United States v. Robinson

• Decision Date: 05 October 1971
• Docket Number: No. 25993,26140.,25993
• Citation: 449 F.2d 925
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry E. ROBINSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Horace M. DISOTELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

449 F.2d 925 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Harry E. ROBINSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Horace M. DISOTELL, Defendant-Appellant.

Nos. 25993, 26140.

United States Court of Appeals, Ninth Circuit.

October 5, 1971.

Charles P. Flynn (argued), of Burr, Pease & Kurtz, Anchorage, Alaska, for defendants-appellants.

Douglas B. Baily, U. S. Atty. (argued), Anchorage, Alaska, for plaintiff-appellee.

Before BROWNING and CARTER, Circuit Judges, and BYRNE^*, District Judge.

BROWNING, Circuit Judge:

Appellants appeal convictions of criminal contempt for violating the terms of a preliminary injunction. We affirm.

On March 25, 1970, the United States filed a civil complaint in the court below against Professional Air Traffic Controllers Organization (PATCO), and individual officers and members of PATCO, including its president, appellant Robinson, and its secretary, appellant Disotell. The members of PATCO are air traffic controllers employed by the Federal Aviation Administration (FAA). The complaint¹ alleged that members of PATCO, including appellants, were engaging in an unlawful strike against the government of the United States² by absenting themselves from work under feigned claims of illness. Injunctive relief was sought.

An ex parte temporary restraining order issued March 31, 1970.³ Hearing on the government's motion for preliminary injunction was set for April 8.

On April 7 the government moved for an order requiring appellants (and other defendants) to show cause why they should not be held in contempt for violating the March 31 restraining order. The motion was based upon affidavits stating, in relevant part, that appellants Robinson and Disotell had failed to report for work on March 25 and March 28, respectively, and continuously thereafter; that Robinson had failed to furnish medical information indicating that he was sick; that Disotell had furnished inadequate medical information regarding his alleged sickness and had failed to furnish additional medical information thereafter though requested to do so.

An order to show cause issued on the government's motion. No hearing was held, however. Instead, the parties agreed to a stipulation that was approved by the court and filed on April 10. The stipulation provided, in substance, that air traffic controllers claiming to be sick would submit to a physical examination by court-appointed physicians who would communicate their findings to the court; that those controllers found capable of working would report to work, while those found to be sick would continue to comply with the preliminary injunction entered on the same day.⁴

In the meantime, the hearing on the government's application for preliminary injunction had been held on April 8, as scheduled, and on April 10 a preliminary injunction issued, supported by the following findings of fact, among others. In February 1970 PATCO advised the Secretary of Defense that on March 25, 1970, members of PATCO would commence withholding their services from FAA. Prior to March 25 absenteeism had averaged 4 per cent. On that date absenteeism increased sharply, reaching 30 per cent at some facilities. The increased absenteeism was "essentially unexcused and unexplained." Appellants were continually absent from work without leave from on or about March 25. The excessive absenteeism beginning March 25 was a direct result of a concerted effort by PATCO and others, including appellants, to purposely remain away from work and interfere with the air traffic control operations of FAA. It resulted in the impairment or termination of numerous FAA functions.

Based upon these findings, the court concluded that the defendants, including appellants, acting in concert, had participated since March 25 in a work slow down or stoppage constituting a strike, and that the concerted withholding of services had resulted in immediate and irreparable injury to the United States and its citizens.⁵

Two provisions of the preliminary injunction are particularly relevant to this appeal.⁶ Paragraph 1A restrained appellants from continuing to encourage or take part in the work stoppage or slow down. Paragraph 2C required appellants "to immediately notify their regular supervisor * * * of their mental and physical condition from March 24, 1970 to the present" and to furnish supporting medical data.

On April 14 the government filed a second order to show cause why defendants should not be held in contempt for violating the temporary restraining order and the preliminary injunction. This motion recited that it was "based on the affidavit attached to the Motion for Order to Show Cause filed by the plaintiff on April 7, 1970, and the allegations of the plaintiff that the defendants named herein have continued, and are continuing, to violate the provisions of paragraph 2A, 2B, 2C and 2E of the aforementioned preliminary injunction."

On the same day, April 14, the court entered an order to show cause returnable at 1:30 p. m. on April 15. The hearing began at that time and continued to April 16. On April 27 the court issued a memorandum and order finding appellants guilty of violating the preliminary injunction.

The court's memorandum included the following: On March 25 a large number of air traffic controllers failed to report for work, each telling his supervisor that he was "ill" and unable to work. By March 31, 91 of a normal complement of 295 controllers were absent from work in what had come to be known as a "sickout." As of April 27 the court had received medical reports relating to 82 of the air traffic controllers pursuant to the stipulation of April 10 (see note 4). The reports relating to 20 controllers reflected valid medical reasons for failure to report for work. The reports relating to the remainder, including appellants, reflected that they were not ill and were able to work.

Immediately after the filing of these orders on April 10, 55 or 60 of the air traffic controllers, including appellants, met. Subsequently all reported "ill" and unable to work; all requested doctor appointments. "It is not reasonable to conclude, in the light of the obvious concert of action under the leadership of the defendants," the court wrote, "that any bona fide good faith effort was made to comply with either the spirit of the Stipulation or the requirements of the Preliminary Injunction. It is also noted among other violations that the defendants did not report to their employer as per paragraph 2(c) of the Preliminary Injunction until after entry of the renewed order to show cause." The court found beyond a reasonable doubt that appellants were guilty of contempt for violation of the terms of the preliminary injunction.⁷ Each appellant was subsequently sentenced to 30 days' imprisonment and fined $300. The sentence of imprisonment was suspended.

Appellants' claim that the preliminary injunction was too vague to be criminally enforced is frivolous. Unlike the decree in International Longshoremen's Association, Local 1291 v. Philadelphia Marine Trade Ass'n, 389 U.S. 64, 74, 88 S.Ct. 201, 206, 19 L.Ed.2d 236 (1967), upon which appellants rely, this decree was not "an abstract conclusion of law," but rather "an operative command capable of `enforcement.'" The commands of the decree allegedly violated are stated in plain, direct English.

In its substance, however, this claim is a reassertion of another more substantial contention: that appellants were not given sufficient notice of the charge against them.

Rule 42(b) of the Federal Rules of Criminal Procedure provides that a nonsummary contempt proceeding shall be prosecuted on notice, and that the notice "shall state the essential facts constituting the criminal contempt charged." Appellants point out that the motion for an order to show cause stated that appellants had violated paragraphs 2A, 2B, 2C and 2E of the preliminary injunction without stating the facts constituting the violations; and that both the motion and the order to show cause stated generally that appellants had violated both the temporary restraining order and the preliminary injunction, without specifying the facts upon which this general charge rested. Appellants assert that such a notice fails to comply with Rule 42(b), citing Matusow v. United States, 229 F.2d 335, 347 (5th Cir. 1956).

We would agree, if no more appeared. Although the "simple notice" required by Rule 42(b) is to be judged with less strictness than a formal indictment or information (Bullock v. United States, 265 F.2d 683, 691 (6th Cir. 1959); see also United States ex rel. Bowles v. Seidmon, 154 F.2d 228, 230 (7th Cir. 1946)),⁸ due process as well as the rule require that it "contain enough to inform the alleged contemnor of the nature and particulars of the contempt charged." Yates v. United States, 316 F.2d 718, 723 (10th Cir. 1963)⁹ The generalizations in the motion and order referred to by appellants do not satisfy this standard.

There was more, however. In determining whether sufficient notice was given, the motion, affidavit, and order to show cause may be considered together in light of what transpired at the hearing. Yates v. United States, supra, 316 F.2d at 723. See also United States v. United Mine Workers, 330 U.S. 258, 296-297, 67 S.Ct. 677, 91 L.Ed. 884 (1947). As we have noted, the motion of April 14 incorporated by reference the affidavits attached to the motion of April 7, and alleged that the activity there described had continued. These affidavits stated in specific terms that appellants had failed to report for work each day after a date specified, and had failed to furnish medical information justifying their claims of illness.

It was necessarily implied that these specifically described omissions occurred pursuant to the concerted "sick-out" of the air traffic controllers, since that concerted action was the entire subject matter of the litigation. Indeed, the...