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

• Decision Date: 18 May 1984
• Docket Number: No. 83-1153,83-1153
• Citation: 735 F.2d 537
• Parties: 117 L.R.R.M. (BNA) 2239 Kipp ANDERSON, et al., * Petitioners, v. DEPARTMENT OF TRANSPORTATION, FAA, Respondents. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 537

735 F.2d 537

117 L.R.R.M. (BNA) 2239

Kipp ANDERSON, et al., ^* Petitioners, v. DEPARTMENT OF TRANSPORTATION, FAA, Respondents.

Appeal No. 83-1153.

United States Court of Appeals, Federal Circuit.

May 18, 1984.

Thomas H. Bornholdt, Overland Park, Kan., argued for petitioners.

Robert A. Reutershan, Washington, D.C., argued for respondent. With him on the brief were J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, and Sandra P. Spooner, Asst. Director, Washington, D.C., Diane R. Liff, Asst. Gen. Counsel for Litigation, Dept. of Transp., Washington, D.C., of counsel.

Stephen C. Cooper and Steven Z. Cohen, Southfield, Mich., were on the brief for amicus curiae in support of petitioners.

Edward J. Hickey, Jr., Gen. Counsel, Public Employees Dept. AFL-CIO, Washington, D.C., was on the brief as amicus curiae in support of petitioner.

H. Craig Becker, Washington, D.C., was on the brief as amicus curiae in support of petitioner.

Mitchell Notis, Staff Counsel, American Federation of Government Employees, Washington, D.C., was on the brief as amicus curiae in support of petitioners.

Marci B. Seville, Burton F. Boltuch and Jonathan H. Siegel, of counsel, Oakland, Cal., was on the brief as amicus curiae in support of petitioners.

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

NIES, Circuit Judge.

The petitioners of this appeal are former air traffic controllers employed at Olathe Route Air Traffic Control Center (ARTCC) in Olathe, Kansas. As in the related cases decided today, petitioners seek reversal of a decision by the Merit Systems Protection Board (board) upholding the adverse actions taken by the Department of Transportation's Federal Aviation Administration against each of the petitioners.

The petitioners here raise numerous issues which have been treated in other opinions issued today, including:

1. The agency failed to make a prima facie case of the charge of striking and erred in shifting the burden to each petitioner to prove he was not striking. See Schapansky v. Department of Transportation, FAA, 735 F.2d 477 at 482-84 (Fed.Cir.1984).

2. The deadline shift rule created confusion with respect to individual deadlines 3. Actions by the President and high administration officials were unlawful and deprived petitioners of a meaningful opportunity to reply. See DiMasso v. Department of Transportation, FAA, 735 F.2d 526 at 528 (Fed.Cir.1984).

                and rebuts the prima facie case that an individual was striking.    See Adams v. Department of Transportation, FAA, 735 F.2d 488 at 490-92 (Fed.Cir.1984)
                

4. Petitioners were unlawfully suspended and improperly required to show that they were ready, willing and able to return to work. See Adams, at 492-93 (Fed.Cir.1984). (Of petitioners in this appeal, only Kolody was found to have been wrongfully suspended.)

5. The agency failed to take all factors into consideration in imposing penalty. See Schapansky, at 484-485.

6. Implementation of deadline shift rule resulted in disparate treatment. See Schapansky, at 485.

The record in this appeal requires further consideration of the second issue listed above, i.e., confusion created by the deadline shift rule. An amicus brief was filed on this issue and, unlike the Adams case, individual controllers here testified concerning their confusion. In addition, several petitioners raise issues dependent on the special circumstances of their individual situations.

I

As an initial matter, we hold that substantial evidence, as detailed in the presiding official's decision and affirmed by the board, establishes that the strike continued at the Olathe ARTCC at least through August 12, 1981.

II Confusion Over Deadline

On August 3, 1981, at 7:00 a.m. E.D.T. the Professional Air Traffic Controllers Organization (PATCO) called upon its members to participate in a nationwide strike against the FAA. After the strike began, each of the petitioners was sent a telegram which stated:

AN ILLEGAL STRIKE IS IN PROGRESS. PARTICIPATION IN A STRIKE CAN RESULT IN SEVERE DISCIPLINARY ACTION, INCLUDING REMOVAL AND POSSIBLE CRIMINAL PENALTIES. ANY UNAUTHORIZED ABSENCE FROM THE FACILITY WHEN SCHEDULED OR DIRECTED TO REPORT FOR DUTY INDICATES THAT SUCH PERSONS ARE PARTICIPATING IN THE STRIKE. ALL CONTROLLERS ARE TO REPORT FOR DUTY FOR THEIR SCHEDULED SHIFTS UNLESS DIRECTED OTHERWISE BY FACILITY MANAGEMENT.

The public announcement by the President on August 3, 1981, at 11:00 a.m. E.D.T. stated, in part:

I must tell those who failed to report for duty this morning they are in violation of the law and if they do not report for work within 48 hours they have forfeited their jobs and will be terminated.

The agency implemented the President's 48-hour deadline by sending a notice of proposed removal to each controller who failed to report for duty at the first shift to which the controller was directed or regularly scheduled to report after 11:00 a.m. (E.D.T.) August 5, 1981.

None of the petitioners of this appeal ever again reported for duty at the Olathe ARTCC (except Kolody) and none of them called the facility to explain their absence.

The petitioners here argue that they thought they were fired as of the 11:00 a.m. (E.D.T.) deadline, and this "prevented controllers who otherwise would have returned to duty from so returning in a timely fashion." While phrased somewhat differently, this is, in essence, the argument characterized in Adams, at 490, as "disingenuous." It does not change its nature Contrary to petitioners' argument, the grace period granted by the President did not relieve controllers of all obligations to their employer during the grace period. Thus, petitioners' premise that the controllers were fired only for their failure to report for their deadline shift, and not for conduct prior thereto, is false. Manifestly, confusion as to the deadline shift cannot excuse anyone's failure to report when scheduled before the deadline.

by virtue of testimony of individual controllers that they were confused. No steps were taken by these individuals to clear up any ambiguity as to their individual final deadlines. Petitioners say their inaction should be excused because, had they contacted the center to clear up any ambiguity about their deadline, they would have been ordered to come in before their deadline. In petitioners' view, it follows that the Government was obligated to contact each petitioner to clear up any ambiguity.

Amicus' reliance on Olshock v. Village of Skokie, 411 F.Supp. 257 (N.D.Ill.), aff'd, 541 F.2d 1254 (7th Cir.1976), (Wood, J., dissenting) is misplaced as authority for its argument that discharges under the deadline shift rule are not in conformity with constitutional rights. In Olshock, the governmental authority attempted to justify the disparate punishments, discharge vis-a-vis suspension, meted out to striking policemen. The Government argued that the punishment depended on whether a policeman returned to duty before or after a July 13 deadline. In rejecting that defense on the facts and holding that the difference could only be attributed to other reasons, the court noted, inter alia:

Nowhere does the record or the findings indicate that the discharged men were advised by anyone that July 13 was a crucial deadline between future professional life and death.

Unlike the Skokie policemen, the controllers here were treated evenly. And most importantly, none of the petitioners here assert that they were unaware of a deadline to the grace period. Their purported confusion was only that it was somewhat later than 11:00 a.m. E.D.T. on August 5.

With respect to the argument that notice was required to prevent deprivation of part of their grace period, this position was rejected in Adams, at 492:

Having disregarded the initial 48 hours 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. There is nothing whatever of record to indicate that any petitioner would have returned or had any interest whatever in returning to work at the time of his next regularly scheduled shift.

In these appeals as well, the argument is simply an argument without factual support.

Lester E. Cooke, Jr.

Petitioner Cooke asserts that the board erred in ruling that he had not been denied an opportunity to present an oral reply to the notice of removal, and that, in any event, such denial would not have constituted a harmful error. Petitioner Cooke testified that a call was made to him, scheduling his oral reply for 9:15 a.m. and that he showed up no later than that time only to learn that his reply time had been commenced at 9:00 a.m. and was concluded. A union representative had, however, appeared on his behalf at 9:00 a.m. The FAA refused to schedule another time to hear his oral reply. Mr. Cooke stated that only then did he agree to permit the presentation made by the union representative to constitute his oral reply, rather than presenting none. He testified that if he had been afforded a reply he would have raised the defenses considered by the presiding official at the subsequent hearing, i.e., that he was confused as to his individual deadline; that he was fearful about returning to the facility because he had seen a controller hauled off in schackles in South Carolina by law enforcement officers; and because he was afraid for the flying public and could not in good conscience The agency submitted a document signed by an agency employee, C.B. Hooper, which indicates that Mr. Hooper contacted petitioner Cooke on August 15, 1981, and scheduled his oral reply for August 18, 1981, at 9:00 a.m. The presiding official found that petitioner Cooke had actual notice of the time of his oral reply. Considering the record as a whole, it cannot be said that substantial evidence does not support this finding.

perform his duties. These arguments were made by other pet...