far depart-
ed from the standards for judicial review required by
statute and by the fairness criteria defined in the prior
decisions of this Court as to require the use of this Court’s
supervisory power?
PARTIES TO PROCEEDING
The petitioners included in this consolidated petition
are:
Patrick Lydon, David C. Anderson, Daniel C.
Staffin, Richard S. Andrews, Timothy P.
Clouser, John W. Gorman, Michael C. Lacy,
Jack B. Shaul, Dennis P. Obermski, Donal
O’Grady, Anna Lissak, Richard J. Brandis,
John W. Holic, James F. Burgard, Brenda
Conroy, Richard DeLutri, Jeffrey R. Ellis,
Kenneth Popowitech, Donald Schuemann,
Betty J. Murphy, Peter J. Piorkowski, Darryl
Romashko, and Thomas A. Toepfer.
The respondents are:
United States Department of Transportation,
Federal Aviation Administration.
ii
TABLE OF CONTENTS
PAGE
Cie BONOW vncereesinsnieinnsansaidinasesernensninapianmamaainniiiins 1
ENE © i icsuideseieoneiimmecncomennmaiains 2
DNS: CTI viststrcasesenssicccreei nia ii
MINING cpecccscinspceséniasasensaieanassnviasrceuhatanlanounseebiaieiiaaessian 2
Beemsems For Graeme Ce WI oi cccecescenssveccsksssiswlsiasesnsners 10
I.
The decisions below so far depart from the
requisites for fair adjudication, as defined by
statute, rule and the prior decisions of the Court
as to cal! for an exercise of this Court’s super-
VISOTY POWETS ANd QUICANCE ..........cccssccccsecscsssccsceees 10
A.
The process below was fundamentally defective .... 10
B.
The improper denial of oral argument was preju-
GR aildecietisissansstsiv ini ene 15
C.
The Federal Cireuit’s decisions in the petition-
ers’ cases are impermissibly devoid of adjudicative
PIII .nsivcccessuouesnonpnsiieineitnoncoomaahianionebaniiueinicenaiion 16
Aa RT TN eT a ee es EET RM 17
ili
AUTHORITIES CITED
CasEs: PAGE:
Adams v. Department of Transportation, 735 F. 2d
I i. cls dualssiposancnabanoutitnoensders 5
Blonder-Tongue Laboratories, Inc. v. University of
Illinois Foundation, 402 U.S. 313 (1971) occ. 11
Dennison Mfg. Co. v. Panduit Corp., No. 85-1150 (S.
CE., 1986) ———- TU — nn cecncncccccccscscsossccnccssosconcssosence 17
Erickson v. Department of Transportation, No. 83-688
SS RE MIE oi ccpscessnsenscacoccessnssnncosoosovses 4
Ferrando v. Department of Transportation, No. 83-687
SO EE COON a cccsccecnonncccsodnnesnscsvevesees +
In re Air Traffic Controller Litigation, (Fed. Cir.
February 24, 1983) (CAFC Notice) 0.0... 4
Montana v. United States, 440 U.S. 147 (1979) wo... 11
Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) .... 11
Trick v. Department of Transportation, MSPB No.
8g a EE 6 ee 11
Triola vy. Department of Transportation, 769 F. 2d
I oi cicsccaddscesivadesedeccnsapsssssecasesboneseih 13,14
Zullo v. Department of Transportation, No. 83-689
Se I RUIIED “A EMOROME) .occccsccsccesccoscaccsccossececscecsesaes 4
STATUTES:
oc... ssinscusensasenénsensocnsbnsessiennseess 3,10
I Eo vescecnsecccussinteneesecssonssotecsocves 3
I io aa. sssccnssvceseeivasvvenravessecéessinentes 2,7
iiss cnminnetidisinsdilbavnassnasscoeyeerectoonns 5
mca csansapenusccoeanensbedeeness 7
s,s ahis oninvessinaconsoshentsoeceeesocaosons 2
RM UE OME oo. sas veccacivavsccseansscacccsivetsnecons 2,4
Pub. L. 97-164, Title 1, Section 144 (April 2, 1982)
ais cecnaciocendsbesabaniusnsvenennsssloninics 3
Circuit Russ:
a os ssuisneslenimnvvciohesniononogus’ 2,8,15,16
C.A.F.C. Rule 3 (b) (1984) ............... ie a 7
LecaL WRITINGS:
Currie, Civil Procedure, The Tempest Brews, 53 Calif.
Se EE SE MEIN - pcovscyvinsctevinaneseanonschntejnenroninacteosensnees 12
In THE
SUPREME COURT OF THE UNITED STATES
OctoserR Term, 1986
No.
DAVID C. ANDERSON, ET AL,
Petitioners,
v.
UNITED STATES DEPARTMENT OF TRANSPOR-
TATION, FEDERAL AVIATION ADMINISTRATION,
Respondents.
On Petition for Writ of Certiorari to the United States
Court of Appeals for the Federal Circuit
PETITION FOR WRIT OF CERTIORARI
A Writ of Certiorari is respectfully sought to review
the final judgments of the United States Court of Appeals
for the Federal Cireuit in the eleven cases consolidated in
this petition.’
OPINIONS BELOW
The opinions of the United States Court of Appeals for
the Federal Circuit in all eleven cases are unpublished,
but are reproduced in Appendix A imfra.
* By order of the Chief Justice, the petitioners’ motion
for extension of time to file a consolidated petition to Sep- |
tember 2, 1986, was granted on July 25, 1986. 7
— po
JURISDICTION
The jurisdiction of this Court is invoked pursuant to
28 U.S.C. 1254 (1). The jurisdiction of the Federal Circuit
Court of Appeals was initially invoked pursuant to 28
U.S.C. 1295 (a) (9).
STATUTES AND CIRCUIT RULE INVOLVED
IN THE CASE
5 U.S.C. 7703 (c) provides in pertinent part:
In any case filed in the United States Court of Ap-
peals for the Federal Circuit, the Court shall review
the record and hold unlawful and set aside any agency
action, findings or conclusions found to be—
(1) Arbitrary, capricious, an abuse of discretion
or otherwise not in accordance with law;
(2) obtained without procedures required by law,
rule or regulation having been followed; or
(3) unsupported by substantial evidence.
F.R.A.P. 34 (a) provides in relevant part:
Gral argument shall be allowed in all cases unless
pursuant to local rule a panel of three judges, after
examination of the briefs and record, shall be unani-
mously of the opinion that oral argument is not
needed. Any such local rule shall provide any party
with an opportunity to file a statement setting forth
the reasons why, in his opinion, oral argument should
be heard.
STATEMENT OF THE CASE
INTRODUCTION
Petitioners are all former air traffic controllers who
were terminated in 1981 based upon charges that they
participated in the PATCO strike.
Although each of the petitioners have asserted unique
substantive and procedural defenses through the Merit
eed
Systems Protection Board procedures and in their appeals
to the Federal Circuit, the petitioners are cognizant of
the limited resources of this Court and the logical neces-
sity to limit the Court’s discretionary review to cases in-
volving questions of significant importance.
In deference to this criteria the petitioners do not ask
the Court to review the merits of their individual cases.
Instead, the petitioners limit the issues herein to the
deprivation of basic rights to litigate their cases before
the Federal Circuit, resulting from that Circuit’s adoption
and application of a special but fundamentally flawed
process for deciding the controller litigation. In this vein,
the unique substantive defenses of some of the petitioners
will be stated for the sole purpose of illustrating the
significance of the errors which attached to the proceed-
ings before the Federal Circuit.
1. THE ADOPTION OF ISSUE PRECLUSION—THE
FEDERAL CIRCUIT’S “LEAD CASE” PROCEDURE.
Shortly after the U.S. Court of Appeals for the Fed-
eral Circuit was formed in October, 1982,? it faced a po-
tential influx of appeals in crisis proportions. This situa-
tion resulted from the convergence of two factors: (1) the
record number of pending Merit Systems Protection
Board appeals, due to the air traffic controller litigation,
for which judicial review as of right was guaranteed by
law ;* (2) the amendments to 5 U.S.C. 7703 (b) (1), which
transferred to the Federal Circuit exclusive jurisdiction
* Pub. L. 97-164, Title 1. Section 144 (April 2, 1982) 96
Stat. 45.
°5 U.S.C. 7703 (1982).
—
of MSPB appeals which had previously handled by the
Court of Claims and the Courts of Appeals for all the
circuits.*
The decision to resort to issue preclusion as a means
of resolving the anticipated crisis was apparently made by
a single judge of the Federal Circuit, under unusual cir-
cumstances.
In February, 1982, a judge of the Federal Circuit grant-
ed a motion filed by the Department of Transportation
to suspend all processing of appeals filed by air traffic
controllers, in order to pursue a “lead case” approach by
which that judge expected the Federai Circuit to be able
“to determine most, or perhaps all of the legal issues in
the air traffic controller litigation.’””
Although this order was to have a profound impact on
all of the controller-litigants, the motion was filed and
the decision made in the complete absence of notice of
those who would be affected. The judge’s notice, which 1
announced a “lead case” approach on behalf of the entire
Federal Circuit, was issued in connection with a motion
raised in three cases.° No other controller-appellants, none
of these petitioners were afforded any opportunity to re-
spond to the government’s motion.
At the time the lead case procedure was adopted, most
of the MSPB cases which would make up the eleven lead
*See also, 28 U.S.C. 1295 (a) (9).
5In re Air Traffic Controller Litigation (Fed. Cir., Feb-
ruary 24, 1983) at 2.
* Ferrando v. Department of Transportation, No. 83-687
(Fed. Cir. 1983); Erickson v. Department of Tramnsporta-
tion, No. 83-688 (Fed. Cir. 1983); Zullo v. Department of
Transportation, No. 83-689 (Fed. Cir. 1983).
on Fee
cases had not yet even been selected or decided by the
MSPB itself. Moreover, under applicable law, generally
employees but not Federal agencies have the right to
appeal to the Federal Circuit.’ Hence the judge respon-
sible for adopting the lead case approach must have as-
sumed, two to three months before the MSPB decided
several of these cases, that the agency would win, that
judicial review wonid be sought, that the cases would
present issues common to the other litigants, that the se-
lected cases would be typical and the representation
adequate.
If these assumptions were wrong, these petitioners
were helpless to challenge them. From February, 1983,
to January, 1985, all controller cases, other than those
selected® as the lead cases, were frozen.
After the MSPB decided all! of the lead cases, the Fed-
eral Circuit implemented the prior issue preclusion order
by designating five judges to serve on a panel to decide
the lead cases. Although non-lead case controllers were
permitted to file briefs as amici curiae, they were limited
to the issues formed by those having lead case status and
by the records of these cases.’
"The single exception to the non-appealability of
MSPB cases in which the agency action is reversed is in
regulation-impact cases brought by the Office of Person-
nel Management, 5 U.S.C. 7703 (d).
® No explanation was ever given as to what method the
Court employed in designating a case as a lead case.
*Several of the Federal Circuit’s lead case decisions,
notably Adams v. Department of Transportation, 735 F
2d 488 (Fed. Cir., 1984), summarily rejected arguments
from amici which were based upon record evidence ad-
duced in hearings other than the selected lead cases.
==
In May, 1984, when the five judge panel issued its deci-
sions in the eleven lead cases, all in favor of the agency,
it served notice on the other controller-appellants that
their cases would continue in a suspension status pending
the final disposition by the Supreme Court, or the time
for doing so had lapsed.*® The notice also warned
attorneys representing controllers against maintaining
frivolous appeals.
Some of the lead case appellants subsequently filed
petitions for certiorari, which were denied by this Court.
Final disposition of what were characterized as the con-
troller lead cases was determined in December, 1984.
2. APPLICATION OF ISSUE PRECLUSION —
SPECIAL RULES FOR CONTROLLER-APPELLANTS.
The Federal Circuit, apparently convinced it had
effectively decided most, if not all of the issues in the con-
troller litigation, albeit in the total absence of any input
on that question from the non-lead case controller-appel-
lants, proceeded in the aftermath of the lead case dispo-
sitions with an issue preclusion format.
In December, 1984, the Federal Circuit announced that
the suspension affecting over 99% of the controller ap-
peals would be lifted on January 10, 1985. However, those
wishing to proceed were required to file a second petition
for review. If a second petition were not filed, the notice
provided, the appeal would be dismissed. The attorneys
for the controllers were again warned not to pursue
frivolous appeals.”
10Notice to Counsel and Petitioners in ATC litigation,
(Fed. Cir. May 18, 1984).
41 Notice to counsel in ATC litigation (Fed. Cir. Decem-
ber 10, 1984).
ee. ee
In other post-lead case orders, the Federal Circuit
simply abandoned the statutory requirements for deciding
appeals brought pursuant to 5 U.S.C. Section 7703.
For example, Section 7703 (c) requires the Federal
Circuit to “review the record” in employee-appeals from
the MSPB. In the case of every Section 7703 appellant —
other than those among the controller class of 1981 — the
Clerk of the Federal Circuit receives from the Secretary
of the MSPB, a certified copy of the record before the
Board.
In these cases, the MSPB was advised not to certify
or submit these records to the Court.
Next, the Court decided to abandon its own rules re-
garding the random assignment of rotating panels of
judges,’ and the requirements of statute,"* by consciously
assigning the two identical panels which had participated
in the lead cases to decide the controller cases, to the ex-
clusion of all other judges of the Circuit.
The first ninety-nine controller cases decided after the
lead case disposition were all assigned to one of two iden-
tical three judge panels. With a few cxceptions, all of
these cases were decided on an issue preclusion format,
with short, identically worded form decisions, completely
devoid of adjudicative reasoning, with the sole justifica-
tion for the result being some unexplained reference to
one or more of the lead cases.
Apparently in August, 1985, in vet another policy deci-
sion not announced to the litigants affected thereby, the
Federal Circuit decided to prohibit oral argument in the
2 C.A.F.C. Rule 3(b) (1984).
8 28 U.S.C. 46(b).
eee
remaining controller cases. Although no oral arguments
were scheduled on any controller cases between August,
1985 and March, 1986, the policy to abandon the require-
ments of F.R.A.P. 34 (a) did not come to light until Janu-
ary, 1986, when the Clerk of the Federal Circuit disclosed
the policy to one of the controller’s attorneys.”
A motion filed with the Court by the same attorney,
asking the Court to comply with the applicable statutes
and appellate rules governing assignment of panels and
the procedures for declining oral argument, was denied
by the Federal Circuit, in banc, on the ground the harm
to the movant had not yet occurred.*
In spite of the denial of the motion to gain compliance,
the Federal Circuit did make adjustments to both the
assignment and oral reply procedures applied to these
controllers.
As to the oral reply procedures, the Clerk of the Fed-
eral Circuit issued a notice to the remaining controller-
appellants, including these petitioners, to present reasons
why oral argument would be necessary. Pursuant to
F.R.A.P. 34, such a notice is given only after an existing
panel of three judges, after reviewing the record and
briefs, has unanimously voted that oral argument is un-
necessary. At the time the Clerk issued the notices in the
cases of these petitioners, none of the cases had even been
assigned to a panel, and some of the cases were not even
fully briefed.
In light of this, the petitioners’ attorney wrote a letter
to the Clerk of the Federal Circuit, which requested a copy
%* Complaint of Attorney Richard Leighton to the Judi-
cial Conference of the United States, February 25, 1986.
**Order of February 7, 1986, denying Attorney Leigh-
ton’s Motion to gain Court compliance with its own rules.
ae ae
of the Court’s order which led to his notice on the oral
argument issue. The Clerk responded, in the pertinent
part, that he was “unable to comply with (the) request
to provide a copy of a court order regarding the request
for oral argument because there is no such court order.’
After this disclosure was added to the matters vrought
to the attention of the Judicial Conference, the Clerk sent
an unsolicited letter amending that statement. In the sec-
ond letter, the Clerk explained that the Rule 34 Notice
was actually sent on the verbal order of the entire court.
On March 24, 1986, the Federal Circuit also modified
its practice regarding the assignment of panels to the re-
maining controller cases. The number of panels was in-
creased to more closely simulate ordinary rotation. How-
ever, the cases were not assigned on a blind rotation basis.
In the context of the issue preclusion format, the
changes involved more form than substance. Within about
a month after assignment of the controller appeals to the
new panels, the Court issued a volume of almost identi-
cally worded, form decisions which were, with few excep-
tions, completely devoid of any discussion of the legal
and factual issues raised. As evident from the decisions
in Appendix 1 infra, all of petitioners cases herein were
treated under the issue preclusion forinat. In some cases,
the wording in the form decisions issued by different
panels was identical. In most others, it was nearly
identical.
In sum, the appeals of these petitioners were rejected
based upon the record of other litigants and arguments
considered in the light of the other records.
1® Attachment to Complaint of Phillip S. Wood to Judi-
cial Conference of the United States, March 17, 1986.
ecg ace
REASONS FOR GRANTING THE WRIT
I.
THE DECISIONS BELOW SO FAR DEPART FROM
THE REQUISITES FOR FAIR ADJUDICATION, AS
DEFINED BY STATUTE, RULE AND THE PRIOR
DECISIONS OF THIS COURT AS TO CALL FOR AN
EXERCISE OF THIS COURT’S SUPERVISORY
POWERS AND GUIDANCE.
INTRODUCTION
In setting forth a chronology of facts which give rise
to the petitioners complaint that they were subjected to
fundamentally defective procedures below, the petitioners
do not wish to imply a belief that they were the object of
sinister conspiracy. However, errors in an adjudicative
process can be just as real and prejudicial even if moti-
vated out of legitimate attempts to maintain efficiency or
judicial economy in the face of a burdensome case load.
A. The process below was fundamentally defective.
Each of the petitioners had an appeal as of right to
the Federal Circuit, 5 U.S.C. 7703. Like any other appel-
lant seeking review of an MSPB decision, each of them
had a right to have their own individual record reviewed
on a substantial evidence standard, to have the Court
apply the applicable statutes, regulations and case law
to the facts in the record and to have the Court rule on
the legal sufficiency of the procedures eniployed to ter-
minate their careers.
It is obvious from the facts set forth supra, and the
form of the decisions reproduced in the Appendix, that
these basic statutory rights to a fair process of judicial
review were effectively denied, or sacrificed in favor of an
issue preclusive, lead case method of adjudication.
a eT
oe
This Court has, of course, recognized that in some liti-
gation situations a proper application of issue preclusion
may serve the interests of conserving judicial resources
without denying the affected litigants a full and fair op-
portunity to litigate their cases. E.g. Blonder-Tongue
Laboratories, Inc. v. University of Illinois Found, 402
U.S. 313 (1971); Parklane Hosiery Co. v. Shore, 439 U.S.
322 (1979); Montana v. United States, 440 U.S. 147
(1979).
The anomaly of the controller litigation is that a form
of issue preclusion was initially sought by an attorney
for some of the controllers in a motion for national con-
solidation filed in 1981. Trick v. Department of Transpor-
tation, MSPB No. HQ 075281F1113 (1981). As tempting
as that suggestion must have been to the MSPB, which
faced an unprecedented case load due to the controller
appeals, the Board, unlike the Court below, recognized
the necessity of issuing notice to all of the appellants who
could have been affected and of providing these litigants
an opportunity to respond (id.). After reviewing these
responses the MSPB denied the motion, noting there was
a dissimilarity in factual defenses, issues and even pro-
cedures applied among the various FAA facilities. Ade-
quacy of representation was also a factor, as was the
inability to select a case or cases typical of cthers.
Certainly, where it is deemed inappropriate to try cases
under an issue preclusion format, the reasons which
prompted rejection of the doctrine in the first instance
take on even greater force in the appellate review of cases
separately litigated, with different evidentiary records.
Even ignoring, however, the basic inappropriateness
of the issue preclusion device to the Federal Circuit’s
review, the process by which a single judge, on behalf
—12— f
of the Court, adopted the lead case format must, at a mini-
mum, be characterized as repugnant to fair adjudication.
First, it is unquestionable that the government’s motion
for the Court to adopt the lead case procedure should have
been served on all of the controller-appeliants whose
rights were potentially affected. Clearly, prior to granting
such a motion, the Circuit Judge should have afforded
those appellants whose cases were to be frozen, and rights
truncated, some opportunity to respond. Fundamental due
process required at least that much.
Second, some caution should have been exercised in the
selection of the lead eases to avoid use of atypical or
poorly litigated cases as a preclusion to others where
the facts and issues were, perhaps, better developed. In
the instant case the Court apparently allowed the govern-
ment the right to select the cases which would receive
the lead case treatment to the exclusion of the others.
This is no frivolous concern, particularly in cases
where, as here, there is a complete lack of mutuality
among the affected parties. One of the primary misgiv-
ings expressed by Professor Currie concerning the trend
toward abandonment of mutuality in issue preclusion
eases is the possibility that a litigant’s opponent may
obtain unfair advantage by assuming the initiative on a
threshold issue such as the designation of a lead case.
See Currie, Civil Procedure, The Tempest Brews, 53 Calif.
L. Rev. 25, 27 (1965) :
. .. to jettison the mutuality rule without some sav-
ing provision might lead to * * * injustice in those
cases in which, by reason of his opponent’s astute
employment of the initiative, the party against whom
the former judgment is invoked did not, in the former
action have, in a realistic sense, a full and fair oppor-
tunity to defend.
|
To illustrate the decisive nature of the process of selec-
tion of a “lead case” to the cases of these petitioners, we
briefly summarize the relevant facts in some of the peti-
tioners’ records, and compare with the facts of the “iead”
case which issue precluded petitioners’ cases, according
to the Federal Circuit’s decisions.
For example, petitioner Richard DeLutri asserted a
legal excuse for his absence from duty, in that he was
incapacitated due to a spinal problem later diagnosed as
an intrameduliary spinal cord tumor. At his hearing, his
incapacity was corroborated by his treating physician,
his wife, four other witnesses and his supervisor. All of
the agency witnesses confirmed that the prescription medi-
cation he was ingesting would, of itself, have incapaci-
tated him from duty. He introduced corroborating medical
documents and even the full report of a polygraph exami-
nation which he took, and passed, and which confirmed
his absence was not due to strike participation. His re-
port of his condition to his employer was according to
the facility practice and policy, as the ageney chief con-
firmed. His supervisor even corroborated Mr. DeLutri’s
additional effort to reach the supervisor at his home.
This evidence was not only uncontraverted by the agency,
the agency witnesses substantially corroborated it. The
only agency evidence introduced against Mr. DeLutri was
anonymous hearsay, i.e. agency attendance records which
showed that some unidentified agency official marked Mr.
DeLutri absent without leave. In the course of the hear-
ing even the hearsay was discredited, as the agency ad-
mitted it had been altered long after the dates in question.
Mr. DeLutri’s case was issue precluded by the lead case
Triola v. Department of Transportation, 769 F 2d 760
ee ee
(1985).27 Aside from the category of the substantive de-
fenses, incapacity, the two cases were not analogous in
‘any way.
The Triola appellant appeared pro se. He claimed he
was ill or suffering allergy on the relevant dates, but
admitted making no attempt to report his incapacity to
the agency. He neither sought nor received medical treat-
ment. He presented no corroborative evidence of any
- kind.
Even ignoring the lack of substantial identity of the
facts and the other infirmities in the post hoc adoption of
the lead case format, it appears absurd to select the case
of an unrepresented appellant who had presented, at best,
an undeveloped record and, at worst, a frivolous case, for
purpose of issue preclusion.
The Triola case was also cited by the Federal Circuit
to issue preclude the cases of petitioners Patrick Lydon
and Thomas Toepfer.
Mr. Lydon’s wife had prematurely given birth to a baby
boy on July 31, 1981, three days before the PATCO strike.
The petitioner’s son was born with a total weight of one
and a half pounds and was given only a 20% chance of
‘survival. Mr. Lydon immediately reported the family
emergency to his supervisor, who granted and recorded
emergency annual leave for the duration of the crisis.
Over the next several weeks, while the strike was going
* The Triola case was not even one of the eleven cases
selected for lead case treatment before the 5 judge panel.
It was heard by an ordinary 3-judge panel. The petitioner
appeared pro se and the decision rendered in July, 1985.
‘ Six months later the case was elevated to the lead case
status by notice of the Clerk on February 7, 1986. This
was purely an afterthought, probably due to the fact that
none of the 11 lead cases involved incapacity.
ie.
on, Mr. Lydon was keeping a constant vigil at his baby
son’s room at a hospital, a period of time in which the
Lydon boy had, on four occasions, stopped breathing. A
few days after the PATCO strike began, and in the midst
of this crisis, an agency official whose identity has never
been revealed, marked Mr. Lydon absent without leave
and he was fired.
Mr. Toepfer underwent major surgery for a prostrate
problem in late July, 1981. He was on approved sick
leave during his post-operative recovery for the entire
month of August, 1981. In an effort to return to work
to assist an agency which needed his services, he asked
his doctor to allow him to return on September 7, 1981,
and he so notified the agency. When he drove to work on
the return date he became weak and discovered he was
bleeding from his penis. When he discussed the situation,
by phone, with his facility area manager, the manager
angrily told him tiat his failure to report would be con-
strued as striking. That threat was carried out and Mr.
Toepfer, a man who had three times crossed the picket
line to personally advise the agency of his situation, was
fired.
B. The improper denial of oral argument was prej-
udicial.
The curtailment of important litigation rights, without
adherence to the Court’s own rules, is significant in any
case. The abandonment of the F.R.A.P. 34 (a) procedures
in the context of these cases was particularly prejudicial.
Given the fact that these petitioners had already been
denied any notice or opportunity to be heard on the gov-
ernment’s motion and the Court’s adoption of the issue
preciusion format, the oral argument procedure could
have served an even greater role in the adjudicative pro-
—_—
cess than its usual function in sharpening the issues and
encouraging dialogue on decisive facts or points of law.
While denial of oral argument may be committed to
the sound discretion of a panel, which, under Rule 34 (a),
may by unanimous vote abrogate the right, the discretion
of a Cireuit panel is not the issue before this Court. In-
stead, as the facts and record show, supra, the denial of
the oral argument involved herein was accomplished in
the abstract, prior to the assignment of the case to a
3 judge panel.
This flagrant abandonment of Rule 34 (a) procedures,
and the consequent loss of important rights should, of
itself, justify invocation of this Court’s supervisory
powers.
O. The Federal Circuit’s decisions in the petitioners’
cases are impermissibly devoid of adjudicative reasoning.
As apparent from the decisions reproduced in the ap-
pendix, the lower court, consistent with its issue prec!u-
sion format, found it unnecessary to address specific facts
and issues or to otherwise state the reasons for its judg-
ment other than by way of a vague and unexplained refer-
ence to one or more of the lead cases.
It is impossible to determine whether the Federal Cir-
cuit fulfilled the statutory mandate of reviewing the rec-
ord and determining the presence or absence of substan-
tial evidence.
The form decisions involved here also cannot be dis-
tinguished from the decisions of the same ilk which were
issued by other panels in the controller cases. In some
instances the decisions contain identical wording, even
though two supposedly different 3 judge panels decided
them.
x oe
Although this Court has, in some contexts, expressed
reluctance to carve out an inflexible rule on the precise
degree of judicial reasoning it will consider sufficient, it
has not hesitated to remand cases in which the analysis
is so lacking as to require the Court to speculate as to
the specific basis underlying the opinion, See, e.g. Denni-
son Manufacturing Co. v. Panduit Corp., No. 85-1150 (S.
Ct. April 21, 1986) —— U.S. —— (1986).
CONCLUSION
II.
For the foregoing reasons, it is respectfully requested
that this petition for certiorari be granted.
_ Respectfully submitted,
Puiture S. Woop
Pasxky Anp Woop
220 E. Galena Blvd.
P.O. Box 2729
Aurora, IL 60507
312/844-2560
Gary Erxan Kier
1725 K. Street N.W.
Suite 302
Washington, D.C.
202/296-1120
Attorneys for Petitioners
INDEX TO APPENDIX
DESCRIPTION Page
I. OPINIONS OF THE FEDERAL CIRCUIT:
(a) David Anderson et al. (consolidation includes
Dai el C. Staffin, Richard S. Andrew, Tim-
othy P. Clouser, John W. Gorman, Michael
C. Lacy, Jack B. Skaul, Dennis P. O’Bremski,
Donald O’Grady and Anna Lissak) No. 85-
Es Te i ED hc ticcscienenniea initia la
(b) Richard J. Brandis and John W. Holic, No.
SS-25LG (ADEE 26, TRG) ...ccscnssesscesecdeacsssvessserenee 3a
Order on petition for réhearing (May 16,
1986) sindipsidanabedaNadiakdiakialecnnsteadiliitelidamadbatedescnen 4a
(c) James F. Burgard, No. 85-2815 (April 17,
Pe addeassiciateilpaihasictsccdaspisiate ashe sabinsdtcaddighilpieitiidiane oa
(d) Brenda Conroy No. 85-1061 (Aprii 14, 1986) .. 6a
(e) Richard DeLutri, No. 85-1063 (April 11,
SUN Seassiduuantadacessuiicsloseantathavatadcaichcchanideslinelidatiyeiniess 8a
Order on petition for rehearing (May 16,
STUe ;- (= sanssblbdacocedieraiusachsapnacialadicts saiasdaasabiaadaleieiel 9a
(f) Jeffery R. Ellis (Consolidation includes Ken-
neth Popowitch and Donald Schuemann) No.
Se CRE BG, TE cxcvctinicevscesiacimrionnssain 10a
Order on petition for rehearing (May 27,
SED atin scaiaeAinisacesGudanatiemanamlaimiain lla
(g) Patrick Lydon, No. 85-2817 (April 14, 1986) .. 12a
Order on petition for rehearing (May 16,
ET <_ snscthciinndicessbiciaiaarmiaiaialinamadacten 13a
(h) Betty J. Murphy, No. 85-1066 (April 23,
NITE: :sussainolasonasepsabiittaiinscb ianmvidammnabsemaetabiaaaiaintadmn 14a
Order on petition for rehearing (June 23,
ZEEE | :aniisscasaneneesnsenmeiaianteenanmeaialaas 15a
(2)
(3)
(k)
ii
Peter J. Piorkowski, No. 85-2819 (April 14,
DUP -<pemetiin cet ceva hvoics-c cinnekissnioe tusssecaunabeibivenatelcaeecsbih 16a
Darryl Romashko, No. 85-1065 (April 23,
DIENT fis ck hese coslinncladacnicnbealbacts taeda cnulaakepanusedioks 17a
Order on petition for rehearing (May 21,
IE nssxssnieenidigneetiaepiauepiceteetaaauiacaeallonaibtenieiaies 19a
Thomas A. Toepfer, No. 85-2822 (April 11,
UNITE |- ccbsisiacaicilissh dee seiedi dea-auinscoduinibnancaiaealaibelanabbcaiteessiitcas 20a
Order on petition for rehearing (May 16,
SR: Seeepsianiais esdlalsirnaceetaNl dacsiipinaigureiletaindaninkeia yin vans 2la
Il. FINAL DECISIONS OF THE MSPB:
(a)
(b)
(c)
Richard S. Andrew et al. (Consolidation)
MSPB CH075281F0890 (November 28, 1983) 22a
Richard J. Brandis, Behensky et al. (con-
solidation) MSPB CH075281F0979 and MS
PB CH075281F 1066 (July 5, 1985) ou. 30a
Richard J. DeLutri, MSPB CH075281F1377
CS lg: MED. ciindanderveivhiexinedcesacecdugldassigennandiess 4la
— ja —
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
DAVID ANDERSON, et al.,*
Petitioners,
v.
DEPARTMENT OF TRANSPORTATION, FAA,
Respondent.
Appeal No. 85-1067
MSPB Docket No. CH075281F0873
DECIDED: April 25, 1986
Before BALDWIN, NIES, and ARCHER, Circut Judges.
PER CURIAM.
DECISION
The decisions of the Merit Systems Protection Board,
affirming the petitioners’ removal by the Federal Aviation
Administration, Department of Transportation, are af-
firmed.
* The following petitioners are included in this appeal:
Daniel C. Staffin, MSPB Docket No. CH075281F3008;
Richard S. Andrews, MSPB Docket No. CH075281F0890;
Timothy P. Clouser, MSPB Docket No. CH075281F 1243;
John W. Gorman, MSPB Docket No. CH075281F1670;
Michael C. Lacy, MSPB Docket No. CH075281F2140; Jack
B. Shaul, MSPB Docket No. CH075281F2928; Dennis P.
Obremski, MSPB Docket No. CH075281F2545; Donal
O’Grady, MSPB Docket No. CH075281F2538; Anna Lis-
sak, MSPB Docket No. CH075281F2223.
wcll
OPINION
Notwithstanding the request of counsel for oral argu-
ment, 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).
This appeal raises no issue not resolved in, and pre-
sents no fact pattern which differs significantly from that
in Johnson v. Department of Transportation, FAA, 735
F.2d 510 (Fed. Cir. 1984); see also Adams v. Department
of Transportation, FAA, 735 F.2d 488 (Fed. Cir.), cert.
denied, 105 S. Ct. 432 (1984), and Anderson v. Department -
of Transportation, FAA, 735 F.2d 537 (Fed. Cir.), cert.
denied, 105 S. Ct. 482 (1984). Petitioners have not re-
butted the prima facie showing of strike participation
made by the agency, Schapansky v. Department of Trans-
portation, FAA, 735 F.2d 477 (Fed. Cir.), cert. denied, 105
S. Ct. 482 (1984), and have not shown any harmful pro-
cedural errors, Handy v. U.S. Postal Service, 754 F.2d
335 (Fed. Cir. 1985).
The decisions appealed from were not arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance with law, were not obtained without procedures -
required by law, rule, or regulation having been followed,
and were supported 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).
This appeal is frivolous. Counsel has failed to dis-
tinguish the precedents of this Court in any meaningful
way. Damages and costs of $100.00 are assessed in favor
of the government against counsel, to be paid within 30
days of the date of this opinion. Fed. R. App. P. 38.
— on
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
RICHARD J. BRANDIS, ET AL.,
Petitioners,
v.
DEPARTMENT OF TRANSPORTATION, FAA,
Respondent.
Appeal No. 85-2813.
MSPB Decision Nos. CH075281F1066
and CH075281F 1866.
DECIDED: April 14, 1986
Before BALDWIN, NIES, and ARCHER, Circuit Judges.
PER CURIAM.
DECISION
The decisions of the Merit Systems Protection Board,
affirming petitioners’ removal by the Federal Aviation
Administration, Department of Transportation, are af-
firmed.
OPINION
Notwithstanding the request of counsel for oral ar,~
ment, we have determined on the basis of the request and
the briefs that oral argument will not be necessary be-
cause the dispositive issue or set of issues has been au-
thoritatively 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).
This appeal raises no issue not resolved in, and pre-
sents no fact pattern which differs significantly from that
in Anderson v. Department of Transportation, FAA, 735
aiandielicaams
F.2d 537 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984) ;
and Adams v. Department of Transportation, FAA, 735
F.2d 488 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984).
The decision appealed from was not arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance with law, was not obtained without procedures re-
quired by law, rule, or regulation having been followed,
and was supported 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).
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
RICHARD J. BRANDIS, ET AL.,
Petitioners,
v.
DEPARTMENT OF TRANSPORTATION, FAA,
Respondent.
Appeal No. 85-2813
MSPB Decision Nos. CH075281F1066
and CH075281 F 1866.
Before BALDWIN, NIES, and ARCHER, Circwit Judges.
ORDER
A petition for rehearing having been filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the
same hereby is, denied.
FOR THE COURT
/s/ Francis X. Gindhart
Francis X. Gindhart, Clerk
5/16/86
Date
ec: Mr. Phillip S. Wood
Ms. Hillary A. Stern, DOJ
—
Unrrep States Court or APPEALS
FOR THE F'epeERAL Crrcurt
James F’. Burcarp,
Petitioner,
¥;
DeparRTMENT Or Transportation, FAA,
Respondent.
Appeal No. 85-2815
MSPB Decision
No. CH075281F1131
Decipep: Aprit 14, 1986
Before Batpwin, Nigs, and Arcuer, Circuit Judges.
Per Curiam.
DECISION
The decision of the Merit Systems Protection Board,
affirming petitioner’s removal by the Federal Aviation
Administration, Department of Transportation, is
affirmed.
OPINION
Notwithstanding the request of counsel for oral argu-
ment, we have determined on the basis of the request and
the briefs that oral argument will not be necessary be-
cause 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).
This appeal raises no issue not resolved in, and pre-
sents no fact pattern which differs significantly from that
in Anderson v. Department of Transportation, FAA, 735
F.2d 537 (Fed. Cir.), cert. dened, 105 S. Ct. 482 (1984);
pee ee
and Schapansky v. Department of Transportation, FAA,
735 F.2d 477 (Fed. Cir.), cert. denied, 105 S. Ct. 432
(1984).
The decision appealed from was not arbitrary, caprici-
ous, an abuse of discretion, or otherwise not in accordance
with law, was not obtained without procedures required
by law, rule or regulation having been followed, and was
supported 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).
Unitep States Court or APPEALS
FOR THE FEDERAL Crrcuit
Brenpa L. Conroy,
Petitioner,
Vv.
DEPARTMENT Or TRANSPoRTATION, FAA,
Respondent.
Appeal No. 85-1061
MSPB Docket No. CH075281F1273
Decipep: Aprit 14, 1986
Before BaLtpwin, Nies, and Arcuer, Circuit Judges.
Per Curiam.
DECISION
The decision of the Merit Systems Protection Board,
affirming the petitioner’s removal by the Federal Aviation
Administration, Department of Transportation, is
affirmed.
—
OPINION
Notwithstanding the request of counsel for oral argu-
ment, we have determined on the basis of the request and
the briefs that oral argument will not be necessary be-
cause the dispositive issues have been authoritatively de-
cided, the facts and legal argument are adequately pre-
sented in the briefs and record, and the decisional process
would not be aided by oral argument. Fed. R. App. P.
34(a).
The agency established its prima facie case by present-
ing evidence that Conroy did not report to work on August
3 and 4 and for her deadline shift starting at 11:00 PM
on August 5, 1981. See Schapansky v. Department of
Transportation, FAA, 735 F.2d 477 (Fed. Cir.), cert.
denied, 105 S. Ct. 432 (1984). For two reasons, we re‘ect
Conroy’s argument that she overcame the agency’s ; ma
facie case by showing that the deciding official issued Uon-
roy’s letter prior to her deadline shift. First, under
Anderson v. Department of Transportation, FAA, 735
F.2d 537 (Fed. Cir.), cert. denied, 105 S. Ct. 482 (1984),
Conroy’s admitted strike participation even on one day
is enough to sustain her removal. Second, because Conroy
offered no evidence that she knew, before her deadline
shift, that her notice of removal had been issued or that
the agency prevented her from reporting to work, she has
not carried her burden to show that the asserted pro-
cedural error was harmful. See Handy v. U.S. Postal Ser-
vice, 754 F.2d 335 (Fed. Cir. 1985).
The decision appealed from was not arbitrary, caprici-
ous, an abuse of discretion, or otherwise not in accordance
with law, was not obtained without procedures required
by law, rule, or regulation having been followed, and was
supported 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).*
* Conroy’s motion to remand for consideration of newly
discovered evidence of fraud in the agency records is in-
adequately supported and is denied.
— yo
Unitep States Court or APPEALS
FOR THE FEDERAL CIRCUIT
Ricnarp Devutri,
Petitioner,
¥
DeparTMENT Or Transportation, FAA,
Respondent.
Appeal No. 85-1063
MSPB Docket No. CH075281F1377
Decipep: Aprit 11, 1986
Before BaLtpwin, Nies, and ArcHer, Circuit Judges.
Per Curiam.
DECISION
The decision of the Merit Systems Protection Board,
affirming the petitioner’s removal by the Federal Aviation
Administration, Department of Transportation, is
affirmed.
OPINTON
Notwithstanding the request of counsel for oral argu-
ment, we have determined on the basis of the request and
the briefs that oral argument will not be necessary be-
cause the dispositive issue or set of issues has been
authoritatively decided, the facts and legal argument are
adequately presented in ihe briefs and record, and the
decisional process would not be aided by oral argument.
Fed. R. App. P. 34(a).
This appeal raises no issue not resolved in, and pre-
sents no fact pattern which differs significantly from that
in Triola v. Department of Transportation, FAA, 769 ¥.2d
760 (Fed. Cir. 1985).
ee
The decision appealed from was not arbitrary, caprici-
ous, an abuse of discretion, or otherwise not in accordance
with law, was not obtained without procedures required
by law, rule, or regulation having been followed, and was
supported 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).
This appeal is frivolous. Counsel has failed to distin-
guish the precedents of this Court in any meaningful way.
Damages and costs of $500.00 are assessed in favor of the
government against counsel, to be paid within 30 days of
the date of this opinion. Fed. R. App. P. 28.
Unitep States Court or APPEALS
FOR THE Frperar, Crrevit
Ricnarp Detutrt,
Petitioner,
Vv.
DepaRTMENT Or Transportation, FAA,
Respondent.
Appeal No. 85-1063
MSPB Docket No. CH075281F1377
Before Batowryn, Nres, and Arcner, Circuit Judges.
ORDER
A petition for rehearing having been filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the
same hereby is, denied. !
The suggestion for rehearing in banc is under consid-
eration.
FOR THE COURT
/s/ Franeis X. Gindhart
Francis X. Gindhart, Clerk
5/16/86
ec: Mr. Phillip S. Wood
Ms. Sandra P. Spooner, DOJ
— 10a —
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
JEFFREY R. ELLIS, ET AL,
Petitioners,
v.
DEPARTMENT OF TRANSPORTATION, FAA,
Respondent.
Appeal No. 85-2816.
MSPB Decision No. CH075281F 1465.
DECIDED: April 14, 1986
Before BALDWIN, NIES, and ARCHER, Circuit Judges.
PER CURIAM.
DECISION
The decisions of the Merit Systems Protection Board,
affirming petitioners’ removal by the Federal Aviation
Administration, Department of Transportation, are af-
firmed.
OPINION
Notwithstanding the request of counsel for oral argu-
ment, we have determined on the basis of the request and
the briefs that oral argument will not be necessary be-
cause the dispositive issue or set of issues has been au-
thoritatively decided, the facts and legal argument are |
adequately presented in the briefs and record, and the
decisional process would not he aided by oral argument.
Fed. R. App. P. 34(a).
Petitioners’ arguments are adequately treated in the
presiding official’s opinion dated January 18, 1983. We
affirm on the basis of that opinion.
—Iila—
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
JEFFREY R. ELLIS, ET AL.,
Petitioners,
v.
DEPARTMENT OF TRANSPORTATION, FAA,
Respondent.
Appeal No. 85-2816.
MSPB Docket No. CH075281F 1465.
Before RICH and DAVIS, Circuit Judges, and COWEN,
Senior Circut Judge.
ORDER
A petition for rehearing having been filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the
same hereby is, denied.
FOR THE COURT
/s/ Francis X. Gindhart
Francis X. Gindhart, Clerk
5/27/86
Date
ec: Mr. Phillip S. Wood
Ms. Hillary A. Stern, DOJ
ow 196 u.~
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
PATRICK LYDON,
Petitioner,
Vv.
DEPARTMENT OF TRANSPORTATION, FAA,
Respondent.
Appeal No. 85-2817.
MSPB Decision No. CH075281F2258.
DECIDED: April 14, 1986
Before BALDWIN, NIES, and ARCHER, Circuit Judges.
PER CURIAM.
DECISION
The decision of the Merit Systems Protection Board,
affirming petitioner’s removal by the Federal Aviation
Administration, Department of Transportation is affirmed.
OPINION
Notwithstanding the request of counsel for oral argu-
ment, we have determined on the basis of the request and
the briefs that oral argument will not be necessary be-
cause the dispositive issue or set of issues has been au-
thoritatively 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).
This appeal raises no issue not resolved in, and pre-
sents no fact pattern which differs significantly from that
in Triola v. Department of Transportation, FAA, 769 F.2d
760 (Fed. Cir. 1985); Anderson v. Department of Trans-
portation, FAA, 735 F.2d 537 (Fed. Cir.), cert. denied, 105
— 13a —
S. Ct. 432 (1984); and Schapansky v. Department of
Transportation, FAA, 735 F.2d 477 (Fed. Cir.), cert. Je-
nied, 105 S. Ct. 482 (1984).
The decision appealed from was not arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance with law, was not obtained without procedures re-
quired by law, rule, or regulation having been followed,
and was supported 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).
Unitep States Court or APPEALS
FOR THE FEDERAL CIRCUIT
Patrick Lypon,
Petitioner,
v.
DEPARTMENT Or Transportation, FAA,
Respondent.
Appeal No. 85-2817
MSPB Decision No. CH075281F2258
Before Batpwriy, Nigs, and Arcuer, Circuit Judges.
ORDER
A petition for rehearing having been filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the
same hereby is, denied.
FOR THE COURT
/s/ Francis X. Gindhart
Francis X. Gindhart, Clerk
5/16/86
Date
ec: Mr. Phillip S. Wood
Ms. Eva M. Plaza, DOJ
— 14a —
Unitep States Court or APPEALS
FOR THE FEDERAL CIRCUIT
Berry J. Murpuy,
Petitioner,
v.
DepartTMeNT Or Transportation, FAA,
Respondent.
Appeal No. 85-1066
MSPB Docket No. CH075281F2465
Decipep: Apri. 23, 1986
Before Baupwin, Nirs, and Arcuer, Circuit Judges.
Per CuriAM.
DECISION
The decision of the Merit Systems Protection Board,
affirming the petitioner’s removal by the Federal Avia-
tion Administration, Department of Transportation, is
affirmed. . ,
OPINION
Notwithstanding the request of counsel for oral argu-
ment, we have determined on the basis of the request and
the briefs that oral argument will not be necessary be-
cause 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).
We are not persuaded that the Board erred in deter-
mining that petitioner’s testimony regarding a personal
emergency and thereafter confusion about her status and
deadline shift was insufficient to rebut the prima facie case
against her, particularly in view of her failure to contact
= 15a —
the agency for emergency leave and clarification. See
Schapansky v. Department of Transportation, FAA, 735
F.2d 477 (Fed. Cir.), cert. denied, 105 S. Ct. 482 (1984),
and Anderson v. Department of Transportation, FAA, 735
F.2d 537 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984).
The decision appealed from was not arbitrary, caprici-
ous, an abuse of discretion, or otherwise not in accordance
with law, was not obtained without procedures required
by law, rule, or regulation having been followed, and was
supported 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).
Unrvrep States Court or APPEALS
FOR THE FEDERAL CrRcuItT
Betty J. Murpny,
Petitioner,
Vv.
DEPARTMENT Or Transportation, FAA,
Respondent.
Appeal No. 85-1066
MSPB Docket No. CH075281F2465
Before Batpwiy, Nies, and Arcuer, Circuit Judges.
ORDER
A petition for rehearing having been filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the
same hereby is, denied.
The suggestion for rehearing in banc is under consid-
eration.
FOR THE COURT
/s/ Francis X. Gindhart
Francis X. Gindhart, Clerk
6/23/86
Date
ec: Mr. Phillip S. Wood
Ms. Sandra P. Spooner, DOJ
a
Unitep States Cour? or APPEALS
FOR THE F'eperat, Circuit
Pster J. ProrkowskI,
Petitioner,
v.
DepaRtMENT Or Transportation, FAA,
Respondent.
Appeal No. 85-2819
MSPB Docket No. CH075281F2643
Decrpep: Aprit 14, 1986
Before Batpwin, Niges, and Arcuer, Circuit Judges.
Per Curiam.
DECISION
The decision of the Merit Systems Protection Board,
affirming the petitioner’s removal by the Federal Avia-
tion Administration, Department of Transportation, is
affirmed.
OPINION
Notwithstanding the request of counsel for oral argu-
ment, we have determined on the basis of the request and
the briefs that oral argument will not be necessary be-
cause the dispositive issues have been authoritatively de-
cided, the facts and legal argument are adequately pre-
sented in the briefs and record, and the decisional process
would not be aided by oral argument. Fed. R. App. P.
34(a).
Before the board, Mr. Piorkowski offered several rea-
sons why his absence without approval during the strike
should be excused. Each was rejected by the board. Mr.
Piorkowski has failed to persuade us of any error in the
board’s analysis, see Schapansky v. Department of Trans-
portation, FAA, 735 F.2d 477 (Fed. Cir.), cert. demed, 105
S. Ct. 432 (1984), or that the board’s failure to accept the
explanations for his absences was improper. See Gries-
—= =
— 17a —
senauer v. Department of Energy, 754 F.2d 361, 364 (Fed.
Cir. 1985).
We affirm on the basis of the Board’s opinion because
the board’s decision was not arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law, was not obtained without procedures required by law,
rule, or regulation 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).
This appeal is frivolous. Counsel has failed to distin-
guish the precedents of this Court in any meaningful way,
or has presented arguments which clearly have no merit.
Damages and costs of $100.00 are assessed in favor of the
government against counsel, to be paid within 30 days of
the date of this opinion. Fed. R. App. P. 38.
Unitep States Court or APPEALS
FOR THE F'epveRar, Crrcuit
Darryt. RoMasHKo,
Petitioner,
v.
DEPARTMENT Or TRANSpoRTATION, FAA,
Respondent.
Appeal No. 85-1065
MSPB Docket No. CH075281F2786
Decipep: Aprit 23, 1986
Before Batnowrn, Nres, and ArcHer, Circuit Judges.
Per CurraM.
DECISION
The decision of the Merit Systems Protection Board,
affirming the petitioner’s removal by the Federal Avia-
tion Administration, Department of Transportation, is
affirmed.
— 18a —
OPINION
Notwithstanding the request of counsel for oral argu-
ment, we have determined on the basis of the request and
the briefs that oral argument will not be necessary be-
cause 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).
This appeal raises no issue not resolved in, and pre-
sents no fact pattern which differs significantly from that
in Schapansky v. Department of Transportation, FAA,
735 F.2d 477 (Fed. Cir.), cert. denied, 105 S. Ct. 482
(1984); see also Anderson v. Department of Transporta-
tion, FAA, 735 F.2d 537 (Fed. Cir.), cert. dented, 105 S.
Ct. 432 (1984), and Adams vy. Department of Transporta-
tion, FAA, 735 F.2d 488 (Fed. Cir.), cert. denied, 105 S.
Ct. 432 (1984).
The decision appealed from was not arbitrary, caprici-
ous, an abuse of discretion, or otherwise not in accordance
with law, was not obtained without procedures required
by law, rule, or regulation having been followed, and was
supported 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).
so ae Di SUA se ins Mahia nlis 2oe mse A Venn
ee
— 19a —
Unitep States Court or APPEALS
FOR THE F'eperRar, Circuit
DanieL RoMAsHKO,
Petitioner,
V.
DEPARTMENT Or TRansportaTIoNn, FAA,
Respondent.
Appeal No. 85-1065
MSPB Docket No. CH075281F2786
Before BaLpwiy, Nites, and Arcuer, Circuit Judges.
ORDER
A petition for rehearing having been filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the
same hereby is, denied.
The suggestion for rehearing im banc is under consid-
eration.
FOR THE COURT
/s/ By: Diane Frye, Chief Deputy Clerk
Francis X. Gindhart, Clerk
5/21/86
Date
ec: Mr. Phillip S. Wood
Ms. Sandra P. Spooner, DOJ
—
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
THOMAS A. TOEPFER,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION, FAA,
Respondent.
Appeal No. 85-2822
MSPB Docket No. CH075281F0979
DECIDED: April 11, 1986
Before BALDWIN, NIKES, and ARCHER, Circwt Judges.
PER CURIAM.
DECISION
The decision of the Merit Systems Protection Board,
affirming the petitioner’s removal by the Federal Aviation
Administration, Department of Transportation, is af-
firmed.
OPINION
Notwithstanding the request of counsel for oral argu-
ment, we have determined on the basis of the request and
the briefs that oral argument will not be necessary be-
cause the dispositive issue or set of issues has been au-
thoritatively 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 agency established its prima facie case by showing
that Toepfer did not report to work for his scheduled
deadline shift on September 7, 1981. See generally Scha-
pansky v. Department of Transportation, FAA, 735 F.2d
477 (Fed. Cir.), cert. denied, 105 S. Ct. 482 (1984). Toep-
fer’s testimony that he was physically incapacitated dur-
ing his deadline shift does not rebut the agency’s prima
facie case. See Anderson v. Department of Transporta-
tion, FAA, 735 F.2d 537 (Fed. Cir.), cert. denied sub nom..,
ee ee eee
mii.
105 S. Ct. 482 (1984). We affirm on the basis of the pre-
siding official’s consideration and discussion of the evi-
dence on which Toepfer bases his defense.
The decision appealed from was not arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance with law, was not obtained without procedures re-
quired by law, rule, or regulation having been followed,
and was supported 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).
This appeal is frivolous. Counsel has failed to dis-
tinguish the precedents of this Court in any meaningful
way. Damages and costs of $100.00 are assessed in favor
of the government against counsel, to be paid within 30
days of the date of this opinion. Fed. R. App. P. 38.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
THOMAS A. TOEPFER,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION, FAA,
Respondent.
Appeal No. 85-2822
MSPB Docket No. CH075281F0979
Before BALDWIN, NIES, and ARCHER, Circwit Judges.
ORDER
A petition for rehearing having been filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the
same hereby is, denied.
FOR THE COURT
/s/ Francis X. Gindhart
Francis X. Gindhart, Clerk
5/16/86
Date
ec: Mr. Phillip S. Wood
Ms. Eva M. Plaza, DOJ
nic,
UNITED STATES OF AMERICA _.
MERIT SYSTEMS PROTECTION BOARD
RICHARD S. ANDREWS, et al.’
Vv
DEPARTMENT OF TRANSPORTATION
DOCKET NUMBER
CH075281F 0890
OPINION AND ORDER
Appellants were removed from their positions of Air
Traffic Control Specialists at the Chicago Air Route Traf-
fic Control] Center in Aurora, Lllinois, based on charges
of: (1) striking against the United States Government in
violation of 5 U.S.C. § 7311 and 18 U.S.C. § 1918; and (2)
unauthorized absence or absence without leave (AWOL).
Appellants’ removals were sustained by the Chicago Re-
gional Office of the Board.
* All 23 appellants and their individual docket numbers
are listed on the attached appendix. Appellants’ appeals
to the Regional Office were consolidated for purposes of
hearing and issuance of initial decisions under three lead
cases as follows: appellants Andrews, Clouser, Conroy,
DeMar, Gorman, Hamer, Lacy, Murphy, Nicholas, Ob-
remski, Romashko, Shaul, Simms, Staffin, and Taylor
under Andrews v. Department of Transportation, MSPB
Docket No. CH075281F0890 (Initial Decision dated Febru-
ary 1, 1983); appellants Dwight Anderson, Cichon, Finne-
gan, Lissak, Marchiel and Olson under Lissak v. Depart-
ment of Transportation, MSPB Docket No. CH075281F-
2223 (Initial Decision dated January 20, 1983); and ap-
pellants David C. Anderson and Tomasi under Anderson
v. Department of Transportation, MSPB Docket No. CH-
075281F0873 (Initial Decision dated January 29, 1983).
Appellants have filed a total of eight (8) petitions for
review which raise several identical issues of facts and
law which involve the same air traffic control facility.
Therefore, these petitions are hereby further consolidated
pursuant to 5 U.S.C. § 7701(f).
— 23a —
In their petitions for review, appellants allege various
errors by the presiding officials in sustaining their re-
movals.
Appellants contend that they were physically locked out
of the agency’s facility because the main access gate to
the facility was locked and chained. However, the evidence
shows that the gate was closed for a brief period, from
approximately 9:00 a.m. to 11:00 a.m. on August 5, 1981,
and that the gate was opened to allow vehicles to enter.
Andrews Hearing Transcript (Tr.) at 96, 294. Further,
the walk-through gate to the facility was never closed. /d.
at $6, 494. Thus, appellants have failed to show that they
were denied access to the agency’s facility.
Also, appellants contend that the agency denied them
the right to an election of appeal remedies through the
Board’s appeals process or through grievance and arbi-
tration as provided by 5 U.S.C. §§ 7701 and 7121, respec-
tively. Appellants base their contention solely on the fact
that the agency notified them in their removal notices
that it had filed an unfair labor practice charge against
their union, the Professional Air Traffic Controllers Or-
ganization (PATCO), and that, if PATCO was decertified,
the grievance and arbitration process might not be avail-
able to them. We find nothing in this information to con-
stitute a denial of appellant’s right to an election of ap-
peals remedies and that appellants’ contention in this
regard to be without merit. See Martel v. Department of
Transportation, MSPB Docket No. BN075281F0558 at 17-
18 (April 25, 1983).?
*'The Board has resolved the remaining issues common
to several of these air traffic controller appeals in the fol-
lowing cases: Schapa nsky v. Department of Transporta-
tion, MSPB Docket a7 DAOT5281F 1130 at 6 n.2, and 10-
12 (October 28, 1982) (prima facie case of strike partici-
pation, reasonableness of the penalty of removal upon
consideration of mitigation factors, including disparate
treatment, and nexus between striking and efficiency of the
service) ; Baracco v. Department of Transportation, MS
— 24a —
The following appellants have raised factual issues pe-
culiar to their individual cases:
Ralph Olson
Appellant Olson alleges that he suffered from alcohol-
ism and contends that the agency erred in failing to refer
him to an alcohol rehabilitation program prior to remov-
ing him as is required by 42 U.S.C. § 4561. Appellant
relies, inter alia, on the Board’s holding in Ruzek v. Gen-
eral Services Admmistration, 7 MSPB 307 (1981), in sup-
? (Continued)
PB Docket No. DC075281F0895 at 9, 14 n.6, and 17 (April
25, 1983) (effect of requirement of response to charges
“within 7 calendar days” after receipt of proposal notice,
failure of agency to designate reply official with authority
to recommend final decision, and other procedural errors
in general on agency action); Campbell v. Department of
Transportation, MSPB Docket No. DE075281F0674 at 7,
8 n.9, and 12-16 (April 25, 1983) (striking for any dura-
tion as ground for removal and appellants’ burden of
proof in ascertaining their individual deadlines, in seeking
clarification of existing ambiguities, and in establishing
agency’s denial of readmission to its facility during the
notice period); Anderson v. Department of Transporta-
tion, MSPB Docket No. SL075281F'0347 at 8-13 (April 25,
1983) (“command influence” of public statements made by
President Reagan and high level agency officials during
the strike and invocation of 5 U.S.C. § 7513(b)(1) to
shorten the notice period); Johnson v. Department of
Transportation, MSPB Docket No. DC075281F0998 at 11-
13 (November 10, 1982) (standard for establishing a de-
fense of coercion or duress). See also Malone v. Depart-
ment of Justice, MSPB Docket No. DA03516210042 at 3
(January 19, 1983) (Board’s lack of authority to deter-
mine constitutionality of statutes); Desiderio v. Depart-
ment of the Navy, 4 MSPB 171-72 (1980) (AWOL) alone
as cause for removal); and Weaver v. Department of the
Navy, 2 MSPB 297, 299 (1980) (deference due presiding
official’s findings of fact and credibility determinations).
+ eee
ae LT a rt
— 25a —
port of his contention. In Ruzek, however, we held that
the agency is obligated to offer rehabilitative assistance
only where the employee’s alcoholism affects his work
performance. Ruzek, swpra, at 311, 312. Here, appellant
has failed to show that his absence during the strike was
caused by alcohol-related problems. Rather, as the pre-
siding official correctly found, appellant’s stated reason
for failing to report for duty was alleged coercion. Thus
appellant has failed to show that he was entitled to an
opportunity for rehabilitation.
Oscar Taylor, James E. Simms, Glennetta Nicholas, and
Louis Hamer
These appellants, in support of their assertion of coer-
cion, contend that they were “particularly vulnerable” to
psychological pressure because of their race (black) and
their developmental (trainee) status in a white dominated
occupation. Appellants presented a psychologist, Dr.
Ralph Van Atta, who testified in support of that allega-
tion. Appellants, however, have not alleged that their
removals were based on racial discrimination. The Board
has specifically rejected allegations of “jeopardy to career
advancement” in Johnson v. Department of Transporta-
tion, MSPB Docket No. DC075281F0998 at 8-9 and n.13.
These appellants have failed to establish a defense of
coercion as contemplated in Johnson, supra, at 11-13. Ap-
pellants failed to show that they were victims of per-
sonal threats or other intimidating conduct “sufficient to
instill in [them] a reasonable fear of physical danger to
[themselves] or others, which a person of ordinary firm-
ness would not be expected to resist.” 7d. at 11-12. On
the contrary, appellants merely recounted rumors of
threatening and intimidating conduct directed at others,
see Andrews Tr. at 2362, 2437-2438, overheard threats
made in reference to others. see id. at 2505-06, and indi-
rect threats relating to career development, see id. at 2309,
2505-06, 2491. Thus, appellants failed to successfully rebut
the ageney’s prima facie case of strike participation.
—_
Anthony Tomasi
The record shows that this appellant’s deadline for re-
turning to work was August 8, 1981. On August 7, 1981,
appellant was informed by his supervisor that he would
be permitted to return to work if he appeared for his
deadline shift on August 8. However, on August 7, sub-
sequent to the discussion with his supervisor, appellant
received the agency’s notice of his proposed removal
dated August 6, 1981. The presiding official did not con-
sider the possible harmful effect of the agency’s proce-
dural error in prematurely issuing the proposal notice.
See Bangerter v. Departmen: of Transportation, MSPB
Docket No. SLO75281F0279 at 38 (September 27, 1983).
The presiding official found appellant’s receipt of the pro-
posal notice prior to his deadline “not controlling” since
appellant failed to show that, even if he had notified the
agency of the error, he would not have been permitted to
return. See Anderson, Initial Decision at 26.*
Appellant testified that, upon his receipt of the pro-
posal notice, he believed that he would not have been per-
mitted to return to work since he was aware that other
controllers who received similar notices were not allowed
to return. Tr. at 528. Appellant also testified that he
would have returned to work for his August 8, deadline
had he not received the notice of proposed removal. Tr.
at 504. Under these circumstances, we find that appellant
established that the agency’s premature issuance of the
proposal notice constituted harmful procedural error. See
Bangerter, supra, at 39. Therefore, the agency action re-
moving appellant Tomasi is not sustained.
Further, appellants contend that they were erroneously
suspended by the agency during the notice period. In the
Andrews and Anderson consolidated initial decisions, the
*The presiding official also rejected appellant’s claim
that his failure to report for duty at his deadline shift
was based on coercion. In view of our disposition of this
appellant’s case, it is not necessary to address this issue.
— (on
presiding official found that the agency had constructively
suspended those appellants and, in effecting their suspen-
sions, had committed procedural error. However, she de-
termined that the appellants had not shown harmful error.
Because we find that the presiding official erred in finding
improper suspension, we hereby REOPEN the petitions
for review filed by the appellants covered by those deci-
sions to address this issue. 5 C.F.R. § 1201.117.*
In Andrews, the presiding official based her finding of
erroneous suspension on testimony by the chief of the
agency’s facility and on the agency’s General Notice
(GENOT) 1/128. The chief of the facility testified that
striking controllers would not have been afforded an un-
conditional right to return to work during the notice pe-
riod and that whether or not they would have been al-
lowed to return depended on their stated reason for re-
turning and on the merits of their individual cases.
Andrews, Tr. at 215-16. Since the testimony indicated
that some controllers might have been permitted to re-
turn, we find that the presiding official inaccurately inter-
preted this testimony.
As to GENOT 1/128, upon which the presiding official
also relied in her initial decision rendered in the Anderson
consolidated initial decision, that notice simply stated that
* Additionally, the appellants in the Andrews consolli-
dated petition for review allege that Presiding Official
Krueger lacked “that degree of experience required by”
5 U.S.C. § 7701(b) to hear their removal cases. Appellants
have submitted no evidence in support of their assertion.
Thus, we find no merit to appellants’ allegation.
Also, appellant DeMar has requested an oral presenta-
tion before the Board. The record shows that this appel-
lant was afforded a full evidentiary hearing before the
presiding official, was represented by counsel, and testified
in his own behalf. Further, appellant has failed to state
a basis warranting the granting of his request. There-
fore, appellant’s request for an oral presentation before
the Board is denied.
— 28a — :
appellants who failed to return to work by their deadline
shifts would be placed in a non-duty status and subse-
quently removed. There was nothing in that notice to
prevent the agency from placing in a non-duty with pay
status an employee who indicated his desire to return to
work after his deadline shift. Here, the burden was on
appellants to show by preponderant evidence that they
were ready, willing, and able to return to work during
the notice period, that they contacted an agency official
with decision-making authority and unequivocally com-
municated their availability and desire to return to work,
and that they were nevertheless refused readmission by
the agency. See Martel, supra, at 11. None of the appel-
lants covered in those consolidated initial decisions has
thus shown. Therefore, we find that they were not sus-
pended.*®
Accordingly, the initial decision in Anderson is RE-
VERSED with respect to appellant Anthony P. Tomasi
and, as MODIFIED in this Opinion and Order, is AF-
FIRMED with respect to appellant David C. Anderson.
The initial decision in Andrews, as MODIFIED in this
Opinion and Order, is hereby AFFIRMED. The initial
decision in Lissak is hereby AFFIRMED.
The agency is hereby ORDERED to cancel its removal
action against appellant Tomasi and reinstate him to his
position of Air Traffic Controller Specialist. Proof of
compliance with this Order shall be submitted by the
agency to the Office of the Secretary of the Board within
20 days of the date of issuance of this Opinion. Any peti-
tion for enforcement of this Order shall be made to the
*In the Lissak consolidated initial decision, the presid-
ing official, relying on 5 C.F.R. §§ 1201.22 and 24, found
the suspension issue untimely on the basis that those ap-
pellants failed to file, within 20 days of the alleged sus-
pension, an appeal stating the nature of that action. Our
review of the record shows that those appellants also
failed to meet the Martel standard for constructive sus-
pension
= aan Shem teat
—_— Po
Chicago Regional Office in accordance with 5 C.F.R.
§ 1201.181(a).
This is the final order of the Merit Systems Protection
Board in these appeals. 5 C.F.R. § 1201.113(c).
Each appellant is hereby notified of the right under 5
U.S.C. § 7703 to seek judicial review of the Board’s action
by filing a petition for review in the United States Court
of Appeals for the Federal Cireuit, 717 Madison Place,
N.W., Washington, D.C. 20489. The petition for judicial
review must be received by the court no later than thirty
(30) days after the appellant’s receipt of this order.
FOR THE BOARD:
/s/ Robert E. Taylor
Robert E. Taylor
Secretary
NOV 28 1983
(Date)
Washington, D.C.
Attachment: Statement of the Board’s policy on service
of its opinions and orders.
— 30a —
Unitep States Or AMERICA
Merit Systems Protection Boarp
CuHarues F. BEHENSKY, JR., et al.,
Ricuarp J. Branopis, et al.’
Vv.
DEPARTMENT Or TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
DOCKET NUMBERS (CH075281F0979REM
CH075281 F1066
Date: JUL 5 1985
BEFORE
Hersert EK. Eviincwoop, Chairman
Maria Iu. Jonnson, Vice Chair
Dennis M. Deanry, Member
OPINION AND ORDER
INTRODUCTION
This case is before the Board on the appellants’ peti-
tions for review of the presiding official’s remand deci-
sion dated December 17, 1984, made pursuant to the
Board’s instructions for further findings on the creation,
reliability and trustworthiness of certain records relied
upon by the agency in taking adverse actions against the
appellants herein.
* Although a separate petition for review of the remand
initial decision, dated December 17, 1984, was filed by each
group of “appellants, this case is being consolidated due
to the similarity of issues and situations.
The appellants’ Motion for Sanctions and to Strike
Respondent’s Opposition Brief to petition for review is
hereby DENIED; and the agency’s Motion for Recon-
sideration is hereby DENIED.
a
— 3la —
BACKGROUND
The appellants previously appealed the agency action
removing them from their positions of Air Traffic Con-
trol Specialists at the Chicago Air Traffic Control Center
in Aurora, Illinois (ZAU) based upon charges of partici-
pating in a strike against the United States Government
in violation of 5 U.S.C. § 7311 and 18 U.S.C. 4 1918, and
unauthorized absence (AWOL).
In their original appeals, the appellants argued that
the sign-in logs contained in their appeal files contain
discrepancies? when compared against the “original” logs
(identified as Appellants’ Group Exhibit #16); that the
agency had “doctored” the sign-in logs in the appeal file
in order to support the removal actions taken against the
appellants (Initial Hearing Transcript (IHT) Vol. I. p.
114); and that no other evidence was presented as to
when, if ever, the sign-in logs were changed, who changed
them, or for what purpose they were changed.’ Despite
the fact that the logs, in some instances, contained altera-
tions and succeeding entries,‘ the presiding official found
? An example given of such discrepancy was the chang-
ing of an original notation of annual leave (AL) to
AWOL.
* During the initial hearing in these cases, the agency
sought to have Mr. Robert Miller, Personnel Management
Specialist, testify concerning the apparent changes in the
logs. The presiding official sustained an objection by
appellants’ counsel to Mr. Miller’s testimony based upon
his previous order that all witnesses, other than the appel-
lants, be sequestered during the hearing. Mr. Miller had
been present during the hearing as a technical advisor to
the agency. IHT Vol. VI, pp. 79, 80, 83. The presiding offi-
cial also sustained appellants’ objections to permitting the
record to remain open for additional agency witnesses,
other than Mr. Miller, to testify concerning this issue.
*The agency admitted through counsel that the agency
had updated the logs to reflect actual absenteeism. IHT
VI, at 81
— 32a —
in his original initial decision that the agency established,
through testimony of George Gunter, Facility Chief, that
the logs were created in conjunction with the operations
of ZAU and were properly relied upon in managing ‘its
work force. See United States v. Foster, 711 F.2d 871, 882
(9th Cir. 1983); United States v. McPartland, 595 F.2d
1321, 1348-1349 (10th Cir. 1979); Peter Kewit Sons Co. v.
Summit Construction Co., 422 F.2d 242, 268 (8th Cir.
1969). He went on to sustain the removal actions taken
against the appellants. The appellants petitioned for
review.
In its decision on appellants’ petition for review of the
original initial decision, the Board determined that three
documents in each appeal file were of central importance
to proving strike participation and AWOL: 1) the watch
schedules; 2) the personnel sign-in logs, and 3) the time
and attendance records ((T&A records). The Board con-
cluded that since the agency did not in every instance
prepare these records in the usual course of business, but
rather under unusual circumstances and with some in-
accuracies, further evidence and analysis were necessary
to determine whether the records were sufficiently reliable
to establish strike participation by the appellants. The
case was, therefore, remanded to the presiding official for
further adjudication with a suggestion that he consider
the need for eyewitness testimony explaining the process
by which the records were created.
INITIAL DECISION AFTER REMAND
At the remand hearing, the agency presented lengthy
testimony of Robert Miller, who was the Facility Evalua-
tions Officer for ZAU at the time of the strike. Over
a period of several days, Mr. Miiler testified as to the
practices and procedures followed in the preparation
and use of the documents in issue. He also described the
operation of the data collection center, commonly referred
to as the “war room”, a control work area set up during
oN nui <snanoel cS
ts raentniti
epost orate Vo tein ite tee
— 33a —
the second week of the strike to deal with administrative
paperwork associated with the removal actions, oral re-
plies, and the initial hearing. Remand Hearing Transcript
(RHT) at 110-111.
Mr. Miller also testified concerning the differences
between the documents contained in the appeal files and
those submitted by appellants. He stated that any differ-
ences between the two sets of schedules were due to the
fact that the copies in the adverse action files were made
while the schedules were still operational, and that sub-
sequent changes on the original schedules were made
while “working” controllers were handling the increased
workload occasioned by the strike. None of the appellants
testified at the hearing, nor did they specifically state,
either orally or in writing, that they were in fact either
on duty or on approved leave or not scheduled to work
at the time(s) the documents indicated they were absent.
The presiding official found that a close examination of
the documents reveals that no changes had been made
to any appellant’s scheduled shifts during the applicable
period.” Based upon the further testimony of Mr. Miller
and the other facility supervisors® regarding the. pro-
cedures for posting and amending the watch schedules
(RHT, 119), and the consistency of the documents, the
presiding official concluded that the watch schedules were
reliable, and, in the absence of any specific challenge by
any of the appellants, accurately reflected the shift assign-
ments for the appellants during the period in question.
‘This is the period beginning with August 3, 1981 and
continuing through the date of each appellant’s “dead-
line” shift (the first scheduled shift after 11:00 a.m. on
August 5, 1985).
°The agency also presented the testimony of several
area supervisors who testified regarding the preparation
and use of the documents in general, and specifically iden-
tified the sign-in logs prepared by them.
—
With regard to the sign-in logs, appellants pointed to
differences between the origina! logs (Appellants’ Joint
Ex. 9) and the copies contained in the adverse action files.
The presiding official found that during the applicable
period, however, such differences appeared with respect
to only three of the appellants, Nelson, Lockhart and
Schultz. RHT at 78. In each of these instances, the appel-
lant’s name had been added to a sign-in log by an em-
ployee working in the data collection center. This was done
because the employee’s name had been inadvertently
omitted from the sign-in log for a shift to which he was
assigned under the watch schedule. Remand Initial Deci-
sion (RID) at 5. The presiding official concluded that the
presence or absence of an employee’s name on a sign-in
log, whether subsequently added or not, was not as sig-
nificant as the presence or absence of the employee’s
signature on the document. He therefore found that in-
asmuch as none of the appellants’ signatures appeared on
the sign-in logs, the agency’s addition of their names to
the logs (obviously to show that the appellants were, at
best, scheduled to work)’ did not prejudice these appel-
lants. The presiding official also found based upon testi-
mony by the supervisors and his own examination, that
an “inherent probability of trustworthiness” existed in
these logs. RID at 5.
With regard to the T&A’s, the record revealed that the
vast majority of the amendments to those reports were
in reference to the pay periods subsequent to an appel-
lant’s deadline shift. As the presiding official found, such
7 Mr. Miller stated that the most common “mistakes” on
sign-in logs were created by shift swaps when an entire
crew on a watch schedule is listed on one shift and a con-
troller changes off that shift. Therefore, when putting
down names from the watch schedule to the sign-in logs
one might miss the shift swap of an individual and inad-
vertently list him on the wrong shift “. .. that was a com-
mon mistake.” RHT.
BL OAL Ania OREO A, cnet RT ae at aio) er a
— 35a —
changes are essentially irrelevant. RID at 5. As to the
reports which covered the applicable period (August 3-5,
1981), the presiding official concluded that such changes,
and T&A amendments in general, are not uncommon in
the Federal sector and that the amended T&A reports
accurately reflected each appellant’s status during the
applicable period. RID at 5. He also found no ‘evidence
of fraud, forgery or misrepresentations on the part of
the agency, nor any persuasive evidence that any agency
official perjured himself, attempted to “make” or “rig”
a case against an appellant, o1 otherwise committed any
act which might be considered fraudulent. RID at 6. Given
the totality of circumstances, the presiding official con-
cluded that the agency’s documentary evidence was, in
fact, reliable; that each of the appellants was absent with-
out authorization (AWOL) on one or more days during
the strike; that each appellant failed to report for his/her
deadline shift; that the agency established a prima facie
ease of strike participation with respect to each appel-
lant; and that none of the appellants presented persuasive
evidence to rebut the agency’s prima facie case. The pre-
siding official, therefore, held that the charges against the
appellants were supported by the preponderance of the
evidence, and sustained each appellant’s removal. RID at
8.
PETITION FOR REVIEW OF REMAND INITIAL
DECISION
The appellants have now filed timely petitions for re-
view of the presiding official’s remand initial decision.
They contend, inter alia, that the presiding official erred
in permitting Mr. Miller to testify at the remand hearing
as to the circumstances surrounding the creation of the
agency documents since he had previously, at the initial
hearing, denied the agency request to call him as a wit-
ness because he had not been sequestered as were other
witnesses, and that the presiding official’s decision per-
mitting him to testify was, therefore, a violation of Rule
— 36a —
615 of the Federal Rules of Evidence. Appellants also
contend that the agency destroyed the original watch
schedules and swap books; that the presiding official erred
in his credibility assessment of agency witnesses; and that
the presiding official was biased and prejudiced. These
contentions are without merit.
In reference to appellants’ contention that the pre-
siding official erred in permitting Mr. Miller to testify
at the remand hearing, the record reveals that the pre-
siding official allowed Miller to testify because: (1) the
agency’s failure to sequester him did not constitute a will-
ful or intentional violation of the sequestration order;
(2) under the third exception of Rule 615 of the Federal
Rules of Evidence, Miller was “a person whose presence
is shown by a party te be essential to the presentation of
his case”; and (3) there was not a likelihood that Miller’s
testimony would be shaped in a manner prejudicial to the
appellants by virtue of his having heard the testimony
of the other witnesses. (Notice of Hearing and Order,
Remand File, Tab 19.) The Board finds the presiding
official’s stated reasons to be reasonable and can discern
no error or abuse of discretion on the part of the pre-
siding official in this regard. Appellants allege, in essence,
that since the presiding official ordered the witnesses at
the first hearing sequestered and Mr. Miller remained in
the hearing room during the proceedings, he should not
have been permitted to testify at the remand hearing.®
Since strict adherence to the Federal Rules of Evidence
is not mandatory in administrative proceedings, this con-
tention must also be rejected. See, e.g., Davies v. Depart-
ment of Agriculture, 5 MSPB 291 (1981). A perusal of
the specific language of Rule 615 makes it clear, however,
that even under a strict application of the rules of evi-
* At the initial hearing the presiding official excluded
Mr. Miller’s testimony, but on remand, permitted Mr.
Miller to testify.
< aeoar ch se Te
— 37a —
dence, the exclusionary rule does not authorize the exclu-
sion of a person whose presence is shown by a party to be
essential to the presentation of his case. In re United
States, 584 F.2d 666 (5th Cir. 1978). A review of the rec-
ord in this case discloses that Mr. Miller’s presence in the
hearing would have been appropriate under this ex-
ception.
Additionally, in a case somewhat similar to the instant
case, the United States Court of Appeals for the Fifth
Circuit concluded that the district court did not err when
it permitted the government to use a postal inspector as
its final witness after he had been permitted to remain
in the courtroom to assist the prosecutor during the testi-
mony of other witnesses. The court opined that the dis-
trict court did not abuse its discretion in permitting the
inspector’s testimony which principally related to matters
peculiarly within his personal knowledge. United States
v. Nixw, 601 F.2d 214 (5th Cir. 1979).
It was, therefore, appropriate for the presiding official,
in order to assess the reliability of agency records, to de-
termine that eyewitness testimony was required to further
explain the process by which those records were created.
Notwithstanding the fact that Mr. Miller, who was the
agency’s technical representative, remained in the hearing
subsequent to a sequestration order at the initial hearing,
the presiding official determined, over appellants’ objec-
tions, that since Mr. Miller was in charge of the data col-
lection center where the administrative paperwork was
processed, he had firsthand knowledge of the entire
recordkeeping process and that his testimony at the re-
mand hearing was essential. The presiding official’s deci-
sion to permit Mr. Miller to testify under these cireum-
stances, despite his prior sequestration order, was not
an abuse of discretion. United States v. Bobo, 586 F.2d
355 (5th Cir. 1978); United States v. Johnston, 578 F.2d
1352 (10th Cir. 1978).
As to appellants’ contention that the agency destroyed
the original watch schedules and swap books, the pre-
— 38a —
siding official evaluated documents, weighed their proba-
tive value, and determined that any subsequent changes
on the watch schedules contained in the adverse action
files were made while working controllers were handling
the increased workload occasioned by the strike. The pre-
siding official found the documents reliable and an ac-
curate reflection of appellants’ shift assignments during
the period in issue. Borninkhof v. Department of Justice,
5 MSPB 150 (1981). In any event, a close examination
of these documents reveals that no changes were made
to any appellant’s scheduled shifts during the applicable
period of August 3, 1981 through August 5, 1981. The
Board finds no error in the presiding official’s evaluation
of the reliability of these documents.®
The appellants have also raised specific arguments re-
garding the removals of appellants Peacock and Reedy.
These arguments were considered and adequately ad-
dressed by the presiding official in his original initial de-
cision. These arguments represent mere disagreement
with the presiding official’s finding of fact. Since we find
no error in the presiding official’s reasoning with regard
to these issues, we decline to disturb his findings. See
Weaver v. Department of the Navy, 2 MSPB 297 (1980) ;
see also Anderson v. Department of Transportation,
MSPB Docket No. SL075281F0347 (April 25, 1983), aff’d.
735 F.2d 537 (Fed. Cir. 1984) (employee’s obligation to
contact the agency for clarification when confused about
returning to work); Martel v. Department of Transpor-
tation, MSPB Docket No. BN0O75281F0558 (April 25,
*As the Board has previously noted, while the “best
evidence” rule has some applicability in Board proceed-
ings, the real issue is whether the record contains ade-
quate, competent and reliable evidence to support the
agency’s charges. See e.g. Jones v. Department of Agricul-
ture, MSPB Docket No. CH07528110391 (January 23,
1984); Natividad v. Department of Agriculture, 5 MSPB
426 (1981).
LSS ACN A GIA MA A SCAMS UN ti ra tad Oe Nie Rall one eagles” Was suis sariuiens a
md deeb age AMO
— 39a —
1983) aff'd. 735 F.2d 504 (Fed. Cir. 1984) (employee must
prove that he was “ready, willing and able” to report for
duty and had so advised the agency).
As to the remaining matters raised by appellants in
their petitions for review, the Board has previously re-
solved those issues in: Stone v. Office of Personnel Man-
agement, 5 MSPB 142-43 (1981) (ruling on motions and
the imposition of sanctions is a matter for the presiding
official’s sound discretion); Karapinka v. Department of
Energy, 6 MSPB 114, 115-16 (1981) (procedural error by
a presiding official); Prime v. U.S. Postal Service, 5
MSPB 110 (1981) (the mere fact that a presiding official
does not rule on motions or accept the assertions of an
appellant in the fashion an appellant would desire does
not constitute bias, prejudice or impropriety); Weaver
v. Department of the Navy, supra. (due deference is ac-
corded to the presiding official’s factual and credibility
assessment of witnesses); Book v. U.S. Postal Service, 6
MSPB 322 (1981), aff'd. 675 F.2d 158 (8th Cir. 1982) (a
presiding official is not precluded from drawing adverse
inferences when an appellant refuses to testify in re-
sponse to probative evidence against him); Desiderto v.
Department of the Navy, 4 MSPB 171 (1980) (AWOL
alone is cause for removal); Schapansky v. Department
of Transportation, 12 MSPB 141 (1982) aff'd. 735 F.2d
477 (Fed. Cir. 1984) (prima facie case of strike participa-
tion and reasonableness of removal penalty).
Accordingly, having fully considered the appellants
petitions for review of the presiding official’s remand ini-
tial decision issued on December 17, 1984, and finding that
they fail to meet the criteria under 5 C.F.R. § 1201.115,
the Board hereby DENIES the petitions.
This is the final order of the Merit Systems Protection
Board in these appeals.’® 5 C.F.R. § 1201.113. The remand
b
1° Appellants affected by this decision are listed in the
attached Appendix A.
—_—
initial decision shall become final five (5) days from the
date of this order.
Each appellant is hereby notified of the right under 5
U.S.C. § 7703 to seek judicial review, if the court has jur-
isdiction, of the Board’s action by filing a petition for
review in the United States Court of Appeals for the Fed-
eral Circuit, 717 Madison Place, N.W., Washington, D.C.
20439. The petition for judicial review must be received
by the court no later than thirty (30) days after receipt
of this order.
FOR THE BOARD:
/s/ Mllegible
Robert E. Taylor
Clerk of the Board
Washington, D.C.
ates Naa hh lle Rented hea te) hb eta CE artnet
an le ail A mb date
ae be
— 41a —
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHICAGO REGIONAL OFFICE
IN THE MATTER OF:
Richard S. Delutri Decision Number: CH075281F1377
Robert A. Edwards Decision Number: CH075281F1454
Alan W. Gerbitz Decision Number: CH075281F1637
Ronald W. Gillette Decision Number: CH075281F1649
Michael S. Kline Deeision Number: CH075281F2076
Thomas J. MeNeal Decision Number: CH075281F2362
Raymon FE. Owens Decision Number: CH075281F2572
Dana J. Thomas Decision Number: CH075281F3108
v. Date: January 21, 1983
Department of Transportation
Federal Aviation Administration
INTRODUCTION
By petitions filed between September 5 and October 12,
1981, the above-named appellants appealed actions where-
by the Department of Transportation, Federal Aviation
Administration, Chicago Air Route Traffic Control Cen-
ter (ARTCC), Aurora, Illinois, removed them from their
positions as Air Traffic Control Specialists. Mr. Delutri
was removed effective September 9, 1981, Mr. Edwards
effective September 5, 1981, Mr. Gerbitz effective Septem-
ber 8, 1981, Mr. Gillette effective September 29, 1981, Mr.
Kline effective October 26, 1981, Mr. MeNeal effective
August 27, 1981, Mr. Owens effective September 14, 1981,
and Mr. Thomas effective September 19, 1981, Their ap-
peals, which were timely filed to the Board, were consoli-
dated by an Order entered on August 25, 1982. Each ap-
peliant seeks to have the removal action set aside.
JURISDICTION
The appellants, employees in the competitive service
who have completed more than one year of current con-
tinuous service in the same position, are entitled to appeal
a removal action to the Merit Systems Protection Board
—42a —
(Board). See 5 U.S.C. 7511(a)(1)(A), 7512, and 7513(d)
(1980); and 5 C.F.R. 752.401(a), .401(b) (1), and .405(a)
(1981).
ANALYSIS AND FINDINGS
In all of these cases, the appellants were advised of a
proposal to remove thein on the basis of two charges: (1)
violating 5 U.S.C. 7311 (1980), which bars government
employment for an individual who participates in a strike,
and 18 U.S.C. 1918 (1970) which makes participation in
a strike against the government a crime for which a sen-
tence of imprisonment can be imposed; and (2) unautho-
rized absence on specified dates during an ilegal strike.
The agency found in its decision notices that its charges
warranted removing the appellants from their positions.
When an employee appeals an adverse action to the
Board, the Board must review the action to determine
whether the underlying cause for the action actually oc-
curred, and if it did occur, the Board must next determine
whether the disciplinary action taken will promote the
efficiency of the service. See 5 U.S.C. 7701(c)(1)(B),
7513(a) (1980); 5 C.F.R. 1201.56(a) (1981). In addition,
the Board is required to review and consider any affirma-
tive defenses raised by an appellant which are based on
harmful procedural error, prohibited personnel practices
or violations of law. See 5 U.S.C. 7701(¢)(2) (1980); and
5 C.F.R. 1201.56(b) (1981).
Strike Participation Charge
With respect to the first charge, the agency must prove
by a preponderance of the evidence that a strike called by
the Professional Air Traffic Controllers Organization
(PATCQ) was in progress from August 3 through August
20, 1981, covering the dates these appellants were alleged-
ly on strike. The Board has taken official notice of the
fact that a strike by PATCO members against the Fed-
eral Government began on August 3, 1981, and continued
through August 6, 1981, and found that such strike was
illegal. Ketchem v. Department of Transportation, MSPB
— 43a —
Docket No.. DA0Q75281F0713 at 9 (May 28, 1982). Since
none of the appellants have, on appeal, refuted the exis-
tence of a strike during the period from August 3 thhrough
6, 1981, I find that a strike against the government by air
traffic controllers at appellants’ air traffic facility occurred
from August 3 through August 6, 1981.
Since I have not taken official notice of the existence of
a strike beyond August 6, 1981, the agency is responsible
for establishing, by a preponderance of the evidence, that
the strike continued following those dates. The appellant
in this consolidated group with the latest scheduled re-
porting date after August 3, 1981 is Michael Kline, and I
will determine if the strike continued through the date
that he was scheduled for duty. If it can be determined
that the strike lasted at least that long, then it necessarily
follows that each of the appellants was scheduled for duty
during the strike.
Appellant Kline was on annual leave at the time of the
strike, and his first regularly scheduled workday following
August 3, 1981 was on August 20, 1981. The appellants
argue that the strike was not continuing as of that date
since a great majority of controllers at the facility had
already been “locked out” of the facility when they failed
to appear for their first regularly scheduled shift on or
after 10:00 a.m. August 5, 1981,’ and that since they could
no longer report to work, they were no longer withholding
their services from the agency in a strike.
The classic definition of a strike is stated in the case
of United Federation of Postal Clerks v. Blount, 325 F.
Supp. 879, 884 (D.D.C.), aff'd, 404 U.S. 802 (1971), where
the court stated that the “essence” of striking “is (the)
actual refusal in concert with others to provide services
to one’s employer.” It is apparent that only a relatively
small number of air traffic controllers at the Aurora
ARTCC facility were due to report to work on or after
August 20, 1981 and failed to report as scheduled. It
* This is designated the “deadline shift”.
——
must be remembered, however, that the PATCO strike
was a nationwide strike, so the actual number of em-
ployees who could have returned to work at various air
traffic facilities on or after August 20, 1981 was undoubt-
edly much larger than the employees who could have re-
ported at the Aurora ARTCC. Appellant Kline’s alleged
refusal to return to work as scheduled, even though such
refusal may have been in concert with fewer employees
than those who were earlier scheduled for work, still may
be properly characterized as an action which was in con-
cert with others. . ..” Moreover, although the appellants
argue that agency officials declared the strike to be over,
the union itself had not declared the strike to be over on
or before August 20, 1981, and union members engaged
in strike-related activities, including picketing, well be-
yond August 20, 1981. (Tr: Vol. 1 p. 227). Accordingly,
I find that in view of the continuing failure of employees
to report for work and the other evidence of the continu-
ing strike, that a preponderance of the evidence estab-
lishes that the strike continued through at least August
20, 1981.
With respect to these appellants’ alleged participation
in the strike, the agency must first establish a prima facie
showing of participation. See Schapansky v. Depariment
of Transportation, Federal Aviation Administration, MS
PB Order No. DA075281F1130 (October 28, 1982); Jones
v. Tennessee Valley Authority, MSPB Order No. A'T0752-
8010300 (February 19, 1982); and Duckett, et al. v. Ten-
nessee Valley Authority, MSPB Order No. AT07528010325
(February 19, 1982).2 A prima facie showing is made
when the agency demonstrates: (1) a labor organization
called a strike at the facility where the employee worked;
and (2) the employee failed to appear for scheduled duty
while the strike was in progress.
* Jones and Duckett concern participation in an unau-
thorized work stoppage in violation of a labor agreement
and 5 U.S.C. 7311. I find the reasoning in these cases is
relevant to determining what constitutes a prima facie
showing of participation in a strike.
— 45a -—
The record evidence shows that the appellants were
members of the bargaining unit represented by PATCO,
the labor organization that called the strike in question,
by virtue of their positions as air traffic control specialists.
The evidence also shows that each of the appellants was
absent from duty on his deadline date. (Tr: Vol. 1, pp.
59-60; Vol. 1, pp. 153-4; Vol. 1 pp. 156-7; Vol. 1 pp. 63-4;
Vol. 1 pp. 220-3; Vol. 2 pp. 5, 7; Vol. 1 pp. 124-5; Vol. 2
67). Accordingly, I find that the agency has established
a prima facie showing that the appellants were partici-
pating in the PATCO strike on specified dates between
August 3 and August 20, 1981.
An appellant has the opportunity to refute the agency’s
prima facie showing that he participated in the strike by
demonstrating that he had no knowledge of the existence
of the strike or by establishing that his absence was due
to some factor other than intentional participation in the
strike. An absence of rebuttal evidence or the overriding
of rebuttal evidence by the agency would result in the
agency meeting its burden of proof with respect to par-
ticipation in the strike See Schapansky, at 6. I will now
discuss each appellant’s defense to the strike participa-
tion charge.
x * »
Richard Delutri
Appellant Delutri testified that he was unable to work
during the strike because he was ill. This appellant had a
chronic problem with his left shoulder, diagnosed as ten-
donitis,® and had received treatment for this condition for
over a vear prior to the strike. He testified that on Au-
gust 2, 1981, while playing golf, he hurt his shoulder. He
further testified that he was in such pain that he took
medication that contained codeine. This medication had
been prescribed for appellant Delutri in July 1981. (Tr:
Vol. 4 pp. 165-6).
5 After the close of the record, appellant Delutri sub-
mitted information that discloses that this problem has
recently been diagnosed as a high cervical intramedullary
spinal cord tumor.
—_—
The next day, August 3, appellant Delutri attempted
to contact his supervisor, William Plasch. The appellant
testified that he eventually spoke with someone at the
facility’s watch desk. This person told the appellant that
supervisor Plasch was unavailable and that sick leave was
not being approved. Delutri explained that he was taking
codeine and would not be able to work until Saturday,
August 8. Appellant Delutri testified further that he ex-
pected supervisor Plasch to be given this message and
that he would be put on sick leave. (Tr: Vol. 4, pp. 170-
1). The agency, which stipulated that it did not have a
log of all calls made on August 3 but that it did keep a
record of all significant calls made to it on that day, does
not have a record of this call. (Tr: Vol. 4, p. 188). The
appellant later on August 3 tried to reach Plasch at home,
and Plasch confirmed that he received a message on Au-
gust 5 or 6 that the appeliant had called but when he tried
to return the call, he was not able to reach the appellant.
(Tr: Vol. 4, p. 116). Since the agency had no record of
appellant’s Delutri’s request for leave, it issued his pro-
posed removal letter on August 5.°
This appellant testified that he called his doctor on
August 3 but that he was not able to get an appointment
until August 10. (Tr: Vol. 4, p. 173). This appointment
was later postponed by the doctor until August 17. His
doctor testified that he did not recall the appellant men-
tioning any information on August 17 regarding an epi-
sode of severe pain; but he did testify, from his records,
that the appellant was “... apparently getting along all
right... .” (Tr: Vol. 4, p. 147). The doctor’s notes also
indicate that the appellant told him on August 17 that
*The proposed removal letter charges appellant Delutri
with missing the 1:00 p.m. shift beginning on August 3,
1981. Since the proposal is dated August 5 and clearly
states he is charged with missing his shifts beginning
August 3 at 1:00 p.m. and continuing until the present, I
find that this proposal included his deadline shift on
August 5 at 1:00 p.m.
PO een a
a I ee ee ee
— 47a —
his shoulder was improved after the July 1981 treatment.
(Tr: Vol. 4, p. 140).
Chief Gunter testified concerning his policy for denying
all requests for sick leave during the strike. This appel-
lant contends that this policy violated the collective bar-
gaining agreement. Even assuming, for the sake of argu-
ment, that this policy did violate the collective bargain-
ing agreement, appellant Delutri has not demonstrated
that he ever requested leave from his supervisor, William
Plasch, or anyone else who had authority to authorize his
sick leave under normal circumstances.
I find that appellant Delutri has not rebutted the prima
facie case of strike participation. He has not demon-
strated that he ever effectively communicated his request
for sick leave to the agency. Because of the emergency
situation in existence and the fact that he was requesting
a number of days off, I find that this appellant should
have made further attempts to notify the agency of his
problem. Additionally, the evidence demonstrates that the
appellant did not see his doctor until August 17. I note
that I considered the results of a polygraph test given to
appellant Delutri. However, I gave this evidence little
weight in reaching my decision because the polygraph
eXaminer was not called as a witness and subjected tv
cross-examination, and there were certain ambiguities in
his report. See Meier v. Department of the Interior, 3
MSPB 341 (1980). Accordingly, I find that the agency
has supported its charge of strike participation by appel-
lant Delutri by a preponderance of the evidence.
ve * *
Unauthorized Absence Charge
As noted above, the second charge against each appel-
lant in the consolidated group is “absence without authori-
_ zation (leave)” (AWOL). Some appellants in this con-
solidated group were charged with AWOL only for the
day of their deadline shifts, while others were charged
with AWOL for the day of their deadline shifts as well
as days missed earlier in the strike.
— 48a —
The fact of the appellants’ absence and their AWOL
status during those days for which they were charged is
established by the documentary evidence submitted by the
agency and by chief Gunter’s testimony. However, a fur-
ther element of this charge, which the agency must also
establish by a preponderance of the evidence, is the pro-
priety of the agency’s action in denying the appellants
approved leave during the period of their absence. See
McDonough v. U. S. Postal Service, 4 MSPB 441 (1980).
As stated by the Board in the case of Giesler v. Depart-
ment of Transportation, 3 MSPB 367 (1980), an agency
clearly has the right to expect its employees to attend
their regularly scheduled tours of duty, “absent a valid
excuse”
Appellant McNeal has established, as analyzed in the
above discussion, a valid excuse for his absence, that is,
his sick leave was wrongfully denied. Appellants Kline
and Gillette have also established valid excuses for their
absence: they were on uncancelled annual leave and would
not have been permitted to return to work for their dead-
line shifts. I find, therefore, that with respect to these
three appellants. the agency has failed to establish, by a
preponderance of the evidence, the propriety of its action
in placing these appellants on AWOL status for the peri-
od charged. Hence, the AWOL charge for appellants
MeNeal, Kline and Gillette is dismissed and will be given
no further consideration in this decision.
Pay ee See ee ee ee
The remaining appellants in this consolidated group,
appellants Delutri, Edwards, Gerbitz, Owens, and Thomas
did not establish, as analyzed in the above discussion of
the strike charges, a “valid excuse” for their absences
from their regularly scheduled shifts. It should be noted,
with respect to appellant Thomas, that emergency annual
leave, unlike sick leave, is granted at the agency’s discre-
tion, and can be validly denied in the context of a strike.
(Appellant Delutri Exhibit 1, FAA/PATCO Collective
OE
— 49a —
Bargaining Agreement, Article 31, Section 2.) According-
ly, I find that the agency has established, by a preponder-
ance of the evidence, the propriety of its action in placing
each of these appellants in an AWOL status for the period
charged. Since the agency has supported each element of
its AWOL charge against each of these appellants by a
preponderance of the evidence, I find that the agency’s
second charge is sustained against appellants Delutri,
Edwards, Gerbitz, Owens, and Thomas.
Efficiency of the Service and Penalties
In addition to proving both charges against appellants
Delutri, Edwards, Gerbitz and Owens and its AWOL
charge against appellant Thomas, the agency must also
show that removing the appellants was for such cause
as will promote the efficiency of the service. The Board
has found that strike participation has a negative effect
on efficiency because such conduct impairs an employee’s
ability to accomplish his duties satisfactorily and the
agency’s ability to fulfill its mission. Schapansky, at 11-12.
The Board has also found that unauthorized absences
from duty constitute proper grounds for taking discipli-
nary action because such absences by their very nature
disrupt the efficiency of the service. Desiderio v. Depart-
ment of the Navy, 4 MSPB 171 (1980). Moreover, the evi-
dence here shows aggravated employee misconduct be-
cause large numbers of controllers were absent at the
Aurora ARTCC during the PATCO strike. Unauthorized
absences as part of a strike action constitute one of the
most disruptive types of absence employees can direct
toward their employer and clearly warrant disciplinary
action. I conclude that the sustained charges constituted
such cause for removal as will promote the efficiency of
the service with respect to appellants Delutri, Edwards,
Gerbitz and Owens and as I will discuss below not with
respect to appellant Thomas.
The scope of the Board’s review of the agency’s selec-
tion of a penalty was discussed in Douglas v. Veterans
— ee
Administration, MSPB Docket No. AT075299006 (April
10, 1981). After noting that a penalty should be selected
only after the relevant factors have been weighed, the
Board held that the purpose of its review is to ensure
that the agency conscientiously considered the relevant
factors, and in choosing the penalty, struck a responsible
balance within the limits of reasonableness.
With respect to appellant Thomas, against whom only
the AWOL charge was sustained, a very important factor
to consider under a Douglas analysis is the gravity of his
conduct. His absence during a period of crisis in the
agency was a serious breach of his relationship with the
agency and this misconduct warrants a severe penalty.
Notwithstanding this, appellant Thomas’ misconduct must
be excused to some extent by his concern for his seriously
ill father. Other positive factors that should be considered
are: the absence of any evidence of past disciplinary rec-
ord and the fact that the AWOL charge does not reflect
on the appellant’s ability to return to his job and perform
adequately. Suggested penalties for a first offense of
AWOL under normal circumstances range from a letter
of reprimand to a three-day suspension. However, appel-
lant Thomas’ absence during this emergency situation
justifies a more severe penalty than that suggested for
an unauthorized absence under normal conditions. Accord-
ingly, I find that the maximum reasonable penalty for
appellant Thomas is a 60-day suspension.
I have also reviewed whether appellants Delutri, Ed-
wards, Gerbitz and Owens are entitled to have their re-
movals mitigated to a lesser penalty in accordance with
Douglas. In these cases the most important factor is the
gravity of the appellants’ misconduct. Their absence in
the context of a strike destroyed their relationship of
trust with ihe agency. Factors such as length of service
and quality of past performance are not important here
because of the overriding factor of the gravity of this
conduct. Schapansky, at 11. Clearly, the penalty of re-
Hat A Hah ech RAIDS crete 8 Fd aD.
jeg eels
— 5la —
moval is within the tolerable limits of reasonableness
here. Accordingly, I will not disturb the removal penalty
with respect to appellants Delutri, Edwards, Gerbitz, and
Owens.
Affirmative Defenses
Notwithstanding my finding that the AWOL charge
against appellant Thomas and both charges against ap-
pellants Delutri, Edwards, Gerbitz, and Owens have been
sustained, it is necessary to evaluate various affirmative
defenses to the agency actions which have been raised
on appeal by these appellants since, by statute and regu-
lation, an agency action may not be sustained, even if
supported by the requisite burden of proof, if it was used
on harmful procedural error, a violation of law, or a pro-
hibited personel practice. 5 U:S.C. 7701(c)(2); 5 C.F.R.
1201.56(b). Appellants have the burden of establishing,
by a preponderance of the evidence, affirmative defenses
that they propound. James v. Department of the Navy,
MSPB Docket No. PH07528010141 (July 30, 1981).
The appellants raised several issues that I interpret
to be claims that the agency committed harmful pro-
cedural error” in processing their removal actions. Speci-
fically, the appellants claim that: (1) the agency im-
properly invoked the “crime provision” to shorten the
advance notice period for considering proposed adverse
actions; (2) the agency improperly placed the appellants
in a non-duty status pending the outcome of these actions;
(3) the agency’s offer of reply was an empty formality;
The Board’s regulations found at 5 C.F.R. 1201 define
harmful error as: “Error by the agency in the application
of its procedures which, in the absence or cure of the
error, might have caused the agency to reach a conclusion
different than the one reached. The burden is upon the
appellant to show that based upon the record as a whole
the error was harmful, i.€.5 caused substantial harm or
prejudice to his/her rights.”
— 52a —
(4) their cases were prejudged by virtue of government
officials’ prior orders to remove them; and (5) the agen-
cy’s language in the letter of proposed removal regarding
possible decertification of PATCO wrongfully foreclosed
the appellants’ use of the grievance procedure.
The Board has considered the agency’s reliance on the
crime provision of 5 U.S.C. 7513(b) (1980)** to shorten
the 30-day period of advance written notice or adverse
action in these cases. Schapansky, at 7-8. The Board
found that the agency reasonably invoked the crime pro-
vision to shorten the notice period in a case comparable
to the cases in question because 18 U.S.C. 1918 (1970)
provides that participation in a strike against the United
States is a felony, punishable by up to one year of im-
prisonment, and because the agency had reasonable
cause to believe an employee who did not report for
scheduled duty during a strike was participating in the
strike. Accordingly, based upon this reasoning, I find that
the agency reasonably invoked the crime provision in
these cases. The appellants have failed to prove any error
in this regard and, therefore, this allegation has no merit.
The appellants also alleged that they were improperly
placed in a non-duty status as of the date of their letters
of proposed removal. They also contend the agency’s de-
nial of their requests for 16 hours of official time to pre-
pare their defenses was harmful. However, I find that
even if the agency had carried these appellants in a duty
status and granted them official time to prepare defenses,
* That statutory provision reads, in pertinent part, as
follows:
An employee against whom an action is proposed is
entitled to... at least 30 days’ advance written notice,
unless there is reasonable cause to believe the em-
ployee has committed a crime for which a sentence
of imprisonment may be imposed, stating the specific
reasons for the proposed action. . .
5 U.S.C. 7513(b).
ene
— 53a —
there is no reason to believe that the agency would have
reached a different conclusion in these cases. Therefore,
I find this claim of harmful error to be without merit.
The appellants next allege that the agency’s offer of
an oral reply was an empty formality because they were
denied extensions of time to reply, they were not provided
with meaningful responses to their requests for clarifica-
tion of the agency’s charges and copies of the documents
the agency relied on in reaching its decision, and they
were allowed to review this documentation for the first
time at the oral reply. My review of the record finds no
basis for determining the agency erred in its handling
of the reply process. The appellants have not shown that
had they been granted more time for response, additional
materials to review or additional time to review docu-
mentation, they would have presented replies that could
have changed the outcome of the agency’s actions. Nor
have the appellants shown that they have since been able
to obtain facts not in their possession at their oral replies
that can help them explain their failure to report for
scheduled duty during the strike.
Additionally the appellants assert that the oral reply
itself was a sham because the oral reply, officials had re-
ceived no training for this role, had no authority to grant
continuances, and had no authority to make final decisions
or to recommend final decisions. I find no harmful error
in the way the oral replies were conducted. A trial-type
hearing is not contemplated by 5 U.S.C. 7513(e) (1980)
which provides for an oral reply. See Arnett v. Kennedy,
416 U. S. 134 (1974). The purpose of the oral reply is to
give the employee an opportunity to respond to the charge,
and I find that these appellants were given this oppor-
tunity. It is undisputed that the oral reply officials did
not have final decision-making authority; however, they
did make recommendations for “further agency discus-
sion” of individual cases if they felt the facts obtained
at the reply warranted this and these recommendations
——
were considered in the final decisions. Clearly the oral
replies were handled in an expedited fashion because of
the large numbers involved, but I find no harmful error
concerning the oral reply process.
The appellants also claimed that their cases were pre-
judged by virtue of government officials’ prior orders to
remove them. My review of the record finds no persua-
sive evidence that the removal actions in these cases were
prejudged. The appellants presented no evidence that
President Reagan or other Washington officials directed
their individual removals. On the other hand, chief Gunter
repeatedly testified that he made the decision in each of
the cases in question. The chief used standardized letters
due to the large number of removals. The memoranda
issued by the agency’s national and regional offices*® were
guidelines and not directives. These guidelines set forth
factors the chief was to weigh and gave him the authority
to judge credibility. He was to exercise sound manage-
ment discretion. Accordingly, I find that the decisions in
these cases were not prejudged and this allegation cannot
be sustained.
Finally, appellants argue that the agency’s notice of
decision to remove impermissibly chilled or misled them
concerning their exercise of union rights by qualifying
their access to the negotiated grievance procedure. The
letter stated in relevant part:
If ... you believe this action violates Article 69 and
you choose to file a grievance, you must submit a
written grievance to me... no later than 15 calendar
days after the effective date of the removal.
In this connection, you should know that the FAA
has filed an Unfair Labor Practice (ULP) charge
against PATCO for its role in the strike and is seek-
ing to have the union decertified. The case is now
being processed by the Authority and determination
* B.g., GENOT 141.
TT eae
— 55a —
that PATCO committed a ULP could impact on the
processing of grievances under the PATCO/FAA
agreement if the Union is decertified and the agree-
ment terminated this avenue of appeal may not be
available to you.
While the language of the notice goes beyond merely
informing appellants of the existence of the contract
machinery for attempted resolution of their appeals, I
do not find the language to be either misleading or chill-
ing. To the contrary it accurately describes the state of
affairs existent during August 1981. Indeed the implica-
tions of decertification of the union suggested in the
notice ultimately bore fruit. Professional Air Traffic Con-
trollers Organization and Federal Aviation Administra-
tion, 7 FLRA No. 10 (1981). PATCO v. Federal Labor
Relations Authority, 685 F.2d 547 (D.C.C. 1982). The ap-
pellants claim that in the event of decertification, their
grievances would have survived because equity can pro-
vide a trustee, receiver, or successor union to assume its
duties and protect the vested rights of its members.
Furthermore, many of the appellants testified that but for
the language quoted above, they would have filed griev-
ances because they believed that would have been a
speedier process. I find both of these contentions to be
speculative and since I have found the language of the
letter to be accurate, I find no error here.
Conclusion
In conclusion, I have found that the agency supported
its removal action against appellants Delutri, Edwards,
Gerbitz, and Owens by a preponderance of the evidence,
and that their removals are for such cause as will promote
the efficiency of the service. Since I have found that the
appellants’ affirmative defenses are without merit, I find
that their removals must be sustained.
I have further found that with respect to appellant
Thomas, only the unauthorized absence charge is sup-
ported and sustained by a preponderance of the evidence.
— 56a —
His removal for this charge will not promote the efficiency
of the service, and I found that the maximum reasonable
penalty here is a 60-day suspension. Appellant Thomas
also did not meet his burden of proof with respect to his
allegations of harmful error.
Finally, I have found that the agency has not supported
and sustained its charges against appellants Gillette,
Kline, and McNeal.
DECISION
The removal actions concerning appellants Detuisi, Kd-
wards, Gerbitz and Owens are affirmed. The removal of
appellants Gillette, Kline, and McNeal is reversed. The
removal of appellant Thomas is reversed and the agency
is ordered to cancel the removal action and substitute in
its place a sixty (60) day suspension. The agency is or-
dered to furnish to the Chicago Regional Office not less
than ten (10) days after this decision becomes final, ap-
propriate documentation that the corrective actions con-
cerning appellants Gillette, Kline, MeNeal and Thomas
have been taken.
This decision is an initial decision and will become a
final decision of the Merit Systems Protection Board on
February 25, 1983 unless a petition for review is filed
with the Board or the Board reopens the case on its own
motion.
Any party to this appeal or the Director of the Office
of Personnel Management may file a petition for review
of this decision with the Merit Systems Protection Board.
The petition must identify specifically the exception taken
to this decision, cite the basis for the exception, and refer
to applicable laws, rules, or regulations.
The petition for review must be filed with the Secretary
to the Merit Systems Protection Board, 1120 Vermont
Avenue, N. W., Washington, D.C. 20419, no later than
thirty-five (35) calendar days after the issuance of the
initial decision, cite the basis for the exception, and refer
to applicable laws, rules, or regulations.
— 57a —
The Board may grant a petition for review when a
party submits written argument and supporting docu-
mentation which tend to show that:
(1) New and material evidence is available that, de-
spite due diligence, was not available when the
record was closed; or
(2) The decision of the presiding official is based on an
erroneous interpretation of statute or regulation.
Pursuant to 5 U.S.C. Section 7703(b)(1), (as modified
by Section 127 of the Federal Court Improvement Act of
1982, to be codified at 28 U.S.C. Section 1295(a)(9)) the
appellant has the right to seek judicial review of the
Board’s final decision on this appeal. A petition request-
ing such review must be filed with the U.S. Court of Ap-
peals for the Federal Circuit, 717 Madison Place, N.W.,
Washington, D.C. 20005, no later than 30 days after ap-
pellant’s receipt of the Board’s final order or decision.
Any party seeking enforcement of a final decision of
the Board may file a petition for enforcement with the
regional office that rendered the initial decision. Such
petition should be directed to the Regional Director and
must comply with the requirements of 5 C.F.R. 1201.181
(d).
For the Board:
/s/ Judith Krueger
Judith Krueger
Presiding Official
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.