Petition for Writ of Certiorari — Bergh v. Department of Transportation

SEP 20 1986

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IN THE |

| 10 ANIOL, JRe

SUPREME COURT OF THE UNITED

TATES “~~”

—_—_—-—

OCTOBER TERM, 1986

P.M. BERGH, et al.,

Petitioners,

vs.

DEPARTMENT OF TRANSPORTATION, FAA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Samuel J. Imperati

James S. Coon

IMPERATI, BARNETT,

SHERWOOD & COON, P.C.

135 S.W. Ash, Suite 600

Portland, OR 97204

(503) 221-0077

Paul Drachler

GIBBS, DOUGLAS, THEILER

& DRACHLER

1613 Smith Tower

Seattle, WA 98104

(206) 623-0900

i

QUESTIONS PRESENTED FOR REVIEW

Whether by "settling" the appeals

of certain air traffic controllers fired for

striking the government may reinstate such

employees without giving reasons, thus

avoiding the Merit Systems rules which

require equal treatment of disciplined

employees.

II. Whether a federal court of appeals

may rely on an "explanation" in an appellate

brief in lieu of evidence to carry an

agency's burden of proof.

III. Whether discipline imposed by an

agency under the impression that such

discipline was required by 5 USC § 7311 may

be upheld on the ground that such discipline

was within the discretion of the agency to

impose, though the agency never exercised its

discretion. Whether 5 USC § 7311 requires

discharge of any government employee found to

have participated in a strike.

ESO EUG BAY MAREE LN MS AS ON TL YAGI, HN YS Ea ERG AEF MY Wal PUR SUA, 5

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ii

TABLE OF CONTENTS

Page

OPINIONS BELOW. ......-..-.-+---. l

pueescenes.. ...05 5 « 3 eee 2 |

STATUTES INVOLVED ..........-. 3

STATEMENT OF THE CASE ........--:; 4

REASONS FOR GRANTING THE WRIT . . . 12

The Circuit Court's decision

destroys the rule of equal

treatment for government

employees, therefore deciding

an issue which has not been

but should be directly decided

by this Court. . . 12

The Court of Appeals has SO far

departed from the accepted and

usual course of judicial

proceedings that its decision

should be reversed. .. . 18

The Court of Appeals has decided a

federal question in a way in

conflict with app'ticable

decisions of this Cou a ta 22

CONCLUSION ....+-e«+«2# ese © © © @ * 26

APPENDIX INDEX x * > ° ° » e ° ° . . . ” A-1L

vs ATS ads AE DU OD ER CT WE EA OY a OT Ved ett a ta ay

iii

TABLE OF AUTHORITIES

Page

Cases

Bergh vs. Department of Transportation,

7e8 see L575, id77 (Peg. Cir.

1986)

» We 20, ib, 14, 15, 19, 20, 23

Douglas vs. Veteran's Administration,

5 MSPR 280, 306-07 (1981)

. o . 7 . ~ . 16, 17, 19, 20

Herbert vs. FAA,

a? meen Oa, 70 (1983) . .« « « « « 8, 14

Moseley vs. United States Postal

Service,

No. 86-815, (Fed. Cir. August 28,

ts sis es a «© « « «© «© « » « A

Schapansky vs. Department of

Transportation,

13 MSPR SD (1982) a a ae — 8

tae wsee G7? (Ped. Cir.) cert.

denied, 105 S.Ct. 432 (1984)

” + & . 7 ° 7 ~ . ° . - e ° Bas 24

Securities Exchange Commission vs.

Chenery Corp.,

332 US 194, 67 S.Ct. 1575 (1946) 22, 24

iv

TABLE OF AUTHORITIES

(continued)

Page

Statutes

> USC €@ 2301 . » es se ws we we ee ew 3, is

5 USC g§ 7311 . 6, TF, Oy Ale 13> B32 @44 22

S uéc 6 7513 (@) 2. 6 6 es we © ee eH 12

Sale 7768 . ka ee we 4, 42, 19, 25

O06 8C 6 1954 (hh 6 ee tt 2

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

P.M. BERGH, et al.,

Petitioners,

vs.

DEPARTMENT OF TRANSPORTATION, FAA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Petitioner respectfully prays that a

Writ of Certiorari issued to review the

decision of the United States Court of

Appeals for the Federal Circuit dated July 2,

1986.

OPINIONS BELOW

The United States Court of Appeals for

2

the Federal Circuit affirmed the decision of

the Merit Systems Protection Board (MSPB) in

these consolidated air traffic controller

appeals. The MSPB decisions in these cases

affirmed some of the decisions rendered by

various presiding officials in the Pacific

Northwest and reversed others, with the

result that Respondents' decisions to

discharge Petitioners were upheld in all

cases.

The Court of Appeals decision is

reported at 794 F.2d 1575 (Fed. Cir. 1986).

The MSPB decisions are reported at 17 MSPR 62

(1983) and 17 MSPR 119 (1983). The presiding

officials' decisions are unreported.

JURISDICTION

The Court of Appeals' decision was

issued July 2, 1986, and judgment entered on

that decision the same date. This court has

jurisdiction under 28 USC § 1254 (1).

STATUTES INVOLVED

Title V, United State Code, Section

230i(b) provides, in relevant part:

Federal personnel management should

be implemented consistent with the

following merit system principles:

x * &

(2) All employees and applicants

for employment should receive fair

and equitable treatment in all

aspects of personnel management...

% 2 ®

(8) Employees should be --

(A) Protected against arbitrary

action, personal favoritism, or

coercion for partisan political

purposes,...

5 USC § 2301.

Title V, United States Code, Section

7703 (c) provides as follows:

In any case filed in the United

States Court of Appeals for the

Federal Circuit, the court shall

review the record and hold unlawful

and set aside any agency actions,

findings, or conclusions found to

be --

4

arbitrary, capricious, an

abuse of discretion, or

otherwise not in

accordance with law;...

5 USC § 7703.

Title V United States Code, Section 7311

provides:

An individual may not accept or

hold a position in the Government

of the United States...if he --

x k& &

(3) participates in a strike, or

asserts the right to strike against

the Government of the United

States...

5 uSC § 7311.

STATEMENT OF THE CASE

Petitioners are former air traffic

control specialists, who were employed by the

Federal Aviation Administration (hereinafter

"FAA" or “Agency"). In August, 1981,

Petitioners were charged with participating

in a strike and unauthorized absence. in

August and September, 1981, Petitioners were

5

removed from their employment. The FAA never

considered any penalty other than removal

from employment for those it found had

participated in the strike. E.g. Exhibit 94

at 137-38 (Stipulation of Agency counsel).

The Agency never exercised any discretion

with respect to the penalty but simply

removed all those it believed had

participated in the strike.

After Petitioners were removed, they,

and thousands of other air traffic

controllers, filed timely appeals with the

MSPB. Before hearings were held in

Petitioners' cases, the FAA agreed to

reinstate some of the controllers it had

fired for striking. The parties stipulated

below that:

The FAA nationwide has reinstated

some .-& ¢# [2 2 = = 4:

controllers/appellants who were

removed for participation in the

1981 strike pursuant to settlement

agreement. The identity of these

controilers and their date of

6

reinstatement is known to the FAA.

E.g., Troutdale Tower Stipulation, No. 41.

For example, Seattle region controllers

Steven D. Klapstein and Robert E. Womeldorff

were reinstated at some time before September

22, 1982. Mr. Klapstein was reinstated to

the Portland, Oregon tower August 23, 1982.

Exhibit 608. The evidence was uncontradicted

that Mr. Klapstein did participate in the

August, 1981 strike. Portland Transcript at

33, 203; Exhibits LL, NN (picket line

photographs).

Petitioners contended before the MSPB

presiding officials that the favored

treatment received by those controllers who

were reinstated violated Merit Systems

principles of equal treatment and that, under

well-established MSPB holdings, the

government .had the burden to prove a

legitimate reason for this disparate

treatment. The presiding officials held that

-

the statute which prohibits strikes by

government employees requires that any

striking employee be fired and therefore

rejected Petitioners' contention.1 Title Vv,

United States Code, Section 7311 provides, in

relevant part:

An individual may not accept and

hold a position in the Government

of the United States or the

government of the District of

Columbia if he ---

x *& &

(3) Participates in a

strike or asserts the

right to strike, against

the Government of the

United States or the

government of the

District of Columbia;...

5 USC § 7311.

Petitioners timely requested review by

1 Petitioners' consolidated appeals

were heard initially by two presiding

officials. Presiding Official John Tapp

ruled as above, that 5 USC § 73i1 requires

that any striking government employee be

fired. Presiding Official Carol Teather did

not address Petitioners' contention.

8

the MSPB. The MSPB declined to rule as to

whether 5 USC § 7311 required removal of

striking employees but affirmed the presiding

officials' decisions on the ground that

disparate treatment, considered as a

Mitigating factor, was not sufficient to

require reversal of the presiding officials’

decision. The Board also noted the public

policy favoring settlement of disputes.

Herbert vs. FAA, 17 MSPR 62, 70 (1983).

Petitioners also argued to the Board

that the Agency had erroneously considered 5

USC § 7311 to require their removal for

participation in a strike. As to this

contention, the Board simply relied on its

decision in Schapansky vs. Department of

Transportation, 13 MSPR 589 (1982), which

held that removal is within the permissible

range of penalties for striking, thus would

not be reversed. The Board did not address

Petitioners' contention that the Agency's

\

9

decision could not be upheld as an exercise

of discretion Since the Agency never

exercised its discretion.

Petitioners requested review in the

Federal Circuit Court of Appeals. The Court

of Appeals upheld the MSPB decision, though

on grounds different from those relied on by

the Board or the presiding officials. The

Court of Appeals held that the requirements

of the Civil Service Reform Act of 1978 for

equal treatment of employees do not apply to

agency reversals of penalties previously

imposed. Bergh vs. Department of

Transportation, 794 F.2d 1575, 1577 (Fed.

Cig. iade6). The Court found the

reinstatement of Messrs. Klapstein and

Womeldorff to be "settlement" of pending

litigation, not the imposition of different

penalties.

In addition, the Court noted the

Following "explanation" which the

10

government's counsel made in the government's

brief to the Court of Appeals:

The FAA conducted an in-depth

analysis of each of the 11,000

cases of the removed air traffic

controllers in preparation for the

litigation before the MSPB. As

part of the litigation strategy,

the FAA undertook an analysis of

the strengths and weaknesses of

each case. Based on this

individualized analysis, the agency

made decisions to enter into

settlement negotiations with

certain air traffic controllers

whose appeals were pending. As

part of this analysis, the FAA also

reviewed the individual cases of

the Petitioners and made individual

determinations that settlement was

not warranted in these cases. The

Agency embarked on the litigation

analysis in order to best prepare

its cases for hearing, not under

any policy to settle cases. The

cases selected for settlement were

those whose examination

demonstrated to the FAA that

further litigation would not be

successful.

Id. The Court: of Appeals held the government

need not give "detailed reasons" for its

different treatment of some fired

controllers. Although the Agency never

ll

presented any evidence of any kind on this

question, the court relied on the

government's statement in its brief as "a

sufficient explanation" for the difference in

treatment between Petitioners and those

controllers who were reinstated. Finally,

the Court noted that the law favors

settlement and that the "government is to be

commended, not criticized," for settling

cases it did not think it could win. Id. at

1578.

As to the question whether 5 USC § 7311

required Petitioners' removal for striking,

the court found it unnecessary to decide that

question since removal was within the range

of permissible exercises of Agency

discretion. Id. at 1579. The Court did not

address the fact that the Agency never

exercised its discretion in this case,

because it believed firing Petitioners was

mandatory under the statute.

12

The Court of Appeals' jurisdiction in

this case was based on 5 USC § 7783, which

provides for judicial review of decisions of

the MSPB. The MSPB's jurisdiction over

Petitioners' appeals from their termination

decisions was based on 5 USC § 7513 (d) and §

7761.

REASONS FOR GRANTING THE WRIT

The Circuit Court's decision

destroys the rule of equal

treatment for government employees,

therefore deciding an issue which

has not been but should be directly

decided by this Court.

After removing most of the nation's air

traffic controllers from service, the Agency

reinstated some controllers. The record

contains uncontested evidence of these

reinstatements2 but no evidence of any kind

2 Abbott (Boeing Tower) vs. FAA,

Master File, Tapp 1 Stipulation No. 38;

Babcock (Sea-Tac Tower) vs. FAA, Master File,

Tapp 3 Stipulation No. 38; Cady (Troutdale

Tower) vs. FAA, Master File, Tapp 4

Stipulation No. 42.

13

to show why these controllers were

reinstated. There was no contention that the

cases of the reinstated controllers were

factually any different from those of

Petitioners. There was considerable

evidence, for example, that reinstated

controller Klapstein was striking, including

testimony of supervisors and photographs of

Mr. Klapstein on the picket line. Portland

Transcript at 33, 203; Ex. LL, NN.

In response to Petitioner's contention

at the hearing level that the reinstatement

of some allegedly striking controllers

violated the fundamental Merit Systems

principle of equal treatment of employees,

the presiding officials either ignored the

issue (E.g. Arp vs. FAA, Initial Decision at

49-50, Presiding Official Teather), or held

the contention moot on the ground that 5 USC

§ 7311 required removal of any striking

employee. Bergh vs. FAA, Initial Decision,

14

74, n97 (Presiding Official Tapp).

On review, the MSPB relied on tort and

commercial litigation cases to hold that

evidence of a settlement is not admissible,

therefore the government's burden to

demonstrate the reasons for unequal treatment

disappears in cases where that unequal

treatment is by case settlement rather than

by initial charge. Herbert (Seattle Tower)

vs. FAA, 17 MSPR at 70.

The Federal Circuit modified the Board's

decision somewhat, holding the Agency "was

not required to give detailed reasons in each

particular case" for discriminating between

those controllers it reinstated and those it

did not. Bergh, supra, 794 F.2d at 1577

(emphasis added). Though there was no

evidence as to the government's reasons for

reinstating some controllers, the Court

accepted the Agency's statement in its brief

that the Agency had carefully analyzed each

15

case and had made individual determinations

to settle as a matter of litigation tactics.

Id. The Court also cited a string of

commercial litigation cases for the

proposition that the "law favors settlement

of cases" and held that the "government is to

be commended, not criticized" for deciding

not to litigate some controller cases. Id.

Thus, without evidence of any kind, and

by the loosest analogy to cases entirely

different on their facts, the Court has

abrogated the principle of equal disciplinary

treatment for federal employees. Under the

Court's rule, an agency wishing to

discriminate between two employees can make

its decision unreviewable by adopting the

Simple expedient of applying the same initial

discipline to both employees, then "settling"

the litigation which arises therefrom with

the favored employee.

The Court's decision violates the

16

fundamental principle of merit systems

employment: equal treatment of similarly

situated employees based on merit. Equal

treatment has been basic to federal

employment law under previous statutory

schemes as well as under the 1978 Civil

Service Act. E.g. Exec. Order 9830 of Feb.

24, 1947, Section 01.2 (d), 3 CFR 608 (1943-

48) (“insure equitable and uniform treatment

to employees against whom an adverse action

is proposed."); 5 USC § 2301 (b)(2) ("fair

and equitable treatment in all aspects of

personnel management"); Federal Personnel

Manual, Ch. 751, Subch. 1l-2c (1)(2) (1976)

(Agencies to be "as consistent as possible"

in deciding discipline).

The MSPB has followed the principle of

equal treatment in its cases, notably Douglas

vs. Veteran's Administration, 5 MSPR 280,

306-07 (1981). The Board has also explained

that the principle of equal treatment for

cial ial WD

17

Similarly situated employees further derives

from the statutory requirement that arbitrary

agency action be set aside. Id. at 301-03; 5

USC 7703 (c).

Petitioners are aware of no case in

which this Court has specifically: adopted the

Board's requirement that discipline be

administered equally to similarly situated

employees. However, the principle is

undisputed and indisputable under the

applicable statutes and cases previously

decided by the Board and the Federal Circuit,

other than the cases of former air traffic

controllers. Indeed, in Moseley vs. United

States Postal Service, No. 86-815, (Fed. Cir.

August 28, 1986), the Court of Appeals sent a

case back to the Board for reconsideration in

light of an arbitration award which had

reinstated a similarly situated employee.

The case arose out of a physical altercation

between the two employees. The Court of

18

Appeals held Moseley entitled to

consideration of the facts of the case and a

decision whether there were grounds for

treating him differently from his reinstated

co-combatant. Petitioners in this case are

entitled to the same consideration -- the

Same assurance of equal treatment. The

Court's decision below would avoid the

fundamental principle of equal treatment.

The decision is important to federal

employees in all agencies, and this court

should grant review and reverse the Court of

Appeals.

The Court of Appeals has_so far

departed from the accepted and

usual course of judicial

proceedings that its decision

should be reversed.

The decision of the Court of Appeals

below is based neither on evidence nor on

legal reasoning. The Court's opinion is best

characterized by its statement that "[t]he

19

government is to be comme:i224, not

Criticized" for settling certain air traffic

controller cases. Bergh, supra, 794 F.2d at

Livre. The question below was not

"commendation" or "criticism"; the question

was affirmance, modification or reversal.

The law requires the Federal Circuit Court of

Appeals to review decisions of the MSPB for

specific errors. 5 USC § 7703 (ce). The

Court of Appeals ignored these fundamental

principles of judicial review.

The Federal Circuit accepted the

principle enunciated by the Board in Douglas

vs. Veteran's Administration, supra, that, in

cases where disparate treatment is alleged,

the Agency has the burden to show the reason

for treating similarly situated employees

differently. Douglas, supra, 5 MSPR at 307.

The court sought to distinguish Douglas on

the ground that this case involves disparate

treatment at the litigation stage rather than

20

in the imposition of an initial penalty. 794

F.2d at 1577. Thus the Court held the Agency

"was not required to give detailed reasons in

each particular case". Id. at 4. The Court

accepted the Agency's statement, made by

counsel in its brief to the Court, that the

cases were settled based on "an analysis of

the strengths and weaknesses of each case".

Thus the Court has substituted for the

requirement of evidence of reasons for

disparate treatment an acceptance of an

explanation in a brief by a lawyer. That

"explanation" has absolutely no evidentiary

value and was never considered by the

presiding officials or by the Board, since it

was never raised until counsel for the Agency

put it forward in the Agency's brief to the

Court of Appeals. Petitioners are unaware of

any other instance in the law in which such a

generaiized and self-serving representation

can serve to resolve the factual question on

LoTR

21

which an entire case turns. It would be one

thing (though completely insufficient) had an

Agency witness made such statements under

oath and subject to cross-examination at the

hearing before the presiding officials.

However, that did not happen. . The Agency

refused to provide any explanation during the

course of these proceedings until it did so

by way of argument in its brief to the Court

of Appeals. The Court's acceptance of

counsel's argument in the place of evidence

of such a central and contested fact as the

reason Petitioners were treated differently

is far beyond any accepted judicial practice

in any jurisdiction in the United States. 3

If the Federal Circuit Court of Appeals means

to reverse decades of Civil Service practice

and allow federal agencies to discriminate

3 E.g. Goldstein vs. Keller, 728 F.2d

32 ({Aet Cif. i984}: Bill S8. Treusetees of

Indiana University, 537 F.2d 248 (7th Cir.

1976).

—_

22

among similarly situated employees without

cause, it should do so by careful legal

analysis, not by simultaneously abrogating

basic principles of evidence and judicial

review. The Court's decision should be

reversed.

The Court of Appeals has decided a

federal question in a way in

conflict with applicable decisions

of this Court.

This Court made clear in Securities

Exchange Commission vs. Chenery Corp., 332 US

194, 67 S.Ct. 1575 (1946) that:

A reviewing court, in dealing with

a determination or judgment which

an administrative agency alone is

authorized to make, must judge the

propriety of such action solely on

the grounds invoked by the agency.

If those grounds are inadequate or

improper, the court is powerless to

affirm the administrative action by

substituting what it considers to

be a more adequate or proper basis.

To do so would propel the court

into the domain which Congress has

set aside exclusively for the

administrative agency.

332 US at 196; 67 S.Ct. at 1577.

ee

23

The Agency took the position throughout

the proceedings below that, under 5 USC §

7311, removal was the required penalty for

any employee found to have engaged in

Striking. The Agency therefore never

exercised its discretion to consider the

applicable factors with respect to the

appropriate penalty. It simply removed all

of the Petitioners in this case because it

believed that was the required result under

§ 7311. E.g. Bergh, supra (Portland Tower),

Ex. 94 (Payne Deposition) at 137-38.

The Court of Appeals held in Schapansky

vs. Department of Transportation, 735 F.2d

477 (Fed. Cir.) cert denied, 105 S.Ct. 432

(1984) that it would leave open the question

whether § 7311 required removal of strikers

because removal was a permissible penalty,

within the Agency's discretion in cases of

Striking. Bergh, supra, 794 F.2d at 1579,

quoting Schapansky at 485. Thus the Court's

24

application of the Schapansky rationale to

this case brings the Court into direct

conflict with Chenery, supra, on this record.

There is no question at all on the record

that the Agency never exercised its

discretion on the question of the appropriate

penalty for strikers. It simply dismissed

all strikers on the ground that 5 USC § 7311

required it. The MSPB and the Federal

Circuit therefore violated the rule of

Chenery in affirming the Agency's discharge

of Petitioners by purporting to uphold an

exercise of discretion. There was no

exercise of discretion to uphold. The basis

for the Agency's decision was an

interpretation of 5 USC § 7311 as mandatory,

and the Court was required to review the

Agency's decision on that basis. Instead,

the Court has substituted its judgment for

the Agency's discretion. This it may not do.

It cannot fairly be said that, had it

25

Known it had discretion as to the penalty in

this case, the Agency would have dismissed

each of the Petitioners below. Petitioners

were entitled to individual Agency

consideration of the facts in their cases.

They were denied this individual

consideration by the Agency's decision as to

the meaning of § 7311. The Court's

affirmance on the basis that the Agency had

discretion to fire Petitioners is a decision

by the Court that, in the exercise of

discretion, Petitioners would have been

fired. This is a decision the Federal

Circuit has no power to make on judicial

review. 5 USC § 7783 (c).

Further, review should be granted

because the reason for Petitioners' discharge

requires a decision as to whether 5 USC §

7311 mandates the discharge of any government

employee who engages in the conduct

prohibited by that statute. No such decision

26

has ever been rendered by this Court, and the

construction of that statute is a matter of

great importance to large numbers of federal

employees and former air traffic controllers.

CONCLUSION

The Court of Appeals, in its decision

below, has ignored basic principles of

judicial review and ordinary factual and

legal requirements and has rendered a

decision which nullifies the principle of

equal disciplinary treatment for federal

employees. The former air traffic

controllers discharged in 1981 are entitled

to the same careful and individual

consideration as any other litigant. These

Petitioners have not received that

consideration. Because of the great

significance of the Court's decision

concerning equal disciplinary treatment for

federal employees, and because of the radical

27

departure from accepted principles of

judicial review practiced below, certiorari

should be granted and the decision of the

Court of Appeals reversed.

Respectfully submitted this 26th day of

September, 1986.

IMPERATI, BARNETT,

SHERWOOD & COON, P.C.

James S. Coon

GIBBS, DOUGLAS, THEILER

& DRACHLER

Paul Drachler

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appendix Index

APPENDIX A

Decision of the United States

Court of Appeals for the

Federal Circuit, issued July 2,

1986, affirming the decision of the

Merit Systems Protection Board .. A-2

APPENDIX B

Opinion and Order of the Merit

Systems Protection Board issued

September 19, 1983 . .«. « « « « « e A=15

Footnotes. ao . * * oe o e * es o

A-2

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

P.M. BERGH, et al.

MILTON. C. CROISSANT, et al,

LARRY L. JOHNSON, et al.,

JOHN C. HOLEN, et al.,

MYRON L. THOMASON, et al.

JOHN W. KARR, et al.,

STUART F. ETTER, et al.,

MELVIN L. BEEBE, et al.,

WILLIAM C. JOHNSON, et al.,

No. 85-1102

No. 85-1103

No. 85-1106

No. 85-1108

No. 85-1240

No. 85-1241

No. 85-1242

No. 85-1243

No. 85-1245

Petitioners,

vs.

DEPARTMENT OF TRANSPORTATION,

FAA,

oo we tS SS we Ge we we we we wee Ow Oe Oe ee ie ee Ge

Respondent.

DECIDED: July 2, 1986

Before FRIEDMAN, SMITH, and BISSELL, Circuit

Judges.

FRIEDMAN, Circuit Judge.

In this petition for review, former air

traffic controllers challenge the decisions

A-3

of the Merit Systems Protection Board (Board)

upholding their removal by the Federal

Aviation Administration (Administration) for

participating in the illegal 1981 strike on

various grounds. A major contention is that

the Administration acted improperly by

reinstating other controllers whom it also

had removed for striking but not reinstating

the petitioners. We reject the petitioners'

challenges to the decisions of the Board and

affirm them.

I

Counsel for the petitioners requested

Oral arguments. We determined, however, that

all but one of the issues the petitioners

raised have been authoritatively decided in

Our previous decisions, that the facts and

legal arguments were adequately presented in

the briefs and record, and that the

decisional process would not have been aided

by Oral argument. Fed. R. App. P. 34(a). We

A-4

heard oral argument on the issue whether the

Administration acted improperly in

reinstating some, but not all, of the fired

controllers.

II

A. The parties stipulated that "[t]he

FAA nationwide has reinstated some air

traffic controllers/appellants who were

removed for participation in the [air traffic

controllers] strike pursuant to settlement

agreement." The petitioners argue that the

agency "violated MSPB principles and

fundamental fairness by reinstating some

controllers found guilty of striking, for no

reason which can be discerned from the

record." They cite Douglas vs. Veterans

Administration, 5 MSPR 288 (1981), and Woody

v. General Services Administration, 6 MSPR

486 (1981), for the proposition that “where

an appellant raises an allegation of

disparate treatment in comparison to

A-5

specified employees, the agency must prove a

legitimate reason for the difference in

treatment by a preponderance of the evidence

before the penalty can be upheld." Woody, 6

MSPR at 488 (citing Douglas, 5 MSPR at 306-

07). The petitioners assert that the agency

"has provided no explanation, much less any

evidence, as to why it vacated its findings

and dismissed its charges against the

reinstated controllers while denying

petitioners this benefit."

Woody and Douglas, however, are

inapposite because they deal solely with the

question whether the penalty the agency

selected was proper. The alleged disparate

treatment here, however, does not involve any

difference in the penalty imposed upon

different employees -- all the air traffic

controllers involved were removed -- but

turns upon the propriety of the

Administration's settling some of the cases

A-6

before the Board by reinstating some

controllers, and not explaining the reason

why it also did not enter into like

settlements with the petitioners.

The agency has given the following

explanation in its brief of the process by

which, and the reasons why, it determined to

settle some of the cases but not those of the

petitioners:

The FAA conducted an in-depth analysis

of each of the 110,008 cases of the

removed air traffic controllers in

preparation for the litigation before

the MSPB. As part of the litigation

Strategy, the FAA undertook an analysis

of the strengths and weaknesses of each

case. Based on this individualized

analysis, the agency made decisions to

enter into settlement negotiations with

certain air traffic controllers whose

appeals were pending. As part of this

analysis, the FAA also reviewed the

individual cases of the petitioners and

made individual determinations that

settlement was not warranted in these

cases. The agency embarked on the

litigation analysis in order to best

prepare its cases for hearings, not

under any policy to settle cases. The

cases selected for settlement were those

whose examination demonstrated to the

FAA that further litigation would not be

successful.

We know of no principle that precludes

the government from settling, upon whatever

terms it deems suitable, cases in which it

determines that the likelihood of success is

so low as to make continued .litigation

inappropriate. The decision whether to

settle a particular case and upon what terms

is a matter particularly within the

discretion of the agency conducting the

litigation. The agency was not required to

give detailed reasons in each particular case

concerning the facts that led it to settle

rather than to litigate, as the petitioners

apparently would require it to do. The

agency's statement that based upon "an

analysis of the strengths and weaknesses of

each case," it decided not to conduct

"further litigation" of those cases where the

analysis indicated that such litigation

"would not be successful," was a sufficient

A-8

explanation for the settlements the

government made.

The Law favors settlement of cases.

United States v. Contra Costa County Water

District, 678 F.2d 541, 565 (6th Cir. 1982);

Airline Stewards & Stewardesses Association,

Local 550, TWU, AFL-CIO v. American Airlines,

573 F.2d 960, 963 (7th Cir. 1978); Florida

Trailer & Eguipment Co. v. Deal, 284 F.2d

567, 571 (5th Cir. 1960); Fed. R. Evid. 408

advisory committee note. The government is

to be commended, not criticized, for deciding

not to litigate those of the vast number of

air traffic controller cases pending before

the Board in which it concluded that its

likelihood of success was so small as to make

continued litigation unwise.

B. The petitioners next contend that

the Administration denied them equal

protection because, due to friendship or

personal favoritism, Administration officials

A-9

notified other air traffic controllers, but

not the petitioners, of their deadline shift

for reporting to work. They rely upon

Olshock vs. Village of Skokie, 411 F.Supp.

257. (N.D. I1ll.), aff'd, 541 F.2d 1254 (7th

Cir. 1976). In Olshock, during a police

officers strike the Village of Skokie took an

informal poll to determine which officers

might return to work. Those who said they

would do so were notified that if they

reported by a specific date, they would not

be discharged, but merely suspended. The

court held that.

[t]he failure of the defendants to

give all the 59 striking policemen

notice that they would not be discharged

if they reported for duty in uniform on

Or prior to July 13, 1975, and the

failure of defendants to give said

notice to the plaintiffs herein,

constituted a failure to provide equal

protection under the laws to plaintiffs

within the meaning of and as required by

the Fourteenth Amendment to the United

States Constitution....

Id. at 265.

A-1@

The rationale of Olshock was that the

Village unfairly had discriminated against

those officers who were not notified that if

they reported by the deadline, they would not

be discharged, in favor of those who were

notified. In that situation, the non-

notified officers were not aware of the

deadline and the consequences of failing to

meet it. The air traffic controllers,

however, were in a quite different situation,

for we have held that

[e]ach petitioner knew when his next

regularly-scheduled shift commenced and

elected not to show up at that time.

Having disregarded the initial 48 hour

moratorium, petitioners can hardly

complain that they were not specifically

and personally notified that each had an

opportunity to also disregard an

extension of that moratorium.

Adams v. Department of Transportation, FAA,

735 F.2d 488, 491 (Fed. Cir.), cert. denied,

1065 S.Ct. 432 (1984).

The petitioners argue, however, that

even if the Administration was not required

|

$

A-11l

to notify all the air traffic controllers of

their deadline shifts, it could not

selectively notify some ut not others. The

petitioners point out the Mr. Helms, the

administrator of the agency, issued a

"directive" that supervisors should encourage

their friends to come back to work.

The Helms statement, however, did not

relate to notifying controllers of their

deadline shifts, but only urged supervisors

to encourage controllers with whom they were

friendly to return to work. In his testimony

Mr. Cox, a supervisor at one of the towers

involved, explained the scope and purpose of

the Helms statement:

Q Now in this telecon, Mr. Helms

advised that he did not want supervisors

to be calling controllers as

Supervisors, is that right?

A That was not a directive. He

suggested that the Agency--he said the

Agency was not going to instruct

supervisors to make calls as supervisors

to their people.

A-12

Q So he said that as far as the

Agency's position was concerned, as a

Supervisor you were not being directed

to call--

A That's correct.

Q Controllers, is that correct? But

he did say that the Agency was

suggesting that supervisors call

controllers as personal friends?

A I think that's a little liberal.

My interpretation of what I heard was

that if you felt, and if you were

concerned about these people as friends-

-he wasn't suggesting to call everybody

as a friend. What he was saying is that

if you had someone you were especially

concerned about as a friend, that you

could be influential with and answer

questions, go ahead and give him a call.

Cc. The petitioners argue that the

Administration "erroneously decided that 5

USC Section 7311 require d dismissal of any

employee found guilty of striking," whereas

that statute permitted the agency to impose a

lesser penalty. We rejected a similar

contention in Schapansky v. Department of

Transportation, FAA, 735 F.2d 477 (Fed.

Cir.), cert. denied, 105 6.Ct. 432 (1984),

where we ruled that

[w]hether removal is mandatory under 5

USC § 7311 or 18 USC § 1918 need not be

here decided. Removal is permissible

under those statutes and no statute

prohibits removal of any who strike

against the United States.

Id. at 485.

Similarly, in the present case we cannot

find that the Administration abused its

discretion or otherwise acted improperly in

concluding that the appropriate penalty for

the petitioners' illegally striking against

the government was removal.

D. Two of the petitioners (Burkett,

No. 85-1102, and Johnson, No. 85-1245)

contend that their failure to report for work

resulted not from participation in the strike

but because they were confused about their

deadline shift for reporting. We have

rejected similar claims in Anderson v.

Department of Transportation, FAA, 735 F.2d

537 (Fed. Cir.) cert. denied, 185 S.Ct. 432

A-14

(1984); Adams vs. Department of

Transportation, FAA, 735 F.2d 488 (Fed.

Cir.,), cert. denied, 105 S.Ct. 432 (1984) ;

and Dorrance v. Department of Transportation,

FAA, 735 F.2d 516 (Fed. Cir), cert. denied,

105 S.Ct. 432 (1984). For the reasons given

in those opinions, we also reject the claim

here.

The decisions of the Merit Systems

Protection Board upholding the removal of the

petitioners are affirmed.

AFFIRMED

ee

A-15

APPENDIX B

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM P. HERBERT, ET AL.1l/

(Seattle Center)

Vv. DOCKET NUMBER

SEO75281F0536

DEPARTMENT OF TRANSPORTATION,

FAA,

ee eee ee ee ee

OPINION AND ORDER

Appellants2/ petitioned the Board's

Seattle Regional Office for appeal of their

removals from employment as Air Traffic

Control Specialists at the Seattle Air Route

Traffic Control Center (Seattle Center) for

participating in an illegal strike and being

absent without leave (AWOL) on various dates

in August 1981. The presiding official

affirmed the removals with respect to 38

appellants. As to appellant William C.

Johnson, the presiding official reversed the

i

A-16

removal, sustained the AWOL charge, and

mitiaated the penalty to a three-day

ei ste nt Das hatin

suspension. The presiding official also

ordered the agency to cancel the constructive

suspensions which he found had been imposed

on all appellants during the removal notice |

period.

feo De neat A ia ert

Appellants have filed a consolidated

petition for review and a supplemental

petition.34% The agency has opposed the

petitions and has filed cross-petitions for

review seeking reversal of the presiding

official's order cancelling the constructive

suspensions in all cases and reversing the

removal of appellant William Johnson. The

Board hereby GRANTS the petitions for review

under 5 USC § 7701(e) (1).

Appellants first assert that the

agency's failure to notify them of their

respective deadlines constituted harmful

error. They claim they were confused by the

PO AR Ra

A-17

public announcement of President Reagan

concerning their employment status and

probably would have returned to work had they

known their actual deadlines.4/ The

presiding official found that the failure to

return within one's deadline, although not

explicitly charged, was a material element of

the agency's charge of strike participation

and that, therefore, the agency erred in

failing to notify appellants of their

deadline shifts. However, he found that 38

of the appellants did not prove that the

agency's error was harmful. In Anderson vs.

Department of Transportation, MSPB Docket No.

SLO75281F0347 at 7-8 (April 25, 1983), the

Board held that a former air traffic

controller's deadline shift, or notification

of that deadline, is not an element of the

strike charge and that a showing of confusion

with respect to such deadline shift therefore

does not rebut the agency's prima facie case

A-18

of strike participation.

Moreover, in Campbell v. Department of

Transportation, MSPB Docket No. DEO75281F0674

at 15-16 (April 25, 1983), we held that,

despite any ambiguities and uncertainties

caused by the President's announcement or

Statements by agency officials regarding a

former air traffic controller's employment

Status, an appellant was required to timely

notify the agency of his readiness and desire

to return to work in order to have availed

himself of the Presidential amnesty offer.

We also found that it was incumbent on the

former employee to seek any necessary

Clarification from the agency with respect to

his individual deadline shift. We

specifically rejected the contention that the

appellant was relieved of those

responsibilities based on his allegations of

confusion regarding his individual deadline

and employment status, and ensuing belief

A-19

that he already had been discharged.

The Board finds, therefore, that the

presiding official erred in finding that the

agency's failure to notify appellants of

their deadline shifts was error. Moreover,

any such error would not affect the removals

as to 38 of the 39 appellants before the

Board in this case.

The presiding official found that

appellant William C. Johnson demonstrated

that he was harmed by the agency's failure to

notify him of his deadline shift. He

therefore reversed the removal action. The

presiding official found, however, that

appellant was AWOL one day and mitigated the

penalty to a three-day suspension. The Bwoard

finds that the presiding official's findings

as to appellant Johnson are inconsistent with

Anderson and Campbell. The agency proved the

charges of strike participation and AWOL by

preponderant evidence, appellant did not

A-20

prove harmful error by the agency in the

application of its procedures, and the

penalty of removal is appropriate and

promotes the efficiency of the service.

Therefore, the Board hereby REVERSES the

presiding official to the extent that the

agency's removal of appellant Johnson is

hereby SUSTAINED.

Appellants next argue that the agency's

failure to specify their deadlines in the

notices of proposed removal violated their

due process rights. They also contend that

the agency's notification of selected

appellants regarding the deadline violated

equal protection requirements. These

assertions lack merit because as discussed,

Supra, neither the deadline shift nor

notification of that deadline is an element

of the strike charge. See Anderson, supra,

and Campbell, supra.

Appellants allege that the agency failed

A-21

to establish a prima facie case of strike

participation. They argue specifically that

the presiding official erred in assigning

probative value to the watch schedules and

the time and attendance reports submitted by

the agency because these documents were "so

seriously flawed" that they provided no basis

to establish unauthorized absence.

The presiding official considered

appellants' attack on the reliability and

sufficiency of these documents in his initial

decision and found that the few inaccuracies

and discrepancies demonstrated during the

hearing did not justify excluding the watch

schedules on a wholesale basis. He concluded

that in the absence of material discrepancies

Or inaccuracies in an individual case, the

time and attendance records and the watch

schedules were generally sufficient, taken

together, to establish a prima facie case of

a controller's schedule and his failure to

A-22

appear as scheduled.

The Board finds that the presiding

official did not abuse his discretion in

admitting and assigning probative value to

the documents submitted by the agency. See

Jackson v. Department of the Army, MSPB

Docket No. AT07528118273 (February 3, 1982);

Borninkhof v. Department of Justice, 5 MSPB

150 (1981). Further, the Board concurs with

the presiding official's finding that the

agency presented sufficient evidence to

establish a prima facie case of strike

participation. See Schapansky v. Department

of Transportation, MSPB Docket No.

DA075281F1130 at 6 n.2 (October 28, 1982).

The Board notes that in addition to the

documents, the parties stipulated that the

facility chief would have testified that an

appellant's duty status was as shown on the

watch schedule and that any shift changes

were marked by an asterisk thereon. See

A-23

Herbert Master file, Tab 29, Stipulation Nos.

C-3(b; and (d). Therefore, the Board finds

that Appellants' argument in this regard is

without merit.

In addition to the general argument of

error by the presiding official in this

regard, appellants raise fact-specific

arguments with respect to the following two

appellants.

Appellant Theodore Mapile contends that

the presiding official erred in finding that

he was absent without leave on August 5

because his scheduled noon shift on August 5

is marked out on the watch schedule. The

presiding official considered the watch

schedule and the time and attendance report,

the fact that appellant did not appear for

either of his scheduled shifts on August 4 or

5, was not on approved leave, and did not

contact the facility to explain his absences

and found that the agency established a prima

A-24

facie case of strike participation on those

dates. We agree. Furthermore, appellant

never claimed before the presiding official

that he was not scheduled for a noon shift on

August 5. The presiding official considered

this in his findings. See Initial Decision

(I.D.) at 54 n.71. The Board finds no reason

to disturb the presiding official's

conclusions. See Weaver v. Department of the

Navy, 2 MSPB 297-299 (1980).

Appellant Wayne H. McCormick alleges

that he had no legal duty to report for work

on August 5 since that was usually his

regular day off (RDO) and he never requested

nor was he ever notified the his RDO was

cancelled. The watch schedule for August 5

shows "RDO-1" crossed out and "08" written in

next to the initials "CZ." THe presiding

official acknowledged that the document

raised significant questions regarding

appellant's schedule on August 5 and that the

A-25

agency should have called as a witness Clyde

Zumwalt who controlled the c!iange in work

schedule. Still, the presiding official

found the agency's theory more credible than

appellant's and concluded that appellant

participated in an illegal strike on August

3, 4, and 5. See I.D. at 57-61. We can find

no reason to disturb the presiding official's

findings in this regard. See Weaver, supra.

Appellants argue generally that the

agency failed to prove the charges by the

requisite burden of proof. This argument is

without merit. The presiding official,

applying Schapansky, supra, properly found

that appellants were absent without leave

during the strike, that appellants failed to

rebut the agency's case, and that the agency

proved the charges by preponderant .

evidence, 9/

Appellants allege specifically that the

agency failed to prove the charge of strike

A-26

participation as to appellants Jon Fallstrom,

Clifford Hooper, James Limric, and David

Michael. Appellants set for the facts

regarding the particular situations of these

appellants. The Board notes that the

presiding official considered the same facts

at length in his initial decision and found

that the agency proved the charges in each

instance. Appellants merely disagree with

the presiding official's findings. The Board

can discern no error in the presiding

official's findings. Therefore, we defer to

his conclusions. See Weaver, supra.

Appellants next contend that the

presiding official abused his discretion in

failing to consider a penalty less than

removal. The presiding official found that 5

USC § 7311 mandates removal as a penalty once

an agency decides to take an adverse action

against an employee for striking. In

Schapansky, supra, at 9, we did not decide

J tates me OK

A-27

whether as a matter of law, mitigation of the

penalty is foreclosed under § 7311(3). The

Board considered certain potentially

mitigating factors and found them to be

insufficient to warrant reduction of the

removal penalty imposed on a striking air

traffic controller.

Appellants argue that factors not

considered in Schapansky apply in their cases

and that the presiding official erred in

failing to consider them. The potentially

mitigating factors appellants now raise are

of the same general nature as those

considered and found insufficient to warrant

reduction of the removal penalty in

Schapansky.®/ Appellants, however, also

allege disparate treatment as a mitigating

factor under Douglas v. Veterans

Administration, 5 MSPB 313,331-32 (1981),

which was not considered in Schapansky and

contend that it is sufficient to reverse the

A-28

removals.7/ Appellants argue that other

controllers initially removed for

participating in the 1981 strike were later

reinstated pursuant to settlement agreements.

They argue that this amounted to disparate

treatment in violation of principles

established by the Board in Douglas v.

Veterans Administration, 5 MSPB 313, 332-333

(1981), and Woody v. General Services

Administration, 6 MSPB 410 (1981).

In his initial decision, the presiding

official found that appellants’ disparate

treatment contention was mooted by his

finding that 5 USC § 7311(3) mandates

removal. The presiding official relied on

Woody, Supra, at 4ll, wherein the Board held

that where the statutory penalty is

mandatory, the Board cannot order a lesser

penalty even if the agency has failed to

comply with the statute in other cases.

Appellants in this case and those with

A-29

whom they seek comparison were all air

traffic controllers, albeit at different

facilities, removed for participating in an

illegal strike. Therefore, the agency

imposed the same penalty in each instance.

The record reflects, however, that some

controllers initially removed for striking

were reinstated pursuant to settlement

agreements.8/ The agency acknowledged that

two air traffic controllers in the Seattle

region who were initially removed for strike

participation were later reinstated pursuant

to settlement agreements. See the record in

Ackley v. Department of Transportation, MSPB

Docket No. SE0O75281F0445, Appellant's Exh.

608.

In Schapansky, Supra, the Board found

that the nature and gravity of the offense of

strike participation by a person in the

sensitive position of air traffic controller,

and the direct effect of that participation

A-30

on the agency's ability to perform its

mission, far outweighed such potentially

mitigating factors as length of government

service and a flawless prior employment

record. The Board concluded that the

agency's imposition of a removal penalty on

such an air traffic controller could not be

deemed clearly excessive or disproportionate

to a sustained charge of striking against the

Federal government. The Board finds

Similarly here that disparate treatment is

not a sufficient mitigating factor. The

penalty of removal imposed on appellants by

the agency is not unduly harsh and promotes

the efficiency of the service. Cf. Otherson

v. Department of Justice, No. 82-1991, slip

op. (D.C. Cir. June 21, 1983) (suggests that

if the misconduct warrants the penalty, the

penalty is appropriate despite disparity in

treatment).

The Board notes further that public

A-31

policy strongly favors compromise and the

settlement of disputes. In re King, 3 MSPB

29 (1980). The courts have held that

evidence of offers to settle and the terms of

a settlement are inadmissible to demonstrate

liability on the part of the party making the

offer. Overseas Motors, Inc., v. Import

Motors Ltd., Inc., 375 F.Supp. 499, 536-537

(E.D. Mich. 1974), aff'd, 519 F.2d 119 (7th

Cir.), cert. denied, 423 US 987 (1975). This

exclusion extends to evidence concerning

settlement negotiations with third parties.

United States v. Contra Costa County Water

District, 678 F.2d 90, 92 (9th Cir. 1982);

Burns v. City of Des Peres, 534 F.2d 103, 112

(8th Cir.), cert. denied, 429 US 861 (1976);

City of Groton v. Connecticut Light and Power

Co., 84 FRD 420, 422-423 (D. Conn. 1979). by

preventing settlement offers and negotiations

from being admitted into evidence, courts

hope to encourage free and open negotiation

A-32

thereby furthering the policy toward

settlements. Burns, 678 F.2d at 92.

In this case, appellants attempt to

probe the facts and circumstances of the

settlement agreements between the agency and

other controllers in an effort to reverse

their removals. The Board finds that the

chilling effect such a probe would have on

settlement agreements outweighs appellants'

need for disclosure.

Appellants maintain that the cumulative

effect of agency and presiding official

errors provides a basis for reversal. They

also argue that the agency's failure to

exercise discretion in the mass removal of

striking controllers did not promote the

efficiency of the service. The presiding

official considered and rejected these

arguments in his initial decision. We can

find no reason to disturb his conclusions.

Appellants also allege that they

ote Pn iB tall

|

t

A-33

preserve all issues argued at the Regional

Office level even though not further argued

in their petitions for review.9/ Since

appellants have presented no new arguments to

disturb the findings made by the presiding

official as to these issues, the Board defers

to his findings.

Finally, appellants argue that

prevailing appellants are entitled to

attorney fees. This argument is moot since

there are no prevailing appellants in this

consolidated group. If there were, however,

they must follow the regulatory procedures

for requests for payment of attorney fees.

See 5 CFR § 1201.37(a).

Having considered all of the arguments

concerning the agency's removal of

appellants,10/ the Board now considers the

agency's petition fore review of the

Suspension action. The agency argues that

the presiding official erred in finding that

A-34

appellants were improperly suspended during

the removal notice period. The agency first

contends that the Board lacked jurisdiction

to review the suspension claims because a

suspension claim constitutes the basis for a

separate appeal and was not timely raised.

The Board has recently held in Smith v.

Department of Transportation, MPB Docket No.

DEO7581F0337 at 6-7 (August 24, 1983), that

the regulatory filing deadline for raising

claims for constructive suspension will be

waived under the unique circumstances of

these related appeals if they are raised at

the hearing on appeal or otherwise before the

record is closed, in the absence of a showing

of prejudice to the agency in defending its

action. See 5 CFR § 1201.12.

In this case, the presiding official

found that the suspension claim was raised

early in the discovery process in appellants'

Statement of facts and issues and that the

A-35

claim was fully explored at the hearing. He

found that the agency could not justifiably

claim surprise. We note further that the

agency did not even allege any prejudice in

defending its action due to the suspension

claim not being raised in appellants'

petitions for appeal. We therefore find the

agency's argument in this regard to be

without merit.

The agency argues that the presiding

official erred on the merits of the

Suspension issue. The agency contends that

appellants were not suspended but were simply

not paid because they were voluntarily absent

without leave. In Martel v. Department of

Transportation, MSPB Docket No. BN0O75281F0558

at 6-7, 11-12 (April 25, 1983), the Board

held that in order to meet his burden of

establishing jurisdiction over an alleged

Suspension during the notice period under 5

CFR § 1201.56(a) (2), an appellant must prove

A-36

by preponderant evidence that the action was

involuntary and disciplinary in nature, and

that the employee was ready, willing, and

able to work during the period of time in

question. The last of the three criteria

cannot be established without evidence that

the appellant contacted an agency official

with decision-making authority, in person or

otherwise, and unequivocally notified the

official that he was ready, willing, and able

to return to work. Id. at ll. Such a

showing effectively establishes, without

additional evidence, that the agency's action

Or inaction in continuing to maintain

appellant in a nonduty, nonpay status during

the notice period was involuntary on

appellant's part and disciplinary in nature

On the agency's part. Id. at 12.

We have reviewed the record and find

that only appellant David T. Michael meets

the test for an unlawful suspension which the

A-37

Board has articulated in Martel.1ll/ The

record reflects that appellant Michael called

the facility on August 11, four days after

his deadline, and stated that he wanted to

return to work. Hearing Transcript (H.T.) V

at 60, 79-80. He was told by Lois A. Bushey

(title given as "PMS") that it was too late.

See Agency file, Tab 3. However, appellant

testified that Ms. Bushey set up an

appointment for appellant with the facility

chief. Id. at 60. Appellant testified that

at the meeting on August 12, he asked to

return to work. Id. at 61. The facility

chief also testified concerning his meeting

with appellant. He acknowledged that

appellant stated that he wanted to return to

work, thrt he did not put appellant back, and

that appellant remained in a nonduty status

until his removal. H.T. I at 63.

The Board finds that appellant Michael

was ready, willing, and able to work on

A-38

August 12, 1981. The agency's maintenance of

appellant in a nonduty, nonpay status after

that date was involuntary on appellant's part

and disciplinary on the agency's part.

Therefore, the Board finds that appellant

Michael was suspended from August 12 through

October 15, 1981,12/ and that the suspension

constituted an appealable adverse action

under 5 USC §§ 75@1(2), 7512(2), and 7513(d).

The initial decision dated January 25, 1983,

is thus hereby AFFIRMED as to appellant

Michael's suspension.

Accordingly, the following summarizes

the Board's disposition of these appeals on

petition for review:

The initial decision is REVERSED as to

appellant William C. Johnson. Appellant

Johnsons removal is hereby SUSTAINED. The

initial decision is AFFIRMED as MODIFIED with

regard to the removal of the remaining

appellants in this consolidated group and

A-39

their removals are hereby SUSTAINED.

The initial decision is AFFIRMED as

MODIFIED as to appellant David Michael.

Appellant Michael's suspension from August 12

though October 1, 1981, is NOT SUSTAINED.

The initial decision is REVERSED as to its

finding o the suspension of the remaining

appellants in this consolidated group, and

the agency's maintenance of these appellants

in a nonduty, nonpay status during their’

removal notice period is not deemed to be

before the Board.

The agency is hereby ORDERED to amend

its records so as to place appellant David

Michael in a pay status from August 12, 1981,

to October 15, 1981, the effective date of

his removal. Proof of compliance with this

Order shall be submitted by the agency to the

Office of the Secretary of the Board within

twenty (20) days of the date of issuance of

this Opinion. any petition for enforcement

A-4@

of this Order shall be made to the Seattle

Regional office in accordance with 5 CFR §

1201.181(a).

This is the final order of the Merit

Systems Protection Board in these appeals. 5

CFR § 1201.113(c). Each appellant is hereby

notified of the right under 5 USC § 7763 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

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 (398) days after appellant's

receipt of this order.

FOR THE BOARD:

Sept. 29, 1983

(Date) Robert E. Taylor

Secretary

Washington D.C.

Attachment: Statement of the Board's policy

on service of its opinions and orders.

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1. This is one of several groups of

appellants consolidated by facility under the

lead case name of Herbert at the Regional

Office level. For purposes of administrative

expediency and efficiency, the Board is

recaptioning each of the six Opinion and

Orders in these cases to reflect the name and

docket number of an appellant in the

particular group and the facility where the

group was employed.

2. The 39 appellants included in this

consolidation are identified by name and

docket number in Appendix I attached to this

Opinion and Order. Thirty-seven are

represented by the law firm of Gibbs,

Douglas, Theiler, and Drachler of Seattle,

Washington. After the petition for review

was filed, the law firm withdrew as attorneys

for Marvin Johnson and Ronald Orton.

3. By Order dated March 3, 1983, the Board

granted a motion by attorneys Paul Drachler

of Gibbs, Douglas, Theiler, and Drachler, and

Samuel Imperati of Welch, Bruun, and Green to

permit the filing of a consolidated petition

for review and supplemental petitions by

facility for their approximately 200 clients

whose appeals were adjudicated by two

presiding officials in the Seattle Regional

Office in 17 separate init !3] decisions.

4. On August 3, 1981, at approximately ll

a.m. Eastern Daylight Time (EDT), President

Reagan, after stating that an air traffic

controller strike was in progress, announced

that if air traffic controllers did not

report for duty within 48 hours, they would

"have forfeited their jobs and will be

terminated." 17 Weekly Comp. Pres. Do. 845

(1981).

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5. The presiding official found that the

agency would not allow a controller to return

to duty after his deadline shift. Therefore,

he did not make any findings as to whether

appellant was striking or AWOL after his

deadline shift even though charged in the

removal notice to the date of the notice

which in some instances included later dates.

We have found no reason to disturb the

presiding official's findings that the agency

proved the charges as to each appellant on at

least one date charged. Therefore, we need

not consider additional dates. See Baracco

v. Department of Transportation, MSPB Docket

No. DCO7528i1F0895 at 5 (April 25, 1983).

6. Appellants list the factors set out in

Douglas v. Veterans Administration, 5 MSPB

313, 332-333 (1981).

7. Appellants do not allege any prohibited

personnel practice described in 5 USC §

2302(b).

8. See the records in Abbott (Boeing Tower)

v. Department of Transportation, MSPB Docket

No. SE0O075281F0625, Master File, Tab l,

Stipulation No. 38; Babcock (Sea-Tac Tower)

v. Department of Transportation, MSPB Docket

no. SE075281F0637, Master File, Tab 3,

Stipulation No. 38; Cady (Troutdale Tower) v.

Department of Transportation, MSPB Docket No.

SE075281F0445, Master File, Tab 4,

Stipulation No. 42.

9. Such issues include the denial of

pretrial motions, the exclusion of certain

evidence offered by appellants, the denial of

trial motions and motions in limine, and

exceptions to evidentiary rulings.

ee ee

4

F

9

:

A-43

10. The Board has resolved the remaining

issues raised by appellants in their

petitions for review in the following cases:

Ketcham v. Department of Transportation, MSPB

Docket No. DA0O7528iF0713 at 9 (May 28, 1982),

motion for clarification denied (November 23,

1982) (official notice of the existence of an

unlawful strike); Noa v. Department of

Transportation, MSPB Docket No. NY075281F0697

at 12-13 (April 25, 1983) (concerted action

for purposes of strike participation and

strike continuation); Schapansky, Supra, at

7-8 (invocation of 5 USC § 7513(b)(1) to

shorten the notice period); Anderson, supra,

at 8-13 (meaningful opportunity to reply to

removal notice); Baracco, Supra, at 8-9

(response required "within" 7 calendar days).

ll. The record reflects that 33 appellants

did not contact the agency after they failed

to appear for their deadline shifts.

Appellants Richard E. McVay, Thomas O.

Miller, and Larry A. Parker called the

facility but not to request to return to

work. See mcVay Skeleton file, Tab 5; Miller

Skeleton file, Tab 5. I.D. 78 n.94.

12. Appellant's first notice of proposed

removal dated August 10, 1981, was later

rescinded. Appellant was issued a second

notice dated September 15. The decision to

remove letter dated October 5 notified

appellant that he was to be removed October

15, 1981.