Moylan v. Department of Transp., F.A.A.
| Decision Date | 18 May 1984 |
| Docket Number | No. 83-1150,83-1150 |
| Citation | 735 F.2d 524 |
| Parties | 118 L.R.R.M. (BNA) 2529 Stephen J. MOYLAN, * Petitioner, v. DEPARTMENT OF TRANSPORTATION, FAA, Respondent. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Robert M. Archer, Mineola, N.Y., argued for petitioner. With him on the brief were Lois Carter Schlissel and Ronald E. Sommer, Mineola, N.Y.
Lorraine B. Halloway, Washington, D.C., argued for respondent. With her on the brief was J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, and Sandra P. Spooner, 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.
Before MARKEY, Chief Judge, and FRIEDMAN, RICH, SMITH and NIES, Circuit Judges.
This is an appeal from a decision of the Merit Systems Protection Board (Board) affirming the Federal Aviation Administration's (agency's) decision to remove the petitioner from his job as an air traffic controller. We affirm.
Prior to August 3, 1981, the petitioner served as an air traffic controller at the New York Air Route Traffic Control Center at Ronkonkoma, New York. On August 3, 1981, the Professional Air Traffic Controllers Organization began a nationwide strike against the agency.
Petitioner Moylan did not appear for his scheduled shift on August 3. August 4 and 5 were his regular days off, and he again failed to appear on August 6. The record contains no evidence that the petitioner attempted to contact his supervisor to explain his absence. He was removed for striking and being absent without leave on August 3-6.
The petitioner appealed his removal to the Board, which affirmed the agency action.
The petitioner objects to his removal on several grounds: that the agency did not prove that he intended to strike or that he acted in concert with others; that the agency improperly shifted the burden of proof concerning strike participation; that the strike ended on August 5, 1981, so that the agency's decision to remove him for striking after that date was invalid; that the President improperly influenced the agency's deciding official; that the agency failed to follow statutory procedures in effecting petitioner's removal; that removal was too harsh a penalty for the offense; and that the Board prejudiced the petitioner's case by consolidating it with 79 other cases for hearing before the Board's presiding official.
Except for the last issue, this court has thoroughly considered and rejected these arguments in two other cases decided today. See Schapansky v. Department of Transportation, 735 F.2d 477, decided today; Adams v. Department of Transportation, 735 F.2d 488, decided today. Those decisions control here.
The only issue the petitioner raises that those cases did not decide is whether consolidation of the petitioner's case with those of 79 other air traffic...
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Exnicios v. United States
...that the government waived any possible objection to evidence by failing to object at its introduction); Moylan v. Department of Transportation, FAA, 735 F.2d 524, 525 (Fed. Cir. 1984). Plaintiff did not make a timely objection to the BOI's consideration of this evidence, although he had th......
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Des Vignes v. Department of Transp., F.A.A.
...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,......
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Schapansky v. Department of Transp., F.A.A.
...(strike for benefits) and have it too (escape removal when the strike fails by merely denying intent). In Moylan v. Department of Transportation FAA, 735 F.2d 524 (Fed.Cir.1984), also decided today, the amicus curiae argues that the Board's theory of proof announced in the present case deni......
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Rockwell v. Department of Transp., F.A.A., 85-1646A
...result of a consolidation is equally meritless. Rockwell did not object before the board to consolidation. In Moylan v. Department of Transportation, FAA, 735 F.2d 524 (Fed.Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 432, 83 L.Ed.2d 358 (1984), this court held that failure to object const......