RICHARD J. BECK, PETITIONER V. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION No. 86-1106 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit Memorandum for the United States in Opposition Petitioner contends that his removal as an air traffic controller was unsupported by substantial evidence. 1. Petitioner was among the more than 11,000 air traffic controllers who participated in a nationwide strike against the United States in 1981. As a result, he was removed from his position by the Federal Aviation Administration (FAA). /1/ Following his removal, petitioner appealed to the Merit Systems Protection Board (MSPB). After conducting an evidentiary hearing, the presiding MSPB official ruled that petitioner had rebutted the FAA's evidence of his strike participation. The presiding official's decision was based largely on his concluson that petitioner had suffered from a stomach disorder at the time and that the FAA had improperly refused his requests for sick leave. The presiding official deemed it legally unnecessary to determine whether petitioner was in fact incapacitated for duty on the dates in question. Pet. App. C2, C5; Gov't C.A. Br. App. 15, 20. /2/ The FAA then sought review by the full MSPB. On February 17, 1984, the MSPB granted the FAA's petition, with one Board member dissenting. It reversed the presiding official's decision and sustained the FAA's removal of petitioner. Pet. App. C1-C15. The MSPB agreed with the FAA that petitioner was entitled to sick leave only if he was actually incapacitated for duty. In reviewing the record, the MSPB noted that petitioner stated under oath that he was not incapacitated for duty on the dates at issue. /3/ In addition, petitioner admitted that he was absent without leave on August 3-5, 1981, and other witnesses testified that petitioner had made statements during that time period indicating that he intended to support the strike in order to avoid controversy with other controllers. Finally, the MSPB observed that on August 6, 1981, petitioner had started working on a well-drilling project and was fully capable of performing that work, even though he characterized the job as very physical. Based upon all of the evidence, the MSPB concluded that petitioner was not incapacitated on August 3-5, 1981, but instead chose to withhold his services in support of the illegal strike. Pet. App. C5-C7. The MSPB's finding that petitioner was not entitled to sick leave required it to reach a second issue that had not been addressed by the presiding official, namely, whether the FAA had changed the starting time for petitioner's August 5, 1981, shift from 7:00 a.m. to 8:00 a.m. If such a change was made, then his absence from the August 5 shift constituted a failure to qualify for the President's grace period. /4/ If not, then he arguably had until August 15, 1981, to report for duty without being subject to removal for his strike participation (Pet. App. C8-C9). /5/ The MSPB noted that, even though petitioner was originally scheduled to report for duty at 7:00 a.m. on August 5, his supervisor telephoned him at 6:35 a.m. that day and instructed him to report for work at 8:00 a.m. so that the facility's staffing needs could be met (id. at C9-C10). The MSPB concluded that, under the emergency circumstances that existed at the time, the telephone call was a "logical and suitable method to change (petitioner's) shift" (id. at C10). Accordingly, the MSPB found that petitioner's deadline shift was his August 5 shift and that since he did not report for duty, he failed to comply with the President's directive and was properly removed (id. at C10-C11). 2. The court of appeals affirmed the MSPB's decision in an unpublished opinion (Pet. App. B1-B3). It noted (id. at B3) that petitioner "acknowledge(d) that he was advised by a telephone call from his facility that his annual leave was being cancelled and that he soon thereafter called back and asked to be placed on sick leave." The court also rejected petitioner's argument that his request for sick leave had been improperly denied, noting (ibid.) that the MSPB had properly considered all of the evidence on the issue and had reached the correct finding. 3. Petitioner contends (Pet. 7-12) that the MSPB and the court of appeals erred in concluding that he participated in the illegal strike. Specifically, he asserts that the court of appeals incorrectly stated that his annual leave had been cancelled. In fact, the court's observations regarding the status of petitioner's annual leave are supported by the evidence. More importantly, petitioner was properly removed from his position regardless of whether his annual leave was cancelled. a. The record reveals that an FAA official told petitioner on the first day of the strike that no annual leave would be approved (Gov't C.A. Br. App. 11). The following day, petitioner was informed by the assistant facility chief that the FAA was not approving leave of any kind (id. at 12). Petitioner subsequently received the same information from the deputy chief of the facility (ibid.). This evidence, the existence of which petitioner acknowledged (Pet. C.A. Br. 4-5), supports the court's statement that petitioner's annual leave was cancelled. b. In any event, this issue is not relevant to the disposition of the case. Petitioner was charged with strike participation and absence without leave for the period August 3-5, 1981. His annual leave was not to begin until after August 5 (Pet. App. C7, C9). Thus, the relevant questions, as the MSPB explained (id. at C4-C10), are (1) whether petitioner was entitled to sick leave on August 3-5, and (2) whether his shift on August 5 was changed from 7:00 a.m. to 8:00 a.m. As to the first question, the MSPB and the court of appeals correctly concluded that petitioner was not entitled to sick leave. In seeking review by this Court, petitioner does not challenge that finding. On the second question, the MSPB found that petitioner's August 5 shift commenced at 8:00 a.m. Petitioner likewise does not challenge that finding. The August 5 shift was therefore petitioner's deadline shift, and his failure to report for that shift properly subjected him to removal. It is therefore respectfully submitted that the petition for a writ of certiorari should be denied. /6/ CHARLES FRIED Solicitor General MARCH 1987 /1/ The basic facts of the strike are set out in Schapansky v. Department of Transportation, 735 F.2d 477 (Fed. Cir.), cert. denied, 469 U.S. 1018 (1984). /2/ The presiding official's opinion is contained in an appendix to the government's brief in the court of appeals (Gov't C.A. Br. App. 1-24). /3/ The MSPB acknowledged that there was also some evidence to the contrary. Specifically, petitioner testified that he did not believe he could properly perform the duties of an air traffic controller. In addition, his wife testified that he was experiencing stomach problems during the relevant time period. And petitioner's psychologist (who had not seen petitioner since June 1981) testified that he believed petitioner was disabled on August 3-5, 1981. Pet. App. C6. /4/ The strike began on August 3, 1981. On that day, at 11:00 a.m. E.D.T., the President of the United States announced (Schapansky, 735 F.2d at 481 n.4): "I must tell those who failed to report for duty this morning they are in violation of the law and if they do not report for work within 48 hours, they have forfeited their jobs and will be terminated." The FAA implemented the 48-hour deadline by sending a notice of proposed removal to each controller who failed to report for duty at his first scheduled shift at or after 11:00 a.m. E.D.T. (8:00 a.m. P.D.T. in petitioner's case) on August 5, 1981 (Pet. App. C8-C9; Gov't C.A. Br. App. 3). If petitioner's August 5 shift commenced at 7:00 a.m., this shift would not have been his first scheduled shift at or after 8:00 a.m. on August 5. /5/ Prior to the commencement of the strike, petitioner was scheduled to work August 3, 4 and 5. As a result of a combination of regular days off and previously scheduled annual leave, he was not scheduled to work again until August 15, 1981. Pet. App. C2 & n.3, C7, C9. /6/ The narrow factbound issue raised here is not related to the legal issue presented in DOT v. Fitzgerald, petition for cert. pending, No. 86-1262. The issue in Fitzgerald is whether four air traffic controllers who were leaders of the union that called the strike were entitled to "official time" under 5 U.S.C. 7131(a) and therefore were not subject to dismissal on the ground that they were engaged in the negotiation of a collective bargaining agreement. Accordingly, there is no need for the Court to hold this case pending its disposition of the petition in Fitzgerald.