Des Vignes v. Department of Transp., F.A.A.

• Decision Date: 02 May 1986
• Docket Number: No. 85-1111,85-1111
• Citation: 791 F.2d 142
• Parties: Harold J. DES VIGNES, Petitioner, v. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 142

791 F.2d 142

Harold J. DES VIGNES, Petitioner, v. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, Respondent.

Appeal No. 85-1111.

United States Court of Appeals Federal Circuit.

May 2, 1986.

Andrew Mead von Salis, of Solerwitz & Leeds, Mineola, N.Y., for petitioner.

Sandra P. Spooner, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., for respondent. With her on the brief were Richard K. Willard, Acting Asst. Atty. Gen. and David M. Cohen, Director. Of counsel was Diane R. Liff, Office of the General Counsel, Dept. of Transp., Washington, D.C.

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

PER CURIAM.

Harold J. Des Vignes appeals from a decision of the Merit Systems Protection Board (board), affirming his removal from his position as an air traffic controller because of his participation in an illegal strike and absence from his position without authorization.

We affirm and impose a sanction on counsel.

BACKGROUND

Des Vignes was removed from employment as an air traffic controller at the Houston Air Route Traffic Control Center in Houston, Texas. He appealed to the Dallas Regional Office of the MSPB, which held a hearing. ¹

On January 3, 1983, the presiding official issued an initial 32-page decision affirming the FAA's action. ² The presiding official found that the strike continued through at least August 6, 1981, that Des Vignes was scheduled to work on August 5, 6, 7 and 8, 1981, that his deadline shift began at 4:00 p.m. on August 5, 1981, and that he did not report for any of his scheduled shifts. The agency presented watch schedules reflecting when Des Vignes was scheduled to work, personnel sign-in logs, and his time and attendance record. That evidence indicated that Des Vignes had failed to report for work when scheduled, beginning on August 3, 1981 and thereafter, and that he was absent without leave during the period August 3 through August 8. The agency also presented the testimony of Des Vignes' facility chief, Mr. Arnold E. Price.

The presiding official properly concluded, citing authority, that the agency had presented prima facie proof that Des Vignes had participated in a strike against the United States. Des Vignes did not testify, but elected to rest after presentation of FAA's evidence. Des Vignes' counsel raised various legal arguments, all of which the presiding official properly rejected. Accordingly, the presiding official concluded and the board agreed that the agency had proven by a preponderance of the evidence, that Des Vignes had participated in the strike and was absent without leave.

The full board granted Des Vignes' request for review and, on October 3, 1983, affirmed the initial decision. 17 M.S.P.R. 479.

ISSUES

(1) Whether the board's decision is reversible.

(2) Whether this appeal is frivolous.

(3) Whether Des Vignes' counsel has abused the judicial process.

OPINION

(1) Board Decision

Des Vignes has submitted absolutely nothing that could remotely indicate that the board decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. Because Des Vignes has made no showing whatever that the board decision suffers one of those defects, we cannot reverse it. 5 U.S.C. Sec. 7703(c). Weston v. U.S. Department of Housing and Urban Development, 724 F.2d 943 (Fed.Cir.1983). Accordingly, the decision appealed from must be affirmed.

(2) The Appeal is Frivolous

Des Vignes' counsel has persisted in filing and maintaining this appeal despite the clear, unambiguous, dispositive holdings of this court. Every issue counsel raises is either itself frivolous or is foreclosed by decisions that no reasonable attorney could expect to be overturned, modified, or withdrawn on the present record.

Des Vignes' counsel devotes ten pages of his brief to a contention that this court's suspension of proceedings pending the board's resolution of certain cases denied Des Vignes due process, yet cites no legal precedent to support that attack upon this court's exercise of its discretion to manage its docket. The suspension is supported by the doctrine of primary jurisdiction. See, e.g., Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 306, 93 S.Ct. 573, 582, 34 L.Ed.2d 525 (1973); United States v. Western Pacific Railroad Co., 352 U.S. 59, 62-70, 77 S.Ct. 161, 164-68, 1 L.Ed.2d 126 (1956); Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952). It was based as well on precedents of this court and on common sense. See, e.g., Oceanic Steamship Co. v. United States, 586 F.2d 774, 793-94, 218 Ct.Cl. 87 (1978); Seaboard Airline Railroad Co. v. United States, 387 F.2d 651, 656, 181 Ct.Cl. 719 (1967); McLean Trucking Co. v. United States, 387 F.2d 657, 660-61, 181 Ct.Cl. 170 (1967).

In Des Vignes' reply brief, counsel asserts that every petitioner has a right to present the facts of his case to the board and to this court. No petitioner has been denied that right. Access to the courts is a fundamental right, yet nothing in the cases cited by Des Vignes' counsel even remotely suggests that Des Vignes has been denied access, or that courts may not manage their dockets to prevent duplicative and unjustified litigation. Similarly, the assertion that 28 U.S.C. Sec. 2072 has been violated rests solely on an unsupported, unsupportable, conjectural, and conclusory assertion that this court's suspension of proceedings denied Des Vignes a proper hearing.

Finally, counsel's bald assertion, unsupported by any reference to the record or to evidence of distinguishing facts, that the precedents of this court are immaterial and distinguishable from this case, is not only without merit, but professionally reprehensible. Counsel has not shown any facts that distinguish the present appeal from the fact patterns in this court's earlier decisions. It is not true that a petitioner has a right to require the court to repeatedly decide the same issues on the same facts.

Des Vignes' attack on the propriety of the board's consolidation of his appeal with those of others is baseless and in disregard of the rule that management of the board's docket is a matter within the board's discretion. REA Express, Inc. v. United States, 568 F.2d 940, 950 (2nd Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978). Des Vignes makes no reference at all to facts relevant to this case, nowhere indicates that he objected below, and does not even allege that the factors governing consolidation militate against it here. See, e.g., Dorrance v. Department of Transportation, FAA, 735 F.2d 516, 519 (Fed.Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 432, 83 L.Ed.2d 358 (1984); Moylan v. Department of Transportation, FAA, 735 F.2d 524, 525 (Fed.Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 432, 83 L.Ed.2d 358 (1984); In re Air Crash Disaster at Florida Everglades, 549 F.2d 1006, 1013-14 (5th Cir.1977).

Des Vignes' unsupported contention that the agency was motivated by revenge is unworthy of comment. See Schapansky v. Department of Transportation, FAA, 735 F.2d 477, 483-84 (Fed.Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 432, 83 L.Ed.2d 358 (1985). His attack on the drawing of an adverse inference from refusal of air traffic controllers to testify was rejected in Adams v. Department of Transportation, FAA, 735 F.2d 488, 492 (Fed.Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 432, 83 L.Ed.2d 358 (1984). His argument that federal employees have a constitutional right to strike disregards the statute, 5 U.S.C. Sec. 7311(3); 18 U.S.C. Sec. 1918, and contrary precedent. See United States v. Taylor, 693 F.2d 919 (9th Cir.1982); United States v. Haggerty, 528 F.Supp. 1286 (D.Colo.1981); United Federation of Postal Clerks v. Blount, 325 F.Supp. 879 (D.D.C.), aff'd mem., 404 U.S. 802, 92 S.Ct. 80, 30 L.Ed.2d 38 (1971). His bare allegation that his union activity short of striking was the basis for charges against him was rejected in Schapansky, 735 F.2d at 482-83. His contention that the notice period was improperly reduced under the "crime exception" of 5 U.S.C. Sec. 7513 was rejected in Schapansky 35 F.2d at 486, and in Novotny v. Department of Transportation, FAA, 735 F.2d 521, 523 (Fed.Cir.1984). His assertion that notice to reply "within seven (7) days" violated 5 U.S.C. Sec. 7513(b)(2) was rejected in Adams, 735 F.2d at 490 n. 3. His contention that the agency should have sent him personal copies of materials relied upon by the agency was rejected in Novotny, 735 F.2d at 523. His contention that notice was insufficient was rejected in Adams, 735 F.2d at 491, and in Anderson v. Department of Transportation, FAA, 735 F.2d 537, 539-40 (Fed.Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 432, 83 L.Ed.2d 358 (1984). His assertion that he was removed for failing to return to work within the 48 hour grace period was rejected in Anderson, 735 F.2d at 540. His contention that the harmful error rule should not be applied to procedures required by statute was rejected in Adams, 735 F.2d at 490 n. 3., and that rejection was reaffirmed in Handy v. Postal Service, 754 F.2d 335, 337 (Fed.Cir.1985). His argument that nexus is lacking between his conduct and the efficiency of the service was rejected in Schapansky, 735 F.2d at 484, as was his contention that removal is too harsh for strike participation, id. at 484-86. His contention that prima facie proof of strike participation must include more than proof of unauthorized absence during a strike of general knowledge was rejected in Schapansky, id at 482-84. His assertion that hearsay evidence can never constitute prima facie proof was rejected in Campbell v. Department of Transportation, FAA, 735 F.2d 497, 502 (Fed.Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 247, 83 L.Ed.2d 185 (1984). His argument that...