United States v. Professional Air Traffic Controllers Organization (Patco), Its Officers, Agents, Servants, Members
438 F.2d 79
2d Cir.
1971
Check Treatment

*2 appeals paragraph States United WATERMAN, Before MOORE and injunction barring the FAA III of the HAYS, Judges. Circuit taking disciplinary action par- against the aircraft controllers who HAYS, Judge: stoppage. ticipated in the work ap- I. jurisdiction hear this have We 1292(a) (1) peal under 28 U.S.C. § 25, 1970, commencing On March at (1964). m., large 8:00 a. numbers of air traffic the order We conclude that contained controllers, employees of the Federal injunction paragraph III of the must (FAA), Administration Aviation absent- be vacated. ed themselves from their The air work. reported traffic controllers II. gave ill or other for their reasons applications absences. A number FAA has the to disci made to the federal courts for judicial employees in pline its without junctions against employees. The Gronouski, In McTiernan v. terference. present appeal ap- arises out of such an (2d 1964), 337 F.2d plication in the permissible “limited noted the United States District Court judicial area” scope in this review against York Eastern District of New and said: the Professional Air Traffic Controllers taking Organization (PATCO), “The officials government employees, includ- several hundred aircraft controllers. ing sanction preliminary the invocation issued a district dismissal, dis- a matter of executive enjoined injunction the air traffic subject judicial cretion, su- and is con- from “in manner required engag- pervision the extent tinuing, encouraging, ordering, compliance hibition demonstrates ‘substantial insure statutory the trial was not concerned pertinent *** general Congress,’ issue of with the provided by only par- protects arbitrary capri- fairness.1 The order guard against * * ticipants stoppage. All oth- cious (including participants er *3 by directed statute FAA is charged with inde- the work task, requiring ad- perform specific violations) pendent subject are disci- expertise, in a manner con- ministrative procedur- plinary the of action. If issue public 49 U. interest. the sistent with properly the al fairness were before FAA, (1964). is for 1348 S.C. § all halted court its would have gauge courts, for and the need not the discipline employees. FAA of Or when an of action the effect simply required trial court could have stoppage occurs. unlawful work protections procedural af- of courts is not business “It disciplined employees. forded to all judgment their substitute untutored knowledge expert of those who III. given implement authority general Congress.” Air of directives Appellees para- further contend that Quesada, F. 276 Line Pilots Ass’n. v. injunction graph necessary III of the is 1960). (2d 2d 898 Cir. jurisdiction protect over court’s it, citing the action before 28 U.S.C. § ground suggested proper No (1964), preserve 1651 and to the “status holding in the FAA pending quo” a final determination disciplining employees its could dispute. Although of our sister two arbitrary capricious. Dis- considered or persuaded by ra- circuits have been cipline finding upon based affirming substantially tionale in simi- employees’ was unlawful by courts, lar actions taken district clearly within the of the ad- Plasch, United States America v. agency. agency’s ministrative If the ac- (7th July 10, 1970); United in prove tion case should individual Moore, F.2d States of America v. 427 arbitrary capricious to be it would be (10th 1970) (but 1020 Cir. June see subject eventually to administrative J.) dissenting ; opinion Breitenstein, C. judicial Macy, review. See Norton v. respectfully we decline their to follow U.S.App.D.C. 135 F.2d 1161 417 lead. (1969). by taken the FAA No action argument Appellees’ any of individual in this defendants justified prohibiting in case would have a effect detrimental disciplining employees because its from jurisdiction. 6 Moore's the court’s See possibility the controllers (1966 ed.). Practice Federal ¶54.10[5] pro- various were entitled to subject court will continue to have presently exist which do not tections per jurisdiction retain matter will regulations mark. of the FAA is wide jurisdiction sonal over the defendants. discipline of FAA’s Disciplinary will nothing do with have its impair ability not of the court question before that was proper to whether a make decision as engaged the controllers —whether injunction granted, permanent should be so, illegal stoppage and if in an upon if called do so. enjoined from should be whether to allow be used 1651 cannot stop- acting Section to continue that concert lying whol- a matter “with Moreover, to deal page. the nature prior commenced pending the same These issues are controversy. Leyden judge FAA, stant district F.Supp. (69-C-1566), 315 1398 a suit 82

ly the issues the suit.” De York outside New on behalf himself and all States, similarly Beers Ltd. v. United 325 other Mines situated air traffic con- 1130, 1134, 212, 220, employed L. 65 S.Ct. trollers U.S. the FAA in the Region Ed. 1566 Eastern (1945). FAA and Regional Eastern Director.1 IV. sought, alia, preliminary injunc- inter 1965-69) (Supp. V. U.S.C. § enjoining Regional tion the Eastern provides part: pertinent acting appeals Director from an offi- may accept or “An individual suspensions cial in connection position hold a plaintiffs enjoining * * * (cid:127)the if he— holding hearing inquiry from be vacated. cie case of an from spite ing) : ly WATERMAN, Government of serts the [*] flies government (cid:127)» (3) of the stoppage.3 Paragraph The trial court determined that taking any disciplinary in the defendants based participates in a ”2 [*] the face (cid:127)» statute right illegal had of to it proven enjoined *X- statute. Judge (dissent- United States stoppage. III obvious against prima upon the FAA any It or as -X- must the plaintiffs the fa In answered ceedings plaintiffs. a September mission of der. Director from nary cial in dural On garding plaintiffs’ appeals FAA from preliminary injunction September 11, 1970, action unless seven restraining the Eastern *4 safeguards any disciplinary before August 5, to Leyden’s complaint, plaintiffs affidavits, Judge 30 it filed a notice of interfering In that record acting grievance action, and 1970 and as an with the the Government transcribe restraining specific proce- injunction on after the sub- afforded appeals Judd issued examiners.3 August involving Regional right discipli- and on appeal offi- the or- of respectfully I dissent. My in brothers’ essential mistake is brothers, by my prior failing As noted preliminary to that realize injunctions present actions, commencement of two actions before in the appeal, molded, they us on this first on vacate, March part would April 1, 1970, light 1970 and the second properly so, an and in the of is- controller, Ley- then, air traffic one John F. Leyden ease which was sues in the den, class action on now, pending commenced a Decem- and is before the same judge. majority's ber 1969 in the Eastern District that contention (Supp. 1965-69) 2. thereby V. 18 1918 § U.S.C. to controllers and ment dismiss all replacements makes violation of criminal 5 U.S.C. until end air travel service (Supp. 1965-69) provides V. and § 7311 But even if the could be trained. statute year day’s up manner, sanctions of and a to were to such a be construed up imprisonment, prohibit- a fine of to $1000. and that an order seems obvious offending ing discharge 3. The FAA intends dismiss employees would unlawful. small number of controllers who were suspend leaders in the strike and to Federal Aviation Administra discipline Gary, F.Supp. George otherwise certain others. M. tion argued ap- since the has been that statute 69-C-1566. peal's speak (a in absolute strik- terms question suspensions were ad- 2. The * * “may govern- er not hold” a leave” on ministered for “abuse sick position) FAA ment and the does not 19, 1969, when numerous June terms, tend follow these absolute country throughout employees failed somehow restraint justified. report for work claimed question There is a substantial to work. were ill and unable whether must be read in a statute require F.Supp. 1970). govern- (EDNY manner which would 3. 315 discipline paid specialized men with skills would “FAA’s nothing do not violate the law unless there was have provocation they thought some question that was the * * *” Judge justified it, though submit, is, incorrect. even their belief concerned, justification might as one primarily be erro- Judd also neous. would think the would achieving concerned, primarily has There been reduction com- degree peace” in order of labor “some pulsory stop- overtime since the work normalcy airline the nation’s restore page, which did not come until after that, after found traffic. The sug- stoppage, the work and which fol- to work had returned air controllers gests may, alleged, the F.A.A. temporary re- lowing entry of a unduly relieving have been slow in straining which the Government pressure on the Controllers. obtained, sought and had had now, before, sayI I said I think treating fair- the air knowingly disobey a those who F.Supp. Judge stated, ly. Judd penalty for face the vio- law must 187: right They to amnes- have no lation. continuing hoped ad- ty. Nevertheless, entitled govern- by the review ministrative the administration fair treatment bring might short result ment some penalties, of miti- consideration *5 amnesty satisfy de- that would circumstances, gating proce- and to a being fairly they were fendants that such, as dure that as far the Court to the court treated. It seemed clear assure, as make the defendants can to no mediation that there could be think it is fair. away amnesty the men were while allegedly Judge Judd listed some of possibility work, ex- that the but working conditions burdensome negotiations meaningful isted of some quoted that which indicated statistics In they returned to work. after an ab- air as a class suffered at risk of a new to avoid normally high phys- incidence of various injunction period, the of the end allegedly resulting from ical disorders days a a later submitted few pressure He of their work. conclud- parties proposal for indefinite to ed, F.Supp. at 188: injunction. extension of the re-assignment of The nature of By re- the time comments were and the men returned to work who appeared proposal ceived on this public of the notices nature change there no of administration was plans disciplinary action about the policy which was calculated to take ac- pro- the notice of and the nature of mitigating count of circumstances disciplinary procedure posed do not stoppage, in connection with the work me consid- dicate to F.A.A. and there evidence that transfers was ering mitigating circumstances duty being punitive used in charges. by these are reflected way and that the limited of re- nature trollers’ tions at 187: The court also would not view stantial number of the defendants administrative The were not complaints court considers also that any disciplinary be de found fairly procedure. minimus, the idea dealt with in relatively highly working air con- F.Supp. condi- gave they sub- plaint in this case serve notice of return to work and I said on transfer compelled to do seems to me rather April them to different America seeks compel government action [*] 13th that intention equity. government [*] then defendants equity, it can if the immediately incongruous *- discharge. The jobs and to [*] com- asks ask ly the men be directed to resume were entitled to the assurance employment. gave their normal If I would not sub- thought going jected put were not questionable to be disciplinary work would have following hesitated before resumption cedures their ordering (Emphasis sup- them back. judicially until re- plied.) solved. prompted majority air controllers were is also mistaken on a place by their first subsidiary points. the law the number violate Mc They poor working Gronouski, Tiernan conditions. v. (2 F.2d 31 Assoc, 1964), of the Cir. to return to because Air luctant Line Pilots treatment, specter Quesada, (2 specter unfair 1960), 276 F.2d 892 cit by ed giving not without which the court found was the courts Therefore, course, permissible ju scope “limited basis. properly account actions, could take into dicial review” of heavy-handed inapposite. treatment threat of In those cases the court grant being it decided to when asked to what the review Gov requested, FAA had ernment past. the relief had done in the in its to en- government of course it could tailor relief stant case arises from a Judge courage challenge peace. present As Judd labor taken noted, government air wanted the request the Government and a jobs. present equitable on their The ad- controllers back affirmative relief. governing question Judge the The ministrative Judd was: handling light control- In Government’s of what the Government intends were, therefore, lers’ actions crucial fac- afterwards to do if the court an orders if tors for the court to consider labor end to the work and the de stability promoted, work, and if the were to be fendants return to an in should junction issue, and, so, controllers were be ordered back if should condi *6 judicial pursuant to decree and un- tions be attached to its issuance? The der the of the exercise of the threat critical difference that undermines the precedential contempt power. Inasmuch as court’s value by of the cases cited concerning majority the fairness of the the issues the is that here the Govern disciplinary procedures ment Government’s initiated the suit and it was the good Leyden, pending in it were made equitable that asked for re Having preserve quo sought equity to the may common sense status lief. it be by telling compelled equity. the Government to withhold to do As stated in discipline propriety Engineers until the of its disci- Brotherhood of Locomotive v. plinary procedures Co., had determined. been Missouri-Kansas-Texas R. 363 U.S. responsible govern- 531-532, It is not the of a act 80 4 S.Ct. L. agency broadly (1960): ment to seek court inter- Ed.2d 1379 then, by it, injunction, vention obtain and exer- is free to If the District Court hiding pow- equity behind the inherent typical powers of a court the cise court, seek, by ers of the executive ac- impose equity, to it has the tion, nullify unfairly quo to the status requiring maintenance conditions agency’s created at the quo. this status Conditions quest. may traditionally made nature injunctive price of relief when the majority also that states because powers are invoked and of the court only protects participants “[t]he necessary do conditions stoppage,” in the work court “the trial justice parties. between the general was not concerned with the issue States, procedural p. 321 fairness” It suf- U. Yakus v. United See also say L.Ed. 834 obviously fices to 88 that the involved 64 S.Ct. S. Conditioning (1944); vitally air Air controllers were most concern- Fogel, (3 fairness, Corp. ed F.2d 879 with obvious-

«5 Finally, it FAA 1959). admits air controllers The fear of the they small number jobs, a that, they tends to dismiss to their if returned proce- in subjected disciplinary leaders controllers who were would be suspend comport and to otherwise disci- due strike dures that do proposed subject pline judicial This process proper certain others. is a for above, procedur- of action is action which indeed these course review. As noted statute,” though pos- the face of the for 5 questions, “flies in al inherent speaks terms.5 present in absolute ture cases when U.S.C. § that, Congress Judge initially Judd, if has told the FAA were partici- Leyden. pending are found to have in Due the controllers also before him pated prob- com- in a is to the seriousness of the national discharge pelled all lem created the statute controllers’ stoppage partic- consequences controllers who are to have the dire found highly ipated if in incon- would a that strike. It is follow second precipitated by any should sistent for the FAA cite 7311 to unfair § judicial vacating ground a treatment of the controllers branch as after work, judge’s restraining surely returned to it a order when wise ig- stay unequivocally proposes disciplinary itself hand FAA legislative of the FAA until the nore mandate. could branch’s conduct inquiry Although a full questioned interpretation into the above FAA § procedures. admittedly puts in the di- discharging lemma of all the controllers argues the in also drop- in involved the work “flies junction the Government ping contention there was such 7311.4 With face” of 5 § U.S.C. stoppage, cannot, judges, scrap we as deference, conclu it obvious is meaning of so clear statute or- incorrect; merely or sion is agency’s der to resolve the dilemma for discipli to hold all dered the Government belongs Congress, it. That task nary measures which, light increasing concerted abeyance until the issues by public employees, should enact perfectly clear resolved. statutory provision. a more realistic legitimately invoke cannot § adapt When the FAA asks a court manner, in an unconstitutional statutory provision troublesome new when, here, situation, unseemly FAA to *7 being unconstitutional, questioned as are argue equitable standards temporarily has apply have the court reach would exercising enjoin the Government from equita- situation should not also be function. 4. 5. version employment ed), passed an This The statute is or serts the United States act No % (3) 69 Stat. employment * * *, conclusion is August 9, person entitled legislative history. participates opinion. right * who shall provision sot “An * out Public Law accept Act ”* strongly strike United States at the end of read: and was included Government (emphasis or hold [*] strike or as- prohibit supported original 84-330, there- office [*] add- stating intended. pp. dividual Committee states: Law wording. * Committee States 20. to” prohibitory such ed.) ** 19-21 89-554, gave the section its and “is words Senate, agency that no substantive may hold” Report Although Report codification, (1966). sense, “may not * * Accompany permitted (No. not” as “is * Indeed, changed *. “No Judiciary, overly explicit * 1380) part (Emphasis not authorized * person to.” H.R. change used hold” the “An in- present Report United Public Id. at shall add- applied parties bly FAA has

sued. would,

For all of the above reasons modification, uphold prelim-

without injunctions6

inary issued below.

Boreman, Judge, concurred part part and dissented in filed opinion. an Shirley LEA, Romona Pinnix Annie Tinnin, Appellants,

v. CORPORATION,

CONE MILLS Appellee.

Shirley LEA, Pinnix and Annie Romona Tinnin, Appellees, CORPORATION, MILLS

CONE Appellant.

Nos. 14069. Appeals, Court Fourth Circuit.

Argued Sept. 1970.

Decided Jan. *8 appeal 6. Both the have referred Association’s was dismissed on “injunctions” opinions. throughout September upon stipulation. our However, argument between oral the Govern- Hence merits of present decision, Transport Air ment’s case have been considered.