Richard T. Adams v. Department of Transportation, Faa, Gary S. Baracco v. Department of Transportation, Faa
735 F.2d 488
Fed. Cir.
1984
Check Treatment

*1 rejected of Claims has The Court issue. agency’s predetermi- an employee if the an to remove

nation proven improp- him were is

charges against States, F.2d

er. v. United Pascal (1976). 211 Ct.Cl. point the “crucial noted that

court there failed to has demonstrate plaintiff

that the impervi- would been [agency]

that the failed show that the proof

ous if the charged.” Id.

facts agency’s procedures

We hold with law and that

were in accordance no harmful

application involved error.

DECISION

Accordingly, the Board’s sus- decision permanent re-

taining the Schapansky by from

moval position Special-

his as Air Traffic Control Route Traffic

ist at the Air Control Center Worth, Texas, Fort affirmed.

AFFIRMED. al., ADAMS, Petitioners, et

Richard T.

v.

DEPARTMENT OF TRANSPORTA- FAA,

TION, Respondent. BARACCO,* Petitioner,

Gary S.

DEPARTMENT OF TRANSPORTA FAA,

TION, Respondent.

Appeal Nos. 83-1156. Appeals, Court of

United States

Federal Circuit.

May * (deceased), party as a Appellate Baracco was substituted Rule Federal Rule of Proce- Under Baracco, dure, Marjorie surviving spouse F. on motion. Gary personal representative S.

amicus curiae Nat. Treasury Employees Union. MARKEY,

Before Judge, Chief and FRIEDMAN, RICH, NIES, SMITH and Judges. Circuit MARKEY, Judge. Chief Appeals from decisions of the Sys- Merit tems (Board), Protection Board Docket 075281F0424, Numbers NY DC 075281F0895, sustaining Adams, removal of Richard Gary T. S. Bar- acco, (Adams) and others by Depart- ment Transportation’s Federal Aviation (agency) Administration from posi- tions as Air Specialists. Traffic Control The bases for removal proven constituted against the United States and absence without leave. We af- firm.

Background opinion The reader of this is referred to this opinion court’s accompanying its deci sion in Schapansky Department Transportation, FAA, (Fed. 735 F.2d 477 Cir.1984) issued of even date. The discus Leighton, D.C., Richard Washington, J. sion in Schapansky of facts and issues argued petitioners. for With him on the common to that case adopted and this are Casano, brief was William Washington, C. incorporated and opinion. this D.C. Except for petitioner instances in which a Gohen, Washington, D.C., David M. ar name, identified “Adams” should be gued respondent. With him on the read applicable petitioners to all in these McGrath, brief were J. Paul Atty. Asst. present appeals.1 Gen., Spooner Sandra and Robert A. Reu tershan, D.C., Washington, Liff, Diane R. Issues raised Adams and Amici and Litigation, Asst. Dept. Gen. Counsel for differing in substance or detail from those D.C., Transp., Washington, of counsel. discussed in Schapansky are discussed in

Stephen Cooper Cohen, opinion. C. and Steven Z. this Southfield, Mich., were on the brief for Unlike Schapansky, petitioners here petitioner. amicus curiae on behalf of response made no oral to the notice of Stephen Schlossberg, Washington, I. removal and were not shown to have voted D.C., was on the brief for amicus curiae the Only the strike. Baracco was shown to Honorable William D. Ford. engaged picketing. present Each Williams, Litigation,

Lois G. Director of received an agency propos- letter O’Duden, Counsel, Gregory and ing Asst. participation removal for strike D.C., Washington, were on the brief for absence without responded leave. Each Appendix 1. Listed in A are whose 83-1155. appeals hereby Appeal decided under (PATCO)prepar- OPINION submitting union

only by enlargements time requesting ed forms (1) Alleged Confusion petition- No of documents. production contends Adams’ brief Presi- petitioner re- charges.2 No er denied the dent’s announcement and actions response, be- for oral quested opportunity respecting ability controllers’ to avoid re- of time to yond requests for extension by returning moval so con- work were *3 writing orally”. Nor did “in answer fusing that controllers were unable to form testify either the before any petitioner an intent to strike. Petitioners have not fact differ- Other the Board. agency or Board, agency, told the or this court in the course of discus- appear ences will absenting their intent them- what was issues. sion on the throughout from work the time of selves they pointed any

the strike. Nor have to anything upon which but an intent Issues found, might may to strike be or which (1) government officials created Whether counter the circumstantial evidence estab- concerning Presi- confusion such lishing an intent to strike. controller’s deadline and abili- dential a.m., The President announced at 11:00 duty pre- as to have ty to return to E.D.T., 3, 1981, August on that controllers of an intent to vented formation striking report duty then did not for who strike. posi- within 48 hours would forfeit their (2) properly the Board drew an Whether tions and terminated. Because of “will be” petitioners’ inference from adverse differences shift schedules and time testify. failure to zones, agency to allowed controllers (3) unlawfully agency regularly- sus- Whether return to work at the time of during agency pro- began that after 11:00

pended petitioners scheduled shifts a.m., on by placing them in a ceedings non-

duty, non-pay status without follow- say thought The briefs controllers ‘ ing of 5 procedures U.S.C. they they fired did not had been when § 7513. report to work before 11:00a.m. on (4) correctly found 5, 1981, Whether the Board take and thus “could not” advan through tage permission

that the strike lasted at least to return at the time regularly-scheduled of their first shift fol- 1981.3 argument days”). less The is semantic 2. Adams' assertion that a sentence in one stock than (challenging any response basis for a PATCO charge and senseless on this record. The Board held crime) committing days, though a was a denial of the notice itself inclusive of 7 it creative, unavailing. but denying harmless error in a letter time found agency's was directed at the use of a sentence enlargement to Baracco. Each re period. shortened notice sponded days. request the notice within 7 In ing enlargements, petitioners they said did time of a 3. Amici want the removals vacated for lack days is a If not think "seven reasonable time”. notice, (1) day asserting: notice sent was , error, harmless, request it was there were (2) striking; before were found reply having time been made within the an oral crime) (making a 18 U.S.C. strikes vio- § day period. The burden to show harm is seven (1) Argument lates the Thirteenth Amendment. 1201.56(b)(1), petitioners’, § 5 CFR Shaw v. 7513(b) requires only § is unfounded. 5 U.S.C. (Fed.Cir. F.2d Postal cause believe” an has “reasonable 1983); yet any no effort was made to show that (2), Argument impressively a crime. committed reply additional was or would have been at stated, Nothing attempts § too much. day. argument tempted on the seventh anyone against compels his her will. to work or might appropriate be if the had refused prohibits impedes resignations. It neither nor reply day to consider a filed on the seventh Adams, Baracco, say and Amici the removal days.” because not filed "within 7 calendar provided 7 calendar notice "within sit, however, This court does not to decide effectively days, days,” providing thus for 6 hypotheticals. 7513(b)(2) (reply violation of 5 U.S.C. in “not § proceeding board, lowing ending grace of the President’s or simply that de- argument disingenuous. period. The rationality. fies First, the President’s announcement termi- cases, The citations of criminal in which one, least of all nonstrikers. Sec- nated no proof beyond-a-reasonable- must meet a ond, explain why petitioners’ briefs do proof doubt standard and in which mere controllers, not, they did as did 1200 other absence was found consistent with resigna- 11:00a.m. on report before tion, e.g., McCubbin, United States v. Nos. why they notify or did not at (10th Cir., through Aug. any time before their next scheduled shifts 1983); Martinez, United States v. they strike, why they not on (5th Cir.1982), inapt. simply report did not and announce their at time of readiness work Petitioners’ shifts, «/they scheduled had no intention of notify had a burden to each controller indi- at those times. vidually that he or specif- she had until the *4 ic time of that controller’s next scheduled present petitioners None of the testified advantage shift which to take any that he was confused. Nor is there grace period President’s is merit. without any evidence whatever that controller was petitioner Each regu- knew when his next recognizing im- Apparently confused.4 larly-scheduled possibility agency’s proving of an shift commenced what was and elect- mind, employee’s up in an Adams’ ed not to Having brief con- show at that time. cedes that intent can be shown circum- disregarded moratorium, the initial 48 hour effort, stantial evidence. It makes no how- petitioners hardly complain can they that ‘ ever, to blunt the thrust of the view that a specifically were not and personally noti- controller absent at commencement of the opportunity fied that each had an to also strike, truly intending partici- but not to disregard an extension of that moratorium. it, would, pate promptly upon hearing or nothing There is whatever of record to announcement, hearing of the President’s any petitioner indicate that would have re- agency any contact the and relieve it of any turned or had interest whatever in presumption any that his absence was in returning to work at the time of his next related manner to the strike. Petitioners regularly scheduled shift. Nor is there their alone knew true intent. every whatever to indicate that logical,

Nor is there a common sense returning petitioner would have been believing for that the basis President’s an- Indeed, turned aside. the evidence is to actual, envisaged nouncement an simulta- contrary. 15,000 “return

neous to work” of control- speculations lawyers Ad hoc cannot lers, believing or for non-reporting that all actually for evidence of substitute what controllers had been “fired” as of Though occurred. the court has in the rare existed, any such If belief the notice permitted circumstances of these cases petitioners proposal received of a to remove leeway argument, counsel substantial opportunity of their them and to there must evidence in the record be some- should have disabused them of it. That support where in these cases to counsel’s having one no intent strike would so arguments, for this court’s decision must cavalierly accept job the loss of one’s be based on a “review record”. 5 [of] inquire, or would fail to or would § 7703(c). U.S.C. report fail to or return 11:00 a.m. on prevented that confusion report fail to would shift, formation of an is at at the next scheduled or would intent to strike best work explain unpersuasive. fail to his at the agency absence indicating petitioner briefs as 4. The assertion that Miller did not that at least one charges directly understand the refuted in was confused. letter, only Miller’s evidence cited in the falsely testify- expected to refrain from be Adverse (2) The Inference that his due to ing under oath absence was evi presented had Once non-strike reasons. it participation, was of strike dence inference adverse improper drawing to draw an No error occurred the Board’s testify or other petitioners’ from refusal an adverse inference in this case. evidence before wise offer rebuttal (3) Suspension Board. argue they Petitioners should be adverse propriety of Adams concedes the given pay they back were con- because party is in civil cases when inferences structively suspended during period be- evi- adverse probative in the face silent proposing the notice and the tween removal Palmigiano, dence. Baxter v. See date of removal. 1557-58, S.Ct. say re they Petitioners had (1976); Book v. Postal L.Ed.2d if duty report after ported failing after (8th Cir.1982). say The briefs F.2d 158 deadlines, they would not have been irrelevant deny failure to Hence, petitioners, permitted say to work. presented suf- had not because act, reporting would have been a futile argument is adverse evidence. ficient place non-duty- that failure to in a them presented had be- meritless. The suspen with-pay status was a constructive case of strike prima Board a fore the facie Board, however, correctly held fully support the sion. The adequate to participation countervailing as a matter of law that had to charges in the absence of they willing, ready, show that rebuttal. *5 receipt after of notice. able to work their deci- Attacking presiding official’s evidence these No such was offered sion, says failure to Adams’ brief rebut petitioners. agency’s allegations was in that decision part of case prima considered report to to work When failed facie however, twice, Petitioners scheduled, itself. declined they considered absent as were absences, during the explain their once to paid. and Like without leave were not proceedings again and dur- agency removal employees, petitioners federal were most ing The first failure to hearing. the Board time, paid not for unworked unless those absences deny the left Petition- paid time was scheduled leave. unexplained, thereby and add- unauthorized pay claim to ers nonetheless entitlement sufficiency agency’s pri- ing to the of when, through their own during a time case. It the Board’s decision ma is volition, they with- were absent from work facie review, petitioners’ silence before we authorization, during they which out Board, after the had established they gave the reason to believe case, fully prima warranted Choosing to to ab- to come work. wanted facie drawing of an adverse inference. Board’s themselves, petitioners created a situ- sent per- often of the most “Silence is pay in which the could not ation ex rel. suasive character”. States United them, ambiguity least an in their and at Tod, 149, Bilokumsky v. 263 U.S. only by clarifiable action on pay status 56, 54, (1923). 44 S.Ct. L.Ed. part. The view that one need not knowingly may perform a futile act be judicial process entirely divorc- The is private applicable to strikes in the sector everyday ed from common sense and the It employer-created ambiguities. and to had experiences of humankind. Petitioners inapplicable To order that clearly here. strenuously every reason and to incentive paid present cir- petitioners be under the deny charge participation of strike if of impermissible in view cumstances they not in But fear were truth strikers. policy federal and the may long-standing pay prosecution perjury, one devout- those necessity distinguishing The between ly hope, entirely disappeared. has not duty report can chose experience law and that a striker controllers who teach receipt between of notice and the date agency interpreted cedes that the the Presi- who, August 3, of removal and those controllers like dent’s 1981 announcement as petitioners, permitting did not. air traffic controllers to return to work at the time of their assigned first Petitioners, moreover, bear bur beginning a.m., shift August 5, after on establishing jurisdiction, den the Board’s 1981. Department Army, Stern — There is no evidence in this (Fed.Cir.), denied, record F.2d 1312 cert. that if Giannattasio attempted had -, to re 103 S.Ct. 77 L.Ed.2d 1354 turn to work at 7 a.m. on 12 he (1983), and their failure to establish that would not have been allowed to do so. they ready, willing, were and able to work Indeed, the evidence is to the contrary. As during period the involved constitutes a noted, the Board the chief of the York New carry failure to that burden. Procedures Center “testified that each appel § 7513 inapplicable under 5 U.S.C. lants permitted would have been to return “voluntary employ actions initiated prior to work to the deadline shift with § 752.401(c)(3) (1981). ee”. 5 CFR See they which charged with striking.” States, Taylor v. United Nor is there evidence that Giannattasio (1979). Non-duty Ct.Cl. status here was was removed before after voluntary. agency-enforced It was not he had received the proposed notice of ter agency-initiated disciplinary action. There mination and filed a written thereto. suspension, was no constructive or other only States, remaining wise. See Armand v. issue United is whether sub- (1956). supports stantial evidence Ct.Cl. 339 the Board’s find- ings that- the strike still continued on Au- based on a constructive gust and that Giannattasio’s fail- suspension theory must fail. report ure to on that date par- constituted (4) The Strike Period ticipation in the strike. There is no doubt required Petitioner Giannattasio was not began that a strike on report a.m., for work until 11 That strike continued until some event end- 1981, apparently because he was on annual ed it. leave until that time. When he failed to *6 There is no evidence that the union ter- report, he was served with a notice of 12, minated August the strike before 1981. proposed 12, 1981, August removal dated Substantial absences continued at the New charging striking him with as of that date. York September, Center well into as did Giannattasio contended the before Board picketing signs stating with “PATCO LO- that the proved had not the strike CAL 201 ON STRIKE” and numerous progress in August was still on 12. The statements union officials that the assertion, rejected Board that finding that continuing. strike of Local 201 was Nei- through the strike continued at least Au- government ther did the end the strike gust 1981. before that date terminating the em- It has been said that the must ployment relationship between itself and (1) prove: progress that a strike was in on the controllers. Although government charged; (2) date that begun procedures had to remove the con- could have returned to work by August trollers Giannattasio and that date. on Ketcham v. Federal Avia- many of his fellow controllers were still Administration, tion 82 FMSR 7026 1f employees on that date. 28, 1982).

(May pronouncements Giannattasio relies on present The unrebutted evidence in the press govern- statements of various conclusively case shows that the New York indicating ment officials that the strike Center air traffic controllers were not fired ended before and on August 5, 1981, 11at a.m. on and were not opinions indicating statements in court that August 19, locked out at that time. Giannattasio con- the strike ended before 1981. (5) Other Petitioners Haggerty, v. States See United (D.Col.1981). F.Supp. 1286 Appendix opinion in B this Listed appeals con petitioners other whose authority other cites government purposes solidated for decisional finding that Board’s support of the Docket No. MSPB Board substantially beyond Au strike continued and who filed individual NY075281F0^2Ji Taylor, States v. 1981. See United gust appeals under the numbers listed. The is Cir.1982) (air (9th traffic con 693 F.2d 919 appear have been appeals sues in those participating convicted troller in this or another of considered and decided 8, 1981); PATCO on PATCO strike by the court the decisions handed down F.L.R.A., (D.C.Cir.1982) F.2d 547 v. Appendix B today. Petitioners listed lasted until November (holding that strike notify days shall the court within PATCO, States v. 1981); United opinion regarding their intent date of this (N.D.Ill.1981) (preliminary in F.Supp. 1344 prosecute ap to withdraw or further 11, 1981, restricting on November junction peri peals. Absent notification within picketing by striking place and manner od, appeals Appendix listed in B will be controllers); PATCO v. Federal air traffic Asberry See dismissed. Postal Administration, 7 F.L.R.A. No. Aviation USPQ (Fed.Cir. (Nov. 3, 1981) (supplemental opinion of 1982). noting-PATCO neither had disa Chairman attempted to end the strike as of vowed nor 3, 1981).

November DECISION upon The evidence which Giannattasio Accordingly, the Board’s decisions sus- not undermine the Board’s find- relies does taining the removal of in Appeal until at least ings that the strike continued Nos. 83-1155 and 83-1156 are affirmed. government of- 1981. However AFFIRMED. strike, may have ficials viewed ob- support jective facts outlined above findings. Board’s A APPENDIX sup- We hold substantial Court finding that the strike

ports the Board’s MSPB Docket No. Docket Petitioner at York at least continued the New Center NY075281F0424) Richard T. Adams review func- until Our NY075281F0435) Bender Richard J. thereupon ends. tion NY075281F0454) Richard Bronleben having attempt Petitioners made / foregoing evidence before the rebut Chevalier NY075281F0477) Antonio *7 Board, suggests Adams’ before us brief Connelly NY075281F0486) R. Thomas picketers may sign-carrying the controllers, “just NY075281F0488) have been but Thomas J. Contegni merely public exercising of the members Curran Gerard NY075281F0500) rights.” argu- their first amendment J Fry NY075281F0548) N. James imaginative merit in ment is but without light of all the evidence.5 Giannatasio NY075281F0556) Allen appeal Baracco no effort to refute the facts no- 5. An amicus in No. 83-1156 chastises made ticed, Telephone taking Ohio Bell Co. v. Public Utili- Board for "official notice" that a nation- see Ohio, through ty 57 S.Ct. Commission wide strike continued of (1937), appear have been raised 81 L.Ed. 1093 and because The issue does not cases, any deny petitioners process did not their due before the Board in of the "lead” Board right way petition the nonexistence of a strike at for reconsideration or other- to establish of Because, also, nonparticipation agency proved as strik- Baracco their location or wise. ers, inappropriately argued through August here. because the issue is was on strike B

APPENDIX stopped there, letter Baracco would have no basis for that he is in a Court different situation from others. However, No. Docket Docket MSPB Petitioner letter, in the same the agency stated that 83-1159 NY075281F0671 Miller Raymond response the written was to be submitted 83-1160 NY075281F0748 Rocks Edward 83-1162 NY075281F0430 Amodeo William “prior the expiration 83-1163 NY075281F0439 Biancamano Robert day period.” seven notice 83-1164 NY075281F0442 Bonacum Bruce 83-1165 NY075281F0457 Brunner John Treating this as arguably creating an 83-1166 NY075281F0460 Burns Richard 83-1167 NY075281F0469 Carlstrom Kenneth ambiguity as to the final date for reply, the 83-1168 NY075281F0473 William Cecil presiding official ruled that Baracco would 83-1169 NY075281F0487 Charles Contegni 83-1170 NY075281F0507 show, Darcy have had to Charles event, in any that a 83-1171 NY075281F0531 Ennis Wayne 6-day reply period error, was harmful 83-1172 NY075281F0538 James Finnegan NY075281F0509 is, that the error might have affected the Dawson Gary outcome of the case. Since Baracco had NIES, Judge, concurring. Circuit made a reply written days within 7 offered no any evidence at join majority opinion I in the and write time of individu- I for treatment al only because see a need circumstances might which have greater of harmful error to a changed the issue outcome, the presiding official given in extent than it has been note 3 of ruled that Baracco failed to show harmful majority opinion. error. The agreed board that Baracco was required to show that the proce- asserted appeal is the lead case on The Baracco dural error was harmful. provi- error interpretation of the harmless § 7701(c)(2)(A) found in 5 vis-a- sion U.S.C. position Baracco’s is that harmful error statutorily period mandated time vis should not have entered into resolution of reply proposed to the notice removal. the issue of the shortened period. notice given only Baracco asserts that he was 6 Baracco right maintains that his to a mini- days reply, but for reasons not discussed 7-day reply period, mum unquestionably re- pertinent majority opinion in the to other § quired by 7513(b)(2), 5 U.S.C. rendered controllers. the action “not in accordance with law” the same Baracco was sent notice as meaning within 5 U.S.C. Thus, majori- other controllers. under the § 7701(c)(2)(C), below, that, set out here, ty initially given decision he was therefore, required. essence, reversal is In period. 7-day notice The notice was mailed argues statutory Baracco that a procedural by regular duplicate mail with a requirement subject is not to the harmful day by sent the same certified mail. Since § provision error 7701(c)(2)(A). of 5 U.S.C. testify, did not we do not know Baracco way, Stated another statutory violation of a by regular he received the notice mail when procedural requirement is per harmful se. which, receipt if of the certified statutory provisions under consider- mail, running would started pertinent ation here read in part: event, period. signed In he reply 7701(c)(2) agency’s may decision [T]he August 11. In an the certified mail on not be sustained if ... letter from Baracco to the undated requested he an exten- received time to file written on the (A)

sion of applica- shows harmful error in *8 days” was not a rea- ground “seven tion agency’s procedures of the in arri- filing response. time for At that sonable ving at such decision.

time found. he knew In reply, he had 7 days, as the MSPB denied “an Hs sfc [*] [*] # sfc (C) a written shows that the extension of time to submit decision was not in beyond day period.” the seven Had the accordance with law.

496

The MSPB carefully reviewed the statu- in [1978] U.S.Code Cong. & Ad.News 2723, Service Reform tory history of the Civil 1978, Act of Pub.L. No. 92 Stat. 647 F.2d at 1097. (Reform Act) (1978) to discern the support contrary position, In of the peti relationship provisions these two and cases, example tioner cites Ryder v. guide interpretation. found no clear to their States, 482, United 585 F.2d 218 Ct.Cl. 289 However, direction, it found favor of the (1978) Washington States, and v. United presiding ruling, in official’s the numerous 284, F.Supp. Ct.Cl. cert. de expressions during hearings on of concern nied, 801, 6, 78 S.Ct. L.Ed.2d 19 unnecessary proce- the Reform Act about (1957), clearly longer which are control dural reversals of actions.1 ling in view of the addition to the statute of the harmful provision. error rejecting argument, In Baracco’s guidance in the need to board also found Turning again precise language to the give parts all of the statute. The effect to statute, (A) I conclude paragraphs procedural regulations board reasoned that (C) and are directed at different evils. that, the force of law and if the procedures Harmful A) error in (paragraph provision ap- harmful error could not be question: raises the wrongful Did pro- plied procedures in connection with estab- cedure harm the presenta- statute, token, by by the lished same it tion of his defense so that a different result applied procedures could not be estab- might have been reached? Petitioner here by regulations lished which have the force has not asserted such harm. He asks sim- Therefore, statutory provision of law. ply per for a se rule. That is not a “show- ing” meaningless. on harmful error of harm as requires. would be the statute (C), Paragraph hand, on the other is direct- The board then reviewed reconciled ed to the decision itself. Was the decision here, its own holding and, decisions with its entirety its in accordance law? with finally, support found interpretation for its Since the harmful error rule part of the precedent court, particularly, this law, question becomes: Is the decision Doyle Administration, v. Veterans 667 in including accordance with the law (1981); F.2d 229 Ct.Cl. 261 Brewer provision? harmful error against Tested Service, 1093, 1097, U.S. Postal 647 F.2d standard, this the Baracco decision cannot (1981), denied, 227 Ct.Cl. 276 cert. 454 U.S. be reversed since no harmful error has 1144, 1005, 102 S.Ct. (1982) 71 L.Ed.2d 296 been shown. Shaw v. U.S. Postal (Fed.Cir.1983). For example, as stat Judge

ed Senior Brewer, Cowen in

first ease reviewed the Court of Claims

under the Reform Act: enacting

In the Civil Service Reform 1978, Congress

Act of declared that this

court should reverse actions for

procedural “only procedures error if the substantially impaired

followed

rights employees.” S.Rep. Cong., 95th reprinted 2d Sess. Hearings 1. See the Senate Hearings Committee on the House Before Committee on Post Before Governmental on S. S. 2707 and S. and Civil Service Affairs on H.R. 95th Office 22, 43, 101, Cong. 95th (1978); 2d Sess. Cong., (1978). 2d Sess.