DiMasso v. Department of Transp., F.A.A.

Decision Date18 May 1984
Docket NumberNo. 83-1158,83-1158
Citation735 F.2d 526
Parties118 L.R.R.M. (BNA) 2429 Anthony L. DiMASSO, Petitioner, v. DEPARTMENT OF TRANSPORTATION, FAA, Respondent. Appeal
CourtU.S. Court of Appeals — Federal Circuit

Renee G. Mayer, Mineola, N.Y., for petitioner.

Diane R. Liff, Washington, D.C., for respondent.

J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director and Sandra Spooner, Washington, D.C., were on the brief, for respondent.

Before MARKEY, Chief Judge, FRIEDMAN, RICH, SMITH and NIES, Circuit Judges.

EDWARD S. SMITH, Circuit Judge.

Petitioner Anthony L. DiMasso (DiMasso) appeals from a decision of the Merit Systems Protection Board (board), affirming the decision of the Department of Transportation's Federal Aviation Administration (agency) to remove DiMasso from his position as air traffic controller specialist at the New York Air Traffic Control Center in Ronkonkoma, New York. We affirm.

Background

General background concerning the facts and issues arising from the agency's removal of air controllers who participated in an illegal strike is set forth in Schapansky v. Department of Transportation, 735 F.2d 477 (Fed.Cir.1984), and Adams v. Department of Transportation, 735 F.2d 488 (Fed.Cir.1984), issued this day. In DiMasso's case, DiMasso was on annual leave between August 2 and 9, 1981, and was scheduled to return to his 4 p.m. shift on August 9. When he failed to do so, the agency served him the next day with a notice of proposed removal, alleging participation in an illegal strike and absence without leave. DiMasso responded on August 13 and 14, 1981, requesting an extension of time, excepting to application of the statutory crime provision, and requesting certain additional information. He did not, however, either at this point or subsequently in the proceedings, offer reasons or evidence for his failure to return to his scheduled shift on August 9. The agency removed DiMasso effective August 27, 1981, and he appealed to the board which in an initial consolidated decision by the presiding official dated October 14, 1982, affirmed the removals of all but one of the air controllers whose removals from the New York Air Traffic Control Center were considered. 1 DiMasso appealed to the full board which, in a final consolidated decision issued April 25, 1983, likewise affirmed his removal. 2 DiMasso now exercises his right to appeal to this court.

Issues

DiMasso has raised numerous issues before this court, including: (1) that the agency failed to sustain its burden of proof as to every element of the charges; (2) that the board erred in shifting the burden of persuasion once the agency had shown a prima facie case of strike participation; (3) that the agency introduced only hearsay evidence insufficient to make a prima facie case; (4) that the board erred in drawing an adverse inference from DiMasso's silence; (5) that the agency erred in applying an emergency suspension; (6) that the agency erred in allowing DiMasso less than 7 days to respond to the notice of removal; (7) that the penalty of removal did not promote the efficiency of the service; (8) that the penalty should be mitigated; (9) that the deadline shift rule created such confusion as to cause the agency's burden of proving strike participation to rise; (10) that the agency erred in failing fully to apprise DiMasso of his constitutional right against self-incrimination; and (11) that the President's edict and cabinet level orders to the proposing and deciding officials improperly influenced DiMasso's removal, causing harmful error. Except for the last two issues, this court has thoroughly considered and rejected those arguments in other cases decided today. 3 Those decisions control, and we address the remaining two issues here.

Opinion
1. Duty to Advise on Self-Incrimination

DiMasso contends that the agency committed harmful error by failing fully to apprise him of his constitutional right against self-incrimination under the fifth amendment. In support of such duty by the agency he cites a memorandum dated June 4, 1980, by then-Attorney General Benjamin Civiletti, outlining general guidelines for procedures in administrative investigations of certain employee misconduct and discussing the necessity for warnings on fifth amendment rights to prevent loss of evidence. Need for the memorandum arose, as it states in its first sentence, from "the need to coordinate with the Criminal Division [of the Department of Justice] certain actions that may impact adversely on the prosecution of criminal cases arising out of the same or parallel facts." Specifically, the Attorney General was concerned that improper agency procedures during administrative investigations of employee misconduct would result in statements and evidentiary leads arising from those investigations subsequently being held inadmissible as evidence in a criminal prosecution of that employee.

In DiMasso's situation, his opportunity to respond to a notice of proposed removal did not reach the level of a custodial interrogation. He was not compelled to give testimony as a quid pro quo for retaining his job; he was free to deny participation in an illegal strike but chose not to do so. Moreover, even if one were to assume that the Attorney General's memorandum was binding (which it was not), then the probable consequences of an agency's failing to follow that document would be felt not in these civil removal proceedings but in any subsequent criminal investigation. 4 We affirm the board in its rejection of DiMasso's position on the duty to advise.

2. Influence from Above

DiMasso also contends that the President's statement on August 3, 1981, that striking air controllers who had not...

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6 cases
  • Brockmann v. Department of Air Force, 92-3628
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 14 June 1994
    ...v. Department of the Treasury, United States Secret Service, 796 F.2d 430 (Fed.Cir.1986) (right to travel); DiMasso v. Department of Transportation, FAA, 735 F.2d 526 (Fed.Cir.1984) Neither the Civil Service Reform Act nor Navy v. Egan supports the government's position that if a federal em......
  • Kalicharan v. Dep't of Justice
    • United States
    • Merit Systems Protection Board
    • 20 July 2023
    ...was voluntary. The privilege against self-incrimination applies when testimony is compelled. See DiMasso v. Department of Transportation, 735 F.2d 526, 528 (Fed. Cir. 1984) (explaining that an employee's Fifth Amendment right against self-incrimination was not violated when he was not requi......
  • Campbell v. Department of Transp., F.A.A., 83-1173
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 18 May 1984
    ...President, who usurped responsibilities specifically delegated to the agency. See Schapansky, at 486-87; DiMasso v. Department of Transportation, FAA, 735 F.2d 526 at 528 (Fed.Cir.1984). 8. Petitioners were illegally constructively suspended. See Adams, at 9. Removal is not the mandatory mi......
  • Robinson v. Department of Transp., F.A.A., 85-988
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 31 July 1985
    ...of an indiscriminate "blast of procedural objections" substantially identical to that condemned in DiMasso v. Department of Transportation, FAA, 735 F.2d 526, 527 n. 3, 528 (Fed.Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 432, 83 L.Ed.2d 358 (1984), an authority blithely disregarded by Th......
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