United States v. PROFESSIONAL AIR TRAF. CON. ORG.(PATCO), 916

• Decision Date: 10 December 1970
• Docket Number: No. 916,Docket 34968.,916
• Citation: 438 F.2d 79
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO), its officers, agents, servants, members, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

438 F.2d 79 (1970)

UNITED STATES of America, Plaintiff-Appellant, v. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO), its officers, agents, servants, members, et al., Defendants-Appellees.

No. 916, Docket 34968.

United States Court of Appeals, Second Circuit.

Argued July 15, 1970.

Decided December 10, 1970.

Certiorari Denied April 19, 1971.

William D. Ruckelshaus, Asst. Atty. Gen., Washington, D. C. (Carl Eardley, Deputy Asst. Atty. Gen., Washington, D. C., Edward R. Neaher, U. S. Atty., Brooklyn, N. Y., Alan S. Rosenthal and Robert E. Kopp, Attys., Dept. of Justice, Washington, D. C., on the brief), for plaintiff-appellant.

James M. Catterson, Jr., Port Jefferson, N. Y. (Catterson & Nolan, Port Jefferson, N. Y., on the brief), for defendants-appellees in No. 34968.

Murray Gartner, New York City (Herbert Prashker, A. Thomas Hunt, Poletti Freidin Prashker, Feldman & Gartner, New York City, on the brief), for plaintiff-appellant in No. 35072.

Nicholas Scoppetta, New York City (Marvin B. Segal, Segal & Hundley, New York City), for defendants-appelles.

Before WATERMAN, MOORE and HAYS, Circuit Judges.

Certiorari Denied April 19, 1971. See 91 S.Ct. 1373.

HAYS, Circuit Judge:

I.

On March 25, 1970, commencing at 8:00 a. m., large numbers of air traffic controllers, employees of the Federal Aviation Administration (FAA), absented themselves from their work. The air traffic controllers reported that they were ill or gave other reasons for their absences. A number of applications were made to the federal courts for injunctions against the employees. The present appeal arises out of such an application by the United States in the United States District Court for the Eastern District of New York against the Professional Air Traffic Controllers Organization (PATCO), its officials and several hundred aircraft controllers. The district court issued a preliminary injunction which enjoined the air traffic controllers from "in any manner continuing, encouraging, ordering, engaging, aiding or taking any part in any strike, work stoppage or slowdown or any interference with or obstruction to the movement or operation of any aircraft. * * *"

Paragraph III of the injunction provides:

"That the Federal Aviation Administration be and it hereby is directed until further order of this court:

(a) To restore all defendants in the action who have returned to work to the performance of the duties to which they were assigned prior to March 25, 1970, not later than May 18, 1970.

(b) To withhold any further administrative actions in respect of suspensions, removals or any other sanctions based upon the alleged work stoppage between March 25, 1970 and April 14, 1970, against any employees who are defendants in these actions and subject to the temporary injunction issued by this court."

The United States appeals paragraph III of the injunction barring the FAA from taking any disciplinary action against the aircraft controllers who participated in the work stoppage.

We have jurisdiction to hear this appeal under 28 U.S.C. § 1292(a) (1) (1964).

We conclude that the order contained in paragraph III of the injunction must be vacated.

II.

The FAA has the power to discipline its employees without judicial interference. In McTiernan v. Gronouski, 337 F.2d 31, 34 (2d Cir. 1964), this court noted the "limited permissible scope of judicial review in this area" and said:

"The taking of disciplinary action against government employees, including the invocation of the sanction of dismissal, is a matter of executive discretion, and is subject to judicial supervision only to the extent required to insure `substantial compliance with the pertinent statutory procedures provided by Congress,\' * * * and to guard against arbitrary or capricious action * * *."

The FAA is directed by statute to perform a specific task, requiring administrative expertise, in a manner consistent with the public interest. 49 U. S.C. § 1348 (1964). It is for the FAA, not the courts, to gauge the need for and the effect of disciplinary action when an unlawful work stoppage occurs.

"It is not the business of courts to substitute their untutored judgment for the expert knowledge of those who are given authority to implement the general directives of Congress." Air Line Pilots Ass\'n. v. Quesada, 276 F. 2d 892, 898 (2d Cir. 1960).

No proper ground is suggested for holding that the action of the FAA in disciplining its employees could be considered arbitrary or capricious. Discipline based upon the finding that the employees' work stoppage was unlawful is clearly within the power of the administrative agency. If the agency's action in any individual case should prove to be arbitrary or capricious it would be subject to administrative and eventually judicial review. See Norton v. Macy, 135 U.S.App.D.C. 214, 417 F.2d 1161 (1969).

Appellees' argument that the court was justified in prohibiting the FAA from disciplining its employees because of the possibility that the controllers were entitled to various procedural protections which do not presently exist in FAA regulations is wide of the mark. The FAA's procedures for discipline of its employees have nothing to do with the question that was before the court — whether the controllers were engaged in an illegal work stoppage and if so, whether they should be enjoined from acting in concert to continue that stoppage. Moreover, the nature of the prohibition against the FAA demonstrates that the trial court was not concerned with the general issue of procedural fairness.¹ The order protects only participants in the work stoppage. All other employees (including participants in the work stoppage charged with independent violations) are subject to disciplinary action. If the issue of procedural fairness were properly before the court its order would have halted all FAA discipline of employees. Or the trial court could have simply required that the procedural protections be afforded to all disciplined employees.

III.

Appellees further contend that paragraph III of the injunction is necessary to protect the court's jurisdiction over the action before it, citing 28 U.S.C. § 1651 (1964), and to preserve the "status quo" pending a final determination of the dispute. Although two of our sister circuits have been persuaded by this rationale in affirming substantially similar actions taken by district courts, United States of America v. Plasch, (7th Cir. July 10, 1970); United States of America v. Moore, 427 F.2d 1020 (10th Cir. June 8, 1970) (but see dissenting opinion of Breitenstein, C.J.); we respectfully decline to follow their lead.

No action taken by the FAA against any of the individual defendants in this case would have a detrimental effect on the court's jurisdiction. See 6 Moore's Federal Practice ¶ 54.105 (1966 ed.). The court will continue to have subject matter jurisdiction and will retain personal jurisdiction over the defendants. Disciplinary action by the agency will not impair the ability of the court to make a proper decision as to whether a permanent injunction should be granted, if called upon to do so.

Section 1651 cannot be used to allow a court to deal "with a matter lying wholly outside the issues in the suit." DeBeers Mines Ltd. v. United States, 325 U.S. 212, 220, 65 S.Ct. 1130, 1134, 89 L. Ed. 1566 (1945).

IV.

5 U.S.C. § 7311 (Supp. V. 1965-69) provides in pertinent part:

"An individual may not accept or hold a position in the Government of the United States * * * if he —

* * * * * *

(3) participates in a strike, or asserts the right to strike, against the Government of the United States * * *."²

The trial court determined that the government had proven a prima facie case of an illegal work stoppage. In spite of the statute it enjoined the FAA from taking any disciplinary action against the defendants based upon the work stoppage.³ Paragraph III obviously flies in the face of the statute. It must be vacated.

WATERMAN, Circuit Judge (dissenting):

I respectfully dissent.

As noted by my brothers, prior to the commencement of the two actions before us on this appeal, the first on March 30, 1970 and the second on April 1, 1970, an air traffic controller, one John F. Leyden, commenced a class action on December 10, 1969 in the Eastern District of New York on behalf of himself and all other similarly situated air traffic controllers employed by the FAA in the Eastern Region against the FAA and its Eastern Regional Director.¹ Leyden sought, inter alia, a preliminary injunction enjoining the Eastern Regional Director from acting as an appeals official in connection with suspensions² of the plaintiffs and enjoining the FAA from holding any hearing or inquiry regarding plaintiffs' appeals from disciplinary action unless seven specific procedural safeguards were afforded the plaintiffs. In that action, after the submission of affidavits, Judge Judd issued a preliminary injunction on August 5, 1970, restraining the Eastern Regional Director from acting as an appeals official in any disciplinary action involving any of the plaintiffs and restraining the FAA from interfering with the right of plaintiffs to record and transcribe proceedings before grievance examiners.³ On September 11, 1970, the Government answered Leyden's complaint, and on September 30 it filed a notice of appeal from the August 5, 1970 injunction order.

My brothers' essential mistake is in failing to realize that the preliminary injunctions in the present actions, which they would in part vacate, were molded, and properly so, in the light of the issues in the Leyden case which was then, and is now, pending before the same judge. The majority's contention that the "FAA's procedures for discipline of its employees have nothing to do with the question that was before the court * * *" is, I submit, incorrect. Judge Judd was primarily concerned, as one would think the Government would also be primarily concerned, in achieving "some...