Horner v. Burns
| Decision Date | 11 February 1986 |
| Docket Number | Nos. 85-2025,85-2308,s. 85-2025 |
| Citation | 783 F.2d 196 |
| Parties | 123 L.R.R.M. (BNA) 2114 Constance HORNER, Director, Office of Personnel Management, Petitioner, v. James F. BURNS, Keith T. Werts, and John W. Clarke, Respondents. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Eva Plaza, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for petitioner. With her on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Robert A. Reutershan and Sara V. Greenberg. Joseph A. Morris, General Counsel and Carrol H. Kinsey, Jr., O.P.M., Washington, D.C., of counsel.
Paul Drachler, Gibbs, Douglas, Theiler and Drachler, Seattle, Wash., argued for respondents Burns and Werts. With him on the brief was Samuel J. Imperati, Aitchison, Imperati, Paull, Barnett and Sherwood, Portland, Oregon, Harry D. Shargel, Philadelphia, Pa., for respondent John W. Clarke.
Marsha E. Mouyal, Reviewer for Litigation, Merit Systems Protection Board, Washington, D.C., argued for intervenor. With her on the brief were Evangeline W. Swift, General Counsel and Mary L. Jennings, Associate General Counsel for Litigation.
Before FRIEDMAN, BENNETT, and BISSELL, Circuit Judges.
This petition to review, filed by the Director of the Office of Personnel Management (Director), challenges two orders of the Merit Systems Protection Board (Board) denying the Director's request that the Board reconsider and reopen its decision in three cases in which it mitigated the penalties imposed upon an employee. We affirm in two of those cases and dismiss the appeal in the third case for lack of jurisdiction.
These cases grow out of the August 1981 illegal strike by the air traffic controllers. The Federal Aviation Administration (Administration) removed the three individual respondents from their positions as air traffic controllers for participating in the strike on a specified day and being absent without leave on that day. Each of the controllers appealed his removal to the Board. In each case, the presiding official held (1) that the Administration had not shown that the controller had participated in the strike on the day in question, because it had not established that the strike continued until that date, (2) that the agency had proven the charge of absence without leave on that date, and (3) that the absence-without-leave finding was sufficient to sustain the removal.
The case involving the respondent Burns was a consolidated case involving 39 air traffic controllers. In that case the presiding official further held that the agency improperly had constructively suspended four other air traffic controllers and directed the Administration to cancel those suspensions.
Each of the three individual respondents filed with the Board petitions to review the presiding official's decision. They contended, among other things, that removal was too harsh a penalty for one day's absence without leave. Respondent Burns was one The Administration did not file cross-petitions challenging the presiding official's determination that the three controllers had not been strikers. In the consolidated appeal involving Burns, however, the Administration filed a cross-petition challenging the presiding official's ruling that the agency improperly had constructively suspended four of the controllers.
of the appellants in a consolidated appeal raising a number of issues.
In a footnote in its opposition to the petition for review in the consolidated case and also in Werts' case, the Administration stated that the presiding official's determination that Burns and Werts had not been strikers was The Administration did not refer to the striking issue in its opposition to respondent Clarke's petition for review.
The Board granted Burns' and Werts' petitions for review and reopened Clarke's case after having initially denied review. Applying the factors relating to mitigation of penalties announced in Douglas v. Veterans Administration, 5 MSPB 313, 5 M.S.P.R. 280 (1981), the Board mitigated the penalty of removal for the one day's absence without leave to a 60-day suspension. The Board refused to consider the Administration's contention that the presiding official improperly had held that Burns and Werts were not strikers, because the Administration had not challenged that finding in its cross-petition for review in the consolidated case and had not filed a cross-petition for review in the case involving Werts. The Board stated that under its decision in Jackson v. Department of Transportation, 5 MSPB 95, 5 M.S.P.R. 12 (1981), it "will only consider issues raised by a party in a timely filed petition for review under 5 C.F.R. Sec. 1201.114." Ackley v. Department of Transportation, 17 M.S.P.R. 243 (1983) (consolidated case); Werts v. Department of Transportation, 17 M.S.P.R. 413 (1983); and Clarke v. Department of Transportation, 20 M.S.P.R. 422 (1984).
Pursuant to 5 U.S.C. Sec. 7703(d) (1982), the Director filed with the Board petitions for reconsideration. In a single petition covering the Burns and Werts cases, the Director sought reconsideration on the grounds that the Board had erred (1) in determining that removal was an unreasonable penalty for the appellees' absence without leave and in mitigating the removal to a 60-day suspension, and (2) in refusing to review the presiding official's decision on the striking charge. In the petition in the Clarke case the Director sought reconsideration only of the mitigation of the penalty (and of another ruling not here involved). With respect to the striking issue, the Director requested the Board merely to reopen the case and to "correct the erroneous finding of the Presiding Official on the duration of the strike."
The Board denied reconsideration in the Burns and Werts cases in a single opinion. Burns v. Department of Transportation, 22 M.S.P.R. 388 (1984). The Board held that, with respect to the two issues on which the Director sought reconsideration, the Board's decision did not involve an alleged error "in interpreting a civil service law, rule, or regulation," which under 5 U.S.C. Sec. 7703(d) is the only ground upon which the Director may seek Board reconsideration. The Board stated that, contrary to the Director's contention, the presiding officials' "unreviewed findings regarding the strike charges" would not have a "substantial impact" upon civil service laws, rules, regulations, and policies because "the presiding official's initial decision is not precedential." (Citation omitted.)
The Board also refused to reconsider the strike participation ruling because of its decision in Jackson that "absent just cause shown, ... it will not consider issues on review from an initial decision unless [those] issues are raised in a timely filed petition for review." The Board held that since the Administration "without just The Board subsequently denied the Director's petition for reconsideration in Clarke on the basis of its decision in Burns. Clarke v. Department of Transportation, 24 M.S.P.R. 456 (1984). It pointed out that the Director's petition for reconsideration in Clarke "solely concerned the Board's application of the Douglas [mitigation] criteria to the present appeal."
cause" had failed so to raise the issue, "in the interest of administrative finality" it would not reopen the cases.
The Board also refused to reopen the Clarke case on the ground that
[a]lthough the presiding official's finding on strike participation is arguably in conflict with Adams v. Department of Transportation, 735 F.2d 488 (Fed.Cir.1984), the agency failed, without just cause, to raise the issue in a timely filed petition for review in accordance with Board regulations. Therefore, in the interest of administrative finality, the Board declines to reopen this appeal. See Burns v. Department of Transportation, supra.
In granting the Director's petition for review of the Board decisions, we limited review to two questions:
Review is limited to the Board's refusal to review the presiding official's finding in the absence of a cross-petition for review, and the Board's denial of reconsideration on the ground that the presiding official's decision was nonprecedential.
Under 5 U.S.C. Sec. 7703(d), the Director may obtain judicial review by this court (if the court authorizes review) of any final Board order or decision "if the Director determines, in his discretion, that the board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive." The statute further provides that "[i]f the Director did not intervene in a matter before the board, the Director may not petition for review of a board decision under this section unless the Director first petitions the board for a reconsideration of its decision, and such petition is denied."
Since the Director did not intervene in the appeals to the Board (although copies of the initial decision were served upon him and he was notified of his right to petition for review), * he was required to seek reconsideration by the Board before he could appeal to this court. He sought reconsideration, but the Board denied it.
The Director contends that the Board improperly denied reconsideration. Under our limited grant of review, the validity of the Board's action in denying reconsideration turns upon two questions: (A) Whether the Board justifiably refused to review the presiding officials' determinations that the controllers were not strikers, because the Administration had not raised that issue in a petition or cross-petition for review with the...
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