Appealed from: Merit Systems Protection Board.
Markey, Chief Judge, Friedman, Rich, Smith, and Nies, Circuit Judges.
This appeal is from a decision of the Merit Systems Protection Board (board) sustaining the removal of Robert L. Campbell and others by the Federal Aviation Administration (agency) from their positions as air traffic control specialists, Denver Air Route Traffic Control Center (DARCC), Longmont, Colorado. The grounds for removal were striking against the United States and absence without leave. We affirm.
The general facts concerning the background of the strike called by the Professional Air Traffic Controllers Organization (PATCO) and the action taken by President Reagan are set forth in Schapansky v. Department of Transportation, FAA, 735 F.2d 477 (Fed. Cir. 1984), and are incorporated herein by reference. Other facts pertinent to the issues considered herein are set out below.
None of the petitioners of this appeal, except Russell S. Root, reported for duty after August 3, 1981. Between August 7 and 19, the Chief of the Denver Air Traffic Control Center, Ralph Kiss, sent a notice of proposed removal to each petitioner after determining that the person had missed his/her deadline shift.
The removal notices each contained the following statement: "You may reply to this notice personally, in writing, or both . . . within 7 calendar days after you receive this letter." None of the petitioners made a reply affirming or denying the charges within the seven day period. Each, however, by letter, requested certain materials be sent; requested an extension of time within which to file a reply; and designated Michael Curtis of PATCO, Local 501, as his/her representative.
Kiss responded promptly in writing to each, denying the request for an extension and advising that "your response, if any, must be made in accordance with the letter of proposed removal."
On August 17, Kiss contacted Curtis, the designated representative, and notified him that oral responses could be scheduled by having individual controllers call the Center. No oral reply time was requested by any petitioner or Curtis after that call.
Petitioners were subsequently removed from their positions by the agency. Petitioners appealed to the Denver Regional Office of the MSPB, where their cases were consolidated. After a 5-day hearing, the presiding official issued a decision sustaining the removals.*fn1 Petitioners filed a joint petition for review with the full board, alleging numerous errors committed by the agency and the presiding official. The board rejected petitioners' arguments and affirmed the decision of the presiding official.
Petitioners here put forth positions which are addressed and rejected in other related cases decided today, including:
1. The agency committed error in invoking the crime provision to reduce the notice period to seven days. See Schapansky, slip op. at 19-20.
2. Petitioners were denied a full seven days to respond to the notice of proposed removal. See Adams v. Department of Transportation, FAA, 735 F.2d at 490 n.3 (Fed. Cir. May 18, 1984).
3. The MSPB improperly shifted the burden of proof to petitioners to prove that they were non-strikers. See Schapansky, at 482.
4. Petitioners were not on strike or AWOL after the presidential deadline of 11:00 a.m. (E.D.T.) on August 5, 1981, because confusion over the deadline shift rule caused belief that they could not return to work. See Adams, at 490-92.
5. Petitioners received disparate treatment as compared to controllers who returned to work prior to their deadline shift. See Schapansky, slip op. at 17.
6. The agency deprived petitioners of the opportunity to decide, up to the last minute, whether they would return to work by failing to inform petitioners of their individual deadlines. See Adams, slip op. at 6-7.
7. Petitioners' terminations were tainted by command influence, in that terminations were controlled by decisions of high Government officials, including the President, who usurped responsibilities specifically delegated to the agency. See Schapansky, slip op. at 20-23; DiMasso v. Department of Transportation, FAA, 735 F.2d 526, slip op. at 6 (Fed. Cir. 1984).
8. Petitioners were illegally constructively suspended. See Adams, slip op. at 9-11.
9. Removal is not the mandatory minimum penalty for striking against the United States. See Schapansky, slip op. at 18-19.
Petitioners also raise the following issues which we address in this opinion:
1. Whether the agency committed error in not scheduling times for oral replies.
2. Whether the MSPB decision was tainted by improper ex parte communications and advisory opinions.
In addition, several petitioners raise issues based on the special circumstances of their individual situations, which we also treat below.
Scheduling of Oral Reply Times
Petitioners assert procedural error by the agency in failing to schedule oral reply times. Petitioners contended that it was incumbent on the agency to set a reply time for each petitioner in view of their requests that a specific time be set. As proof of such specific requests, petitioners point to a standard request included in the requests for extension of time: "Please inform me specifically of the time and place such a personal presentation may be made and the date on which my written response is due."
Petitioners argue that since the agency had the names and addresses of all controllers, "it would have been a simple matter to send each of [the striking controllers] a letter scheduling a time for an oral response." Petitioners claim that the telephone call on August 17 from Kiss to Curtis indicating that it was each controller's responsibility to schedule oral presentations "was merely an attempt to correct the previous error that had already taken place, to-wit: the failure to schedule oral response as requested."
As the MSPB held, while the statute and regulations clearly provide for a right to make an oral response to agency charges, they do not require the agency to schedule replies sua sponte. Rather, it is incumbent on an employee to take the initiative in scheduling the time to exercise that right.
Further, the above-quoted request for scheduling reply times, on which petitioners rely as an assertion of such right, is taken out of context. The opportunity for oral reply actually requested by the letter was no earlier than "20 days from the receipt of [requested] materials." An even later time was requested for written reply. No request was made for the agency to receive a petitioner's oral reply within the required seven day period set forth in the notice. Further, as held in Dorrance v. Department of Transportation, FAA, 735 F.2d 516, slip op. at 6-7 (Fed. Cir. May 18, 1984), there was no obligation on the agency to extend the time for reply under the circumstances.
It appears that petitioners turned the scheduling of oral replies into a "cat-and-mouse" game, defeating the purposes intended by the statute in granting such right. The evidence of record indicates that attempts by Kiss to contact petitioners directly by telephone were fruitless. He was unable to reach petitioners' representative, Curtis, at his office and pursued him at home to raise the matter of oral replies. One person to whom he spoke directly refused to make an oral reply "on advice of counsel." We see no bad faith on the part of the agency in these efforts. On the other hand, Curtis had ample opportunity to request reply times within the seven day period and chose not to do so.
Finally, petitioners appear to raise a futility issue with regard to requesting oral reply times, arguing that "it would have been impossible for the agency to accomplish oral responses for all controllers within the time frame prescribed by Mr. Kiss." Kiss, on the other hand, testified that all oral replies would have been heard. We need not consider this hypothetical situation. The fact is that no requests for oral reply times within the seven day period were made.
For the above reasons, we therefore agree with the board that petitioners have failed to demonstrate any procedural error in the agency's handling of the oral response requests.
The Ex Parte Communications and Advisory Opinions by the MSPB
Petitioners allege the occurrence of improper ex parte communications between Special Presiding Official Kenneth Goshorn and agency representative Diane R. Liff on February 23-24, 1984. Petitioners' representative notified the board of the communications by letter dated March 7, 1983. After a thorough investigation, the board's Ethics Officer determined that the conversations were procedural in nature, did not relate to the merits of a board appeal, and, therefore, did not constitute a prohibited ex parte communication under 5 C.F.R. § 1201.102. The full board concurred in that determination.
Petitioners, in their reply brief, admit that the ex parte communications in issue are themselves insufficient to warrant reversal of the board's decision. Rather, they request that the incident be considered ...