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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 950

## Text

SEP 20 1986

wc

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

om

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.

A-41

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).

A-42

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0021%3A1. Public record. Not legal advice.