ARTICLES
STRIKING IN THE FEDERAL SECTOR: AN
UPDATE ON THE LAW
JOHN J. MURPHY*
TABLE OF CONTENTS
Introduction ................................................
I. A Brief History of the Statutory Prohibitions ...........
II. Antecedents to the Air Traffic Controller Strike of 1981
III. The Air Traffic Controller Strike of 1981 ...............
IV. The Lead Decisions of the Court of Appeals for the
Federal Circuit .........................................
A. Proof of Strike Participation .......................
B. The President's Announced Grace Period to Return
to W ork ...........................................
1. Denial of meaningful opportunity to reply to the
charge of strike participation ...................
2. Confusion regarding the terms of the
President's announcement .....................
C. Strike Continuation ...............................
D. The Coercion Defense .............................
E. Constructive Suspension Prior to Removal .........
F. Imposition of the Removal Penalty for Strike
Participation ......................................
G. Free Speech .......................................
H. Procedural Issues .................................
V. Unresolved Issues .....................................
Conclusion .................................................
930
931
935
937
940
941
943
943
945
947
948
949
951
952
955
958
961
* Supervisory Attorney, United States Merit Systems Protection Board, Office of Appeals Counsel. The views expressed in this Article are not necessarily those of the Merit
Systems Protection Board.
929
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INTRODUCTION
Since 1912, federal government employees have been statutorily
prohibited, in one form or another, from participating in strikes
against the federal government.' Past strikes in the federal workplace have provided limited opportunity for application and judicial
review of these statutes; 2 case law development of these prohibitions has been minimal except as a basis for the government to obtain injunctions and temporary restraining orders against striking
activity. 3 The nationwide strike of the Federal Aviation Administration's air traffic controllers beginning in August of 1981, however,
provided a good opportunity for governmental application and judicial review of these statutes.
As a result of that strike, the United States Court of Appeals for
the Federal Circuit rendered several decisions having major precedential value in this rather arcane area of the law. 4 Issued in May of
1. Strikes were also prohibited by Executive Orders prior to the passage of comprehensive legislation for Federal labor-management relations in the Civil Service Reform Act of
1978, infra note 5. See, e.g., Exec. Order No. 11,838, 3 C.F.R. 957 (1971-75 Comp.); Exec.
Order No. 11,616, 3 C.F.R. 605 (1971-75 Comp.); Exec. Order No. 11,491, 3 C.F.R. 861, 872
(1966-70 Comp.), reprintedin 5 U.S.C. § 7101 app. at 793-98 (1982) (labor organization shall
not engage in or condone any strike, work stoppage, or slow down); Exec. Order No. 10,988,
3 C.F.R. 521 (1959-60 Comp.).
2. A comprehensive chronological survey of strikes in the Federal workplace from 1835
to 1981 is set forth in A Brief Review ofStrikes, Work Stoppages, Demonstrations, and Related icidents
In The Federal Service, U.S. Office of Personnel Management, Office of Labor-Management Relations (February 1982) [hereinafter cited as A Brief Review].
3. See, e.g., Act of Aug. 24, 1912, ch. 389, § 6, 37 Stat. 539, 555 (prohibiting reduction
in rank or removal of classical civil service employees except for cause, which does not include
membership in any society, association, or organization of postal employees imposing duty on
or assisting members to strike against United States); Act of Dec. 5, 1919, ch. 1, § 1, 41 Stat.
363, 364 (prohibiting members of District of Columbia metropolitan police from joining any
organization that strikes to enforce its demands); Act of'Jan. 24, 1920, ch. 54, § 2, 41 Stat.
396, 398 (prohibiting District of Columbia fire department members from striking); War Labor Disputes Act, ch. 144, §§ 3, 6, 57 Stat. 163, 164-66 (1943) (authorizing President to take
possession of any plant whose operation is interrupted by strike and making illegal any person's participation in strike of plant); Act ofJune 21, 1946, ch. 425, 60 Stat. 262, § 201, 26869 (forbidding paying those who strike against United States out of appropriations contained
in Act; classifying as felony offense, participation in strike while accepting government compensation); Labor Management Relations Act of 1947, ch. 120, § 305, 61 Stat. 136, 160 (making unlawful any strike by, and providing immediate discharge and three years forfeiture of
civil service status for, United States government employees who strike); Act of Aug. 9, 1955,
ch. 690, § 1, 69 Stat. 624, 624 (stating that government shall not employ any person who
strikes against United States); Act of Sept. 6, 1966, Pub. L. No. 89-554, § 1, 80 Stat. 378, 524
(codified in part, as amended at 5 U.S.C. § 7311 (1982)) (providing that individual who participates in or asserts right to strike may not accept or hold position in United States Government); Civil Service Reform Act of 1978, Pub. L. No. 95-454, § 701, 92 Stat. 1111, 1191-216
(codified as amended at 5 U.S.C. §§ 7101-7135 (1982)) (providing comprehensive legislation
for federal labor-management relations).
4. Brown v. Department of Transp., 735 F.2d 543 (Fed. Cir. 1984); Anderson v. Department of Transp., 735 F.2d 537 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984); Letenyei v.
Department of Transp., 735 F.2d 526 (Fed. Cir. 1984); Moylan v. Department of Transp., 735
F.2d 524 (Fed. Cir. 1984); Novotny v. Department of Transp., 725 F.2d 521 (Fed. Cir. 1984);
Dorrance v. Department of Transp., 735 F.2d 516 (Fed. Cir. 1984);Johnson v. Department of
1986]
STRIKING IN THE FEDERAL SECTOR
931
1984, those decisions involved appeals from the United States Merit
Systems Protection Board (Board) 5 by controllers who were discharged for participating in the 1981 strike. This Article reviews the
Federal Circuit's decisions concerning the 1981 strike, and places
the resulting developments in the law of federal sector strikes in
their historical setting.
I.
A
BRIEF HISTORY OF THE STATUTORY PROHIBITIONS
The Lloyd-LaFollette Act of 19126 was the first federal statute to
address the issue of federal employees' striking against their employer. 7 Relating exclusively to postal employees, the Act provided
only that membership in an organization of postal employees did
not constitute grounds for reduction in rank, reduction in pay, or
removal, except when the organization obligated its members to engage in, or proposed to assist its members, in a strike. 8
In 1919 and 1920, Congress enacted laws prohibiting strikes by
District of Columbia police officers 9 and fire fighters.' 0 Those statutes required the immediate removal of any District of Columbia
employee who belonged to an organization that asserted the right to
strike or used a strike to obtain its demands." In addition, both
statutes provided for a fine of up to $300 or imprisonment up to six
months, or both, for employees who conspired or agreed to interfere with or obstruct their employer's operations by a strike or simiTransp., 735 F.2d 510 (Fed. Cir. 1984); Martel v. Department of Transp., 785 F.2d 504 (Fed.
Cir. 1984); Campbell v. Department of Transp., 735 F.2d 497 (Fed. Cir.), cert. denied, 105 S.
Ct. 247 (1984); Adams v. Department of Transp., 735 F.2d 488 (Fed. Cir. 1984); Schapansky
v. Department of Transp., 735 F.2d 477 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984); see infra
notes 86-227 and accompanying text (discussing facts and holdings of air traffic controllers'
strike cases).
5. The Civil Service Reform Act of 1978 established the independent, quasi-judicial
United States Merit Systems Protection Board (Board). See 5 U.S.C. § 1201 (1982). The
Board has statutory jurisdiction over, inter alia, the discharge (frequently termed "removal")
of civil service and preference-eligible employees who have completed either a one-year probationary period, or one year of current continuous service in the same or similar positions.
id. §§ 7511-7513. Consistent with the judicial doctrine of the exhaustion of administrative
remedies, federal courts have held that public employees with appeal rights to the Board must
pursue such an appeal before the courts will acceptjurisdiction. See, e.g., Healy v. Department
of the Navy, No. C-84-7118-MHP (N.D. Cal. Apr. 2, 1986).
With the advice and consent of the Senate, the President has the power to appoint the
Board's three members to seven-year terms. Id. §§ 1201-1202. At the time period relevant to
this Article, the Board was comprised of Chairman Herbert E. Ellingwood, Vice Chair Maria
L. Johnson, and Member Dennis M. Devaney.
6. Act of Aug. 24, 1912, ch. 389, 37 Stat. 539.
7. Id. § 6, 37 Stat. at 555.
8.
Id.
9. Act of Dec. 5, 1919, ch. 1, § 1, 41 Stat. 363, 364.
10. Act of Jan. 24, 1920, ch. 54, § 2, 41 Stat. 396, 398.
11. Act of Dec. 5, 1919, ch. 1, § 1, 41 Stat. 363, 364; Act ofJan. 24, 1920, ch. 54, § 2, 41
Stat. 396, 398.
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[Vol. 35:929
lar activity.' 2
The (Smith-Conally) War Labor Disputes Act of 194313 authorized the President to seize immediate possession of any private industry facility engaged in an activity important to the war effort
which was impeded by a labor dispute. 14 Under the Act, employees
who conspired, coerced, encouraged, or otherwise aided a strike or
other interruption of the operation at a seized facility were punishable by a fine of up to $5,000 and/or imprisonment up to one
year. 15
A 1946 rider to a budget appropriations bill prohibited any person receiving a salary paid out of that appropriations bill from striking against the United States or from joining an organization
asserting the right to do so.16 Violations of the rider constituted a
felony offense, and were punishable by removal, a fine up to $1,000,
7
and/or imprisonment up to one year.'
Up to this time, all of the statutory prohibitions against federal
employees striking had appeared only in legislation having limited
application,18 or limited time span. 19 In 1947, Congress enacted the
Labor-Management Relations Act, otherwise known as the TaftHartley Act. 20 This was the first piece of continuing legislation with
general applicability to federal employees prohibiting them from
striking against their employer. 21 The Act provided for removal,
forfeiture of civil service status, and ineligibility for renewed federal
employment for a period of three years of any federal employee
22
striker.
The Act of August 9, 195523 repealed the Taft-Hartley Act,
12. Act of Dec. 5, 1919, ch. 1, § 1, 41 Stat. 363, 364; Act ofJan. 24, 1920, ch. 54, § 2, 41
Stat. 396, 398.
13. Ch. 144, 57 Stat. 163 (1943).
14. Id. § 3, 57 Stat. at 164-65. The Act was in effect fromJune 25, 1943 through December 31, 1945. See id. § 10, 57 Stat. at 168 (providing for assertion of Act's effectiveness within
six months of termination of war activities).
15. Id. § 6, 57 Stat. at 164-65. This provision was upheld in United States v. United Mine
Workers, 330 U.S. 258, 289 (1947) (affirming restraining order and preliminary injunction to
prevent strike in coal mines under government control during national transition from war to
peace).
16. Act ofJune 21, 1946, ch. 425, § 201, 60 Stat. 262, 268-69.
17. Id. § 201, 60 Stat. at 269.
18. See supra notes 6-12 and accompanying text (discussing federal anti-strike legislation
during years 1912-1920).
19. See supra notes 13-17 and accompanying text (discussing federal anti-strike legislation
during 1940s).
20. Ch. 120, 61 Stat. 136 (1947).
21. Id. § 305, 61 Stat. at 160.
22. Id. Unlike its predecessors, the Taft-Hartley Act specified no criminal penalties for
strikes by federal employees against the government. See supra notes 9-17 and accompanying
text.
23.
Pub. L. No. 84-330, 69 Stat. 624 (1955).
1986]
STRIKING IN THE FEDERAL SECTOR
933
among others, but recodified its provisions. 24 The 1955 Act prohibited strike participation, the assertion of a right to strike, and membership in an organization asserting a federal employee's right to
strike. 25 The Act also required federal employees to execute an affidavit declaring, among other things, that they would not engage in
any of the prohibited activities. 2 6 Federal employees who violated
up to $1,000
the Act's prohibitions were punishable by a fine of
27
and/or imprisonment of up to one year and a day.
In 1966, in connection with a general revision of title 5 U.S. Code
regarding federal employment, Congress revised the strike prohibition to its current form.28 In pertinent part, the general prohibition
provides that,
[a]n individual may not accept or hold a position in the Government of the United States ...
if he ... participates in a strike, or
asserts the right to strike, against the Government of the United
States or... is a member of an organization of employees of the
Government of the United States .
.
. that he knows asserts the
right to strike against the Government of the United States .... 99
Violations of this prohibition are punishable by a fine of not more
than $1,000, and/or imprisonment of not more than a year and a
day.3 0 With only one exception, these 1966 statutory prohibitions
remain in effect today. 31 The 1966 statutory revisions further re24. See id. § 4, 69 Stat. at 625 (stating it is unlawful for officer or employee of United
States government to participate in organization of government employees with knowledge
organization asserts right to strike against United States government or an agency thereof);
101 CONG. REC. 12,299 (1955) (statement of Sens. Johnston and Holland) (noting that Act
entails nothing new but merely codifies and simplifies provisions in previous bills).
25. Act of Aug. 9, 1955, ch. 690, § 1, 69 Stat. 624, 624.
26. Id. § 2, 69 Stat. at 624-25.
27. Id. § 3, 69 Stat. at 625.
28. See Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 378.
29. 5 U.S.C. § 7311 (1982). In making the revision, Congress stated that it sought no
substantive change in the strike prohibition. Act of Sept. 6, 1966, Pub. L. No. 89-554, § 7(a),
80 Stat. 378.
30. 18 U.S.C. § 1918 (1982).
31. In a 1969 ruling, a three-judge panel of the United States District Court for the District of Columbia sustained the complainant association's contention that the language of the
statute that proscribes federal employees from assertingthe right to strike was unconstitutional
because it violated the first amendment right to free speech. National Ass'n of Letter Carriers
v. Blount, 305 F. Supp. 546, 550 (D.D.C. 1969) (action against Postmaster General to challenge employee oath not to assert right to strike), appeal dismissed, 400 U.S. 801 (1970). The
court reasoned that because the oath is a condition of employment and concerns the assertion
of the right to strike, the oath may have a pervasive chilling effect. Id. at 549. The court
therefore struck down that portion of the statute, and the implementing oath of office, as an
abridgment of first amendment rights. Id. at 550-51. The court found no merit in the government's argument that "asserts" refers only to overt incitement of others to strike and not to
the right to advocate changing the law to legalize strikes. Id. at 550. The court stated that
ordinary employees would not realize that the oath allows them to argue for the right to
strike. Id.
In 197 1, another three-judge panel in the same court declined to sustain the complainant's
contention that the strike prohibition itself was unconstitutional. United Fed'n of Postal
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 35:929
codified the initial federal employees' affidavit requirement so that,
as under the 1955 legislation,3 2 a new federal employee must de33
clare that he will not participate in a strike against his employer.
In enacting the Civil Service Reform Act of 1978,34 Congress provided that the conduct of a labor organization in calling or participating in a strike, work stoppage, or slowdown, constitutes an
"unfair labor practice" 3 5 that may be enjoined by the newly created
Federal Labor Relations Authority.3 6 Congress also mandated that
the Authority either revoke the exclusive recognition status of, or
take other appropriate disciplinary action against, any labor organization "willfully and intentionally" committing such an unfair labor
37
practice.
In 1981, the United States Court of Appeals for the Seventh Circuit concluded that Title VII of the Civil Service Reform Act 3 8 does
not preempt federal court jurisdiction over actions involving the
statutory strike ban promulgated under the 1966 legislation.3 9 The
court further held that injunctions under that ban are also within the
40
jurisdiction of the federal courts.
Clerks v. Blount, 325 F. Supp. 879, 885 (D.D.C.), aftd, 404 U.S. 802 (1971). The court held
that there was no constitutional right of federal employees to strike against their employer.
Id. at 882-83. The court held further that the statutory ban on striking did not violate the
employees' rights of free association, free speech, or equal protection. Id. at 884. Noting that
the definition of"strike" in the Taft-Hartley Act of 1947 was of such common usage, the court
held that the pertinent statutory language was not vague or overbroad so as to violate the first
amendment or the due process clause of the fifth amendment. Id. at 884; see 29 U.S.C.
§ 142(2) (1976) (defining strike as "any ... concerted slowdown or other concerted interruption of operations by employees").
32. See supra notes 23-27 and accompanying text (discussing Act of Aug. 9, 1955).
33. See 5 U.S.C. § 3333 (1982) (providing in pertinent part that "[A]n individual who
accepts office or employment in the Government of the United States ... shall execute an
affidavit within 60 days after accepting the office or employment that his acceptance and holding of the office or employment does not or will not violate [the general strike prohibition
cited in text at note 291").
34. Pub. L. No. 95-454, 92 Stat. I111 (1978) (codified as amended at 5 U.S.C. §§ 71017135 (1982)).
35. 5 U.S.C. § 7116(b)(7) (1982). The United States District Court for the District of
Columbia limited the meaning of "unfair labor practice" so as to protect the first amendment
right to informational picketing. National Treasury Employees Union v. Fasser, 428 F. Supp.
295, 299 (D.D.C. 1976). In Fasser, the Internal Revenue Service (IRS) alleged unfair labor
practices by the National Treasury Employees Union for picketing IRS service centers during
negotiations of their collective bargaining agreement. Id. at 297. The court vacated an administrative order banning all picketing of IRS service centers. Id. at 300. According to the
court, this kind of picketing informs the public of the organization's position in a labor dispute, but does not disrupt government operations in any respect. Id. at 299.
36. 5 U.S.C. § 7118(a)(7)(A) (1982).
37. Id. § 7120(f); see also infra note 74 (regarding decertification of Professional Air Traffic Controllers Organization under this provision in 1981).
38. 5 U.S.C. § 7101-7135 (1982).
39. United States v. PATCO, 653 F.2d 1134, 1138-39 (7th Cir.) (returning to 5 U.S.C.
§ 7311 (1982)), cerl. denied, 454 U.S. 1083 (1981).
40. Id. at 1140. On the same day, the United States District Court for the Eastern District of New York reached the same conclusion as the Seventh Circuit, also warning against a
1986]
STRIKING IN THE FEDERAL SECTOR
II.
935
ANTECEDENTS TO THE AIR TRAFFIC CONTROLLER
STRIKE OF
1981
Prior to the widely felt and publicized air traffic controller strike
of 198 1, orchestrated by the Professional Air Traffic Controllers Organization (PATCO), Federal court injunctions and back-to-work
orders were the primary remedy to federal employee strike activities.4 1 Those measures met with varying degrees of success.
In 1962, for example, approximately eighty-five sheet metal
worker employees of the Tennessee Valley Authority (TVA) took
part in picketing a major construction project. 4 2 As a result, 2,600
construction workers declined to cross the picket line and report for
43
duty until the TVA obtained an injunction against the picketing.
The TVA did not seek a back-to-work order, but elected instead to
remove its striking employees under the terms of a collective bargaining agreement. 44 The remainder of its employees returned to
duty.
In 1970, approximately 200,000 postal employees undertook nationwide strike activities. While United States servicemen delivered
the mail, postal officials obtained an injunction against the strike activities, along with a back-to-work order.4 5 As a result of that job
action, Congress passed the Postal Reorganization Act of 1970.46
47 and dispute resoluThe Act covered collective bargaining matters
4 8 and included a strike proscription. 49
tion,
Also in 1970, air traffic controller employees of the Department of
Transportation's Federal Aviation Administration (FAA) began a
"sick-out." Nearly thirty percent of all air traffic controllers
throughout the United States withheld their services, representing
that they could not work due to illness. The FAA obtained temporary restraining orders and back-to-work orders from several federal
district courts. In one of a number of civil actions brought by the
federal employee strike. Air Transport Ass'n v. PATCO, 107 L.R.R.M. (BNA) 3207, 3208-10
(E.D.N.Y. 1981). Both courts issued decisions on June 18, 1981, 4 days before the date on
which PATCO threatened to begin a strike. See ifra notes 62-75 and accompanying text (detailing history of 1981 PATCO strike).
41. See A Brief Review, supra note 2 (reviewing federal strike activity).
42. TVA v. Local 110, Sheet Metal Workers, 233 F. Supp. 997, 999 (W.D. Ky. 1962).
43. Id.
44. Id. at 998-1001.
45. United States v. Branch 60, Nat'l Ass'n of Letter Carriers, 312 F. Supp. 619, 621-22
(D. Conn. 1970).
46. Pub. L. No. 91-375, 84 Stat. 719 (1970) (codified as amended in scattered sections of
39 U.S.C. (1982)).
47. See 39 U.S.C. § 1206 (1982) (outlining collective bargaining agreements).
48. Id. § 1207 (outlining labor dispute resolution).
49. Id.
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THE
AMERICAN UNIVERSITY LAW REVIEW
[Vol. 35:929
government, a district court ordered the strikers to return to work
and then ordered the FAA to cancel disciplinary actions against
those returning strikers.5 0 Finding the district court's orders well
within its discretion, the United States Court of Appeals for the
Tenth Circuit affirmed them.5 '
In a contrasting decision, the United States Court of Appeals for
the Second Circuit found that, despite its issuance of a temporary
restraining order against the air traffic controllers' participation in
the 1970 work stoppage, as a matter of executive discretion, the
FAA still had the power to discipline its employees without judicial
interference.5 2 The Second Circuit observed that, in any event, administrative and judicial review were ultimately available to remedy
arbitrary and capricious disciplinary actions by the FAA. 5 3 The
court further observed that there was a substantial question whether
the statutory strike prohibitions may require the dismissal of all strik54
ing controllers.
The 1970 air traffic controllers' strike was resolved finally by a
settlement agreement.5 5 The FAA and PATCO agreed to a final
judgment permanently enjoining PATCO from any strike or other
concerted interference with the FAA's mission to control air traffic,
unless and until Congress legitimized strikes in the federal sector, or
the Supreme Court determined that Congress' prohibition of such
strikes was unconstitutional.5 6 Neither of these events has occurred.
50. See United States v. Moore, 427 F.2d 1020, 1021 (10th Cir. 1970) (setting forth order
of United States District Court for District of Colorado); see also United States v. Plasch, 75
L.R.R.M. (BNA) 2231 (7th Cir. 1970) (stating that district court did not abuse discretion by
protecting returning air traffic control strikers from sanctions, and noting that this protection
was only way to get striking controllers back to work).
51. United States v. Moore, 427 F.2d 1020, 1024 (10th Cir. 1970). A concurring judge
noted, however, that the FAA should have withdrawn its injunction against petitioners if it
elected to take administrative disciplinary actions against the strikers. Id. at 1025 (Lewis, J.,
concurring). A dissenting judge expressed his view that a court order directing an administrative agency to cancel a disciplinary action constituted a violation of the principle of separation
of powers. Id. at 1027 (Breitenstein, J., dissenting).
52. See United States v. PATCO, 438 F.2d 79, 80-81 (2d Cir. 1970), cert. denied, 402 U.S.
915 (1971). The court noted that the FAA has a statutory duty to determine the need for and
the effect of disciplinary action against those participating in unlawful work stoppages. Id. at
81. In carrying out this duty, according to the court, the FAA uses its administrative expertise
to protect the public's interest. Id. The court thus concluded that discipline based on agency
findings of an unlawful work stoppage falls within the FAA's power. Id.
53. Id. at 81.
54. Id. at 82 n.3 (referring to prohibitions in 5 U.S.C. § 7311 (1982)). Basing his conclusion on § 731 1's legislative history,Judge Waterman, dissenting, was able to resolve the question of§ 731 I's requirements in his own mind. Id. at 85. He found the language of§ 7311 to
be absolute in its requirement that all striking federal employees be discharged. Id.
55. See Air Transport Ass'n v. PATCO, 453 F. Supp. 1287, 1290 (E.D.N.Y.) (detailing
negotiations surrounding settlement of 1970 PATCO strike), a//d without opinion, 594 F.2d
851 (2d Cir. 1978), cert. denied, 441 U.S. 944 (1979).
56. Id. at 1290-91. The agreement also imposed on PATCO a fine of $25,000 per day in
the event it violated the settlement agreement in the future. Id. at 1290.
19861
937
STRIKING IN THE FEDERAL SECTOR
In 1978, PATCO led a nationwide slowdown for four days. 57 The
United States District Court for the Eastern District of New York
found that the 1970 settlement agreement against such an action by
PATCO was still in effect, and that the slowdown violated the agreement. 58 The court then imposed on PATCO a fine in the amount of
$100,000.59 In the summer of 1980, PATCO again initiated a slowdown, this time limited to Chicago. 60 The FAA obtained a temporary restraining order, and ultimately won a permanent injunction
against the slowdown. 61
III.
THE AIR TRAFFIC CONTROLLER STRIKE OF
1981
In 1981, air traffic controllers nationwide threatened to strike
once again. In view of PATCO's past strike activity, FAA officials
had prepared and published a contingency plan for an air traffic
controller strike. 62 The officials also had prepared pleadings for ob57. Id. at 1291. According to Air Transport's affidavits, the alleged cause of the slowdown was frequent refusals by Northwest, Pan American, and Trans World Airlines to permit
air traffic controllers to ride in cockpits on overseas flights. Id. Air Transport's affidavits
detailed the fact that the air traffic controllers sought to observe in-flight techniques on these
flights. Id. The slowdown occurred on May 25 and 26, 1978, and June 6 and 7, 1978. Id.
58. See id. at 1293. Both parties stipulated that, if the court deemed the 1970 injunction
to be effective in 1978, the slowdown would have violated the 1970 settlement agreement. Id.
Thus, the sole issue in this action was the duration and effect of the 1970 settlement injunction. See id. In support of its ruling that the 1970 injunction was in effect in 1978, the court
cited adequate consideration for the 1970 settlement agreement and statutory prohibitions
against federal employees' strikes. Id.
59. Id.
60. See United States v. PATCO, 653 F.2d 1134, 1136 (7th Cir.), cert. denied, 454 U.S.
1083 (1981). PATCO Local 316 President Richard L. Scholz demanded in a July 30, 1980,
letter that the FAA upgrade the O'Hare Tower and provide a tax-free bonus to each controller. Id. Scholz stated in his letter that these demands were nonnegotiable and that failure to
satisfy them would result in O'Hare controllers "withdrawing their enthusiasm." Id. The
slowdown began on Aug. 6, 1980 after the FAA refused Scholz's demands. Id61. Id. at 1136, 1143.
62. Draft National Air Traffic Control Contingency Plan for Potential Strikes and Other
Job Action by Air Traffic Controllers, 45 Fed. Reg. 75,100 (1980). The FAA noted in the
summary to its contingency plan that statements made by PATCO indicated the imminence
and distinct possibility of a nationwide strike in 1981. Id. at 75,100. The FAA declared that
the purpose of its plan was to help "minimize the adverse effects on the national and international air transportation system.. ." if such a strike or otherjob action were to occur. Id. The
FAA went on to set forth its view of the likely adverse effects of the contemplated strike, based
on its experience with strikes in the past:
Job actions by the air traffic control system's controller work force have occurred
in the past. Those actions have varied from local facility actions by controllers to
nationwide actions, and from so-called "by the book" operational slowdowns to full
walkouts.
All such actions are extremely costly to system users, to those who depend on
aviation, and to the public as a whole. The cost of such actions far exceed mere
dollar figures. They cover an almost unlimited scope, including wasted fuel, disrupted supplies to business, consumers, and hospitals, inconvenience to individuals
dependent upon air transportation for business, family emergencies, and vacations
and can impact on military efficiency and preparedness. These actions can, if carried
out on a widespread basis and for prolonged periods, cause business down-turns and
938
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 35:929
taining temporary restraining orders in all appropriate United
States district courts. 63 Before the day of the threatened strike, the
FAA instructed controller supervisors to remind their subordinates
that their participation in a strike would be unlawful, 64 and PATCO
announced that it too, had advised its members that a strike would
65
be illegal.
Just prior to the time for the strike to begin onJune 22, the negotiators reached a tentative agreement, resulting in a postponement
of the strike. An overwhelming majority vote of PATCO members
rejected the tentative agreement, however, and the strike was re-
scheduled to begin on August 3, 1981. Since no settlement could
be reached, the strike began on the morning of August 3.
On that day, the Department of Justice began filing actions for
temporary restraining orders or injunctions in approximately sixty
federal district courts. 66 The Department also threatened criminal
prosecution, and subsequently undertook actions to obtain civil and
criminal contempt citations against striking controllers who did not
follow court orders. 67 Also on the first day of the strike, President
Reagan announced that striking controllers were acting in violation
of the law and their oaths of office, but that they could still report
for duty and not be discharged if they returned to work within forty68
eight hours of his announcement.
failures and subsequent job losses to thousands. The costs of such controller actions
are not always recoverable when the controllers return to work, but can represent
permanent losses to the country.
Id. The FAA listed its order of priority for providing uninterrupted air service to include (1)
air traffic movement required for national defense, (2) medical emergency flights, (3) long
range flights for which no reasonable alternative means of transportation exist, and (4)
shorter range flights capable of serving the most people or national needs. Id. at 75,101.
63. Four days before the threatened beginning of the strike, two federal courts had concluded that they retained jurisdiction over actions involving prohibited federal employee
strikes. See United States v. PATCO, 653 F.2d 1134 (7th Cir.), cert. denied, 454 U.S. 1083
(1981); Air Transport Ass'n v. PATCO, 107 L.R.R.M. (BNA) 3207 (E.D.N.Y. 1981). Seesupra
notes 38-40 and accompanying text (discussing cases).
64. As it had done previously in 1978, Air Transport Ass'n v. PATCO, 453 F. Supp.
1287, ajfd without opinion, 594 F.2d 851 (2d Cir. 1978), cert. denied, 441 U.S. 944 (1979), the
district court stated that the 1970 settlement agreement enjoining PATCO from striking remained in effect, adding that its continued effect wrought no hardship on PATCO members.
Air Transport Ass'n v. PATCO, 107 L.R.R.M. (BNA) 3207, 3208 (E.D.N.Y. 1981). The court
stressed the vital role air controllers play in ensuring public safety. Id. Further, after reiterating that strikes against the federal government constitute crimes, the court reminded PATCO
members of their oath to uphold the laws of the United States. Id. at 3209-10. Finally, the
court stated that the perception of being grossly underpaid and mistreated does not justify
violating the law and striking against the government. Id. at 3210.
65. [Jan.-June] Gov't Empl. Rel. Rep. (BNA) No. 915 (1981).
66. United States v. PATCO, 524 F. Supp. 160, 163 n.2 (D.D.C. 1981).
67. See id. at 162-65 (noting contempt citations previously issued against PATCO and its
president for failing to comply with TRO enjoining further strike activity, but finding contempt citations inappropriate after FAA proposed controller's removal).
68. [July-Dec.] Gov't. Empl. Rel. Rep. (BNA), No. 924, at 5 (1981).
1986]
STRIKING IN THE FEDERAL SECTOR
939
just after the strike began, the FAA sent a telegram to all air traffic
controllers, warning them that their strike was illegal and that their
participation in it would result in removal and the imposition of
criminal penalties. 69 The telegram ordered them to report for their
scheduled work shifts. 70 The FAA then sent notice to every controller who did not report for duty at the first shift to which he was
directed, or regularly scheduled, ordering him to report for the
"deadline shift" at the expiration of the President's forty-eight hour
grace period. 7 1 Once the FAA proposed the removal of controllers
for strike participation after failure to report for their deadline
shifts, the FAA refused to permit those controllers to return to
72
work.
In total, the FAA discharged some 11,000 air traffic controllers
for absence without leave and participation in the PATCO-initiated
strike of August 1981. 7 3 Most of those discharged controllers then
petitioned the various regional offices of the United States Merit
Systems Protection Board for administrative appeal of their removal. 74 Approximately 4,500 of those controllers, dissatisfied with
the regional offices' initial decisions in their appeals, petitioned the
75
full Board for review of those initial decisions.
In anticipation of adjudicating the air traffic controllers' numerous petitions for review, the Board developed a "lead case" concept. 76 The Board members designated an attorney task force to
accomplish two tasks. First, the task force would identify common
legal issues in the related appeals. Second, the task force would locate individual appeals requiring resolution of those common issues. Those appeals would constitute the lead cases in which the
Board could establish precedent for the central issues in many other
69. See Anderson v. Department of Transp., 735 F.2d 537, 539 (Fed. Cir.) (setting forth
text of FAA telegram), cert. denied, 105 S. Ct. 432 (1984).
70. Id.
71. Id.
72. See Martel v. Department ofTransp., FAA, 735 F.2d 504,507-08 (Fed. Cir.) (recounting dismissed air traffic controller's request to resume work and denial of that request), cert.
denied, 105 S. Ct. 432 (1984).
73. See PATCO v. Federal Labor Relations Auth., 685 F.2d 547, 551-52 (Fed. Cir. 1982)
(discussing background of 1981 PATCO strike).
74. PATCO officials represented most controllers before the FAA with regard to their
removal proposals. Those officials could not continue to represent controllers during their
removal appeals, other than on an independent basis, however, because the Federal Labor
Relations Authority had decertified PATCO as a labor organization under 5 U.S.C.
§§ 7116(b)(7) and 7120(f). See PATCO v. Federal Labor Relations Auth., 685 F.2d 547, 59192 (Fed. Cir. 1982).
75. See generally Ellingwood, U.S. Merit Systems Protection Board, A Case Study-Air Traffic
Controllers, Fed. Managers
review).
76. Id. at 7.
Q. (Spring 1985) (discussing air traffic controllers' petitions for
940
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 35:929
cases. 77 To facilitate its consideration of the various arguments and
the major issues involved, the Board twice sought and received ami78
cus briefs from interested parties.
The Board coordinated this lead case approach with the United
States Court of Appeals for the Federal Circuit.7 9 The Federal Circuit ordered that the adjudication of related cases pending before it
be suspended until the court could review the Board's lead cases
80
and issue its own lead decisions.
IV.
THE LEAD DECISIONS OF THE COURT OF APPEALS FOR THE
FEDERAL CIRCUIT
On May 18, 1984 the Federal Circuit issued twelve lead cases in
the air traffic controller appeals. 8 ' With minor exceptions, the
court's decisions affirmed the analyses and conclusions of the Board
on all major issues. 8 2 The court resolved several of the "common"
issues of far-reaching application in Schapansky v. Department of Trans84
portation.8 3 The court resolved the other major common concerns,
along with perhaps less significant issues of agency and Board procedure, 5 in the additional eleven lead cases.
77. Id.
78. See Ketchem v. Department of Transp., 10 M.S.P.B. 557 (1982) (noting receipt and
consideration of amicus briefs concerning 10 common issues); 48 Fed. Reg. 2235-36 (1983)
(providing opportunity for amicus briefs to be filed in air controller cases).
79. See Ellingwood, supra note 75, at 7. The United States Court of Appeals for the Federal Circuit is the only federal appellate court with statutory jurisdiction to hear judicial appeals of final Board decisions on federal employment matters other than statutorily
prohibited discrimination claims. 5 U.S.C. § 7703(b)(1)-(2) (1982); see also Sorrells v. Veterans Admin., 516 F. Supp. 1254, 1261 (S.D. Ohio 1983) (noting that 5 U.S.C. § 7703 grants
jurisdiction to one circuit court to review MSPB cases).
80. In re Air Traffic Controller Litig. (Fed. Cir. Feb. 24, 1983). Ultimately, there were
approximately 1,100 related judicial appeals from the MSPB, involving approximately 3,500
controllers. Ellingwood, supra note 75, at 7.
81. See supra note 4 (citing lead cases).
82. See infra notes 86-226 (discussing cases).
83. 735 F.2d 477 (Fed. Cir. 1984). The "common" issues covered by the Federal Circuit
in Schapansky include: proof of strike participation, see infra notes 86-89 and accompanying
text; meaningful opportunity to reply to the charge of strike participation, see infra notes 10913 and accompanying text; and imposition of the removal penalty for strike participation, see
infra notes 165-78.
84. Other than proof of strike participation, the meaningful opportunity to reply to the
charge of strike participation, and the imposition of the removal penalty for strike participation, the court also addressed the following common issues: confusion regarding the terms of
the President's announced grace period to return to work, see infra notes 124-30 and accompanying text; strike continuation, see infra notes 135-43 and accompanying text; the coercion
defense to strike participation, see infra notes 144-55 and accompanying text; constructive suspension prior to removal, see infra notes 157-64 and accompanying text; and free speech, see
infra notes 179-98 and accompanying text.
85. See infra notes 226-27 and accompanying text (discussing procedural issues). Despite
the Federal Circuit's opportunity to cover thoroughly the law of federal employees' right to
strike, the 12 lead decisions regarding the 1981 PATCO strike left a number of issues unresolved. See infra notes 229-48 and accompanying text.
1986]
STRIKING IN THE FEDERAL SECTOR
A.
941
Proofof Strike Participation
In Schapansky, the Federal Circuit held that striking activity can be
shown through proof of withholding of services in concert with
others, regardless of whether the employee-defendant joined a
picket line.8 6 The court further affirmed the Board's holding that an
agency could establish a prima facie case of strike participation by
showing an employee's unauthorized absence from duty during a
widespread strike of general knowledge.8 7 The Federal Circuit
noted, as had the Board, that consistent with statutory requirements, once the agency establishes a prima facie case of strike participation, the defendant assumes the burden of going forward with
evidence to rebut that showing.8 8 The court also mentioned, however, that the burden of proving the charge of striking remains with
the agency throughout the proceeding.8 9
The Federal Circuit in Schapansky discounted an argument by amici
curiae that the Board allegedly had denied the appellants due process by retroactively subjecting them to a more onerous burden of
proof than the Board had applied in the past.90 The amid contended that the Board previously had applied a standard requiring
proof of active involvement in a strike, such as picketing, to establish
a prima facie case of strike participation. 9 1 The court noted that, in
earlier cases involving picketing and other active involvement in the
strike at issue, the Board had never found that proof of active involvement was required to establish strike participation. 9 2 Conse86. 735 F.2d 477, 482 (Fed. Cir.) (citing to United Fed'n of Postal Clerks v. Blount, 325
F. Supp. 879, 884 (D.D.C. 1971), affd, 404 U.S. 802 (1972)), cert. denied, 105 S. Ct. 432 (1984).
In Schapansky, the court found that a photograph of the defendant, showing him among the
picketers, even though not holding a sign, lent support to a holding of voluntary withholding
of services. Id. at 481.
87. Id. at 480. The court considered the August 1981 PATCO strike to be a "widespread strike of general knowledge." Schapansky v. Department of Transp., 735 F.2d 477,
482 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984).
88. Schapansky v. Department of Transp., 735 F.2d 477,482 (Fed. Cir.), cert. denied, 105
S. Ct. 432 (1984). The court was referring to 5 U.S.C. § 7701(c)(1) (1982) (delineating burden of proof on agency required to withstand Board review). The court mentioned that the
burden shifts to the employee because it is she who is in the best position to explain her
actions. Schapansky v. Department of Transp., 735 F.2d 477,482 (Fed. Cir. 1984). The court
reasoned further that the amount and nature of rebuttal evidence required to overcome the
agency's prima facie showing of striking activity depends on the strength of the agency's evidence in establishing that showing. Id. In Adams v. Department of Transp., 735 F.2d 488
(Fed. Cir. 1984), the court noted that the controllers' failure to explain their absences and
deny the charges against them strengthened the FAA's prima facie case. Id. at 492.
89. Schapansky v. Department of Transp., 735 F.2d 477, 482 (Fed. Cir.), cert. denied, 105
S. Ct. 432 (1984).
90. Id. at 483-84 (citing to Moylan v. Department of Transp., 735 F.2d 524 (Fed. Cir.
1984)).
91. Id. at 484.
92. Id.
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 35:929
quently, the court held that the Board's decision in Schapanshy
3
constituted mere clarification of the requisite standard of proof.
The Federal Circuit concluded that all of the controllers were afforded adequate due process opportunities to introduce evidence
94
contrary to the FAAes case of strike participation.
The court also noted that, contrary to the appellant's contention,
the Board had not ignored the element of intent in the strike participation charge since the Board had noted specifically that circumstantial evidence can prove intent to strike. 95 The Federal Circuit
affirmed the rule that proof of the strike participation charge does
not require proof of specific intent.9 6 The agency need not bring forth
evidence of participating in strike planning, or making an express
agreement with others to strike, to prove that a particular employee
participated in a strike. 97 The court noted that in a strike setting,
circumstantial evidence would be even more persuasive and conclu-
sive than direct evidence. 98 An employee who did not intend to
strike could reasonably be expected to communicate to his employer
as soon as possible the reasons for his absence from duty during the
strike, or to explain why he could not communicate until sometime
later.99
In Letenyei v. Departmentof Transportation,100 the court dealt with the
93. Id.
94. Id.
95. Id. at 483. Contrary to the Federal Circuit's characterization of the Board's opinion,
the Board only implied that the intent element could be proven by circumstantial evidence.
See Schapansky v. Department of Transp., 12 M.S.P.B. 141, 142-43 (1982), aFfd, 735 F.2d 477
(Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984).
96. Schapansky v. Department of Transp., 735 F.2d 477, 483 (Fed. Cir.), cert. denied, 105
S. Ct. 432 (1984).
97. Id. The court stated that general intent would suffice to meet the required burden of
proof, if intent were required at all as an element. Id. In using an employee's unexplained
absence during a strike as an example of general intent, the court equated general intent with
circumstantial evidence. Id.
98. Id.
99. Id. Conversely, the employee who did intend to participate in the strike would not
likely call her employer to notify him of her intent to strike. Her unexplained absence during
the strike would establish intent. Id.
The reasoning the Federal Circuit used is similar to the adverse inference rule, which is
regularly applied in Board proceedings. See Book v. United Postal Serv., 6 M.S.P.B. 322
(1981), afjd, 675 F.2d 158, 160 (8th Cir. 1982). Under the adverse inference rule, the examining body in a disciplinary action may consider the employee's silence in reaching a decision
adverse to the employee. Book v. United States Postal Employees, 675 F.2d 158, 160 n.4 (8th
Cir. 1982). The rule stems from the Supreme Court's decision in Baxter v. Palmigiano, 425
U.S. 308 (1976), in which the Court held that, in a prison disciplinary hearing, the prisoner's
silence could affect the outcome of the hearing, without violating the fifth amendment right
against self-incrimination. Id. at 317-19. In another case involving the 1981 PATCO strike,
Adams v. Department of Transp., 735 F.2d 488 (Fed. Cir. 1984), the court approved of the
Board's drawing an adverse inference against the petitioners who failed to explain their absences at both the agency and the Board levels of review. Id. at 492.
100. 735 F.2d 528 (Fed. Cir. 1984).
1986]
STRIKING IN THE FEDERAL SECTOR
943
issue of PATCO members who were on annual leave during the
strike.' 0 ' Letenyei's supervisor had cancelled his previously authorized leave in light of the impending strike. 10 2 Thinking that this
cancellation violated the union's collective bargaining agreement,
Letenyei stayed on vacation and reported for duty at the end of his
vacation. 0 3 The court held that controllers whose annual leave was
cancelled by notification from the FAA were properly charged with
strike participation during the period of cancelled leave, absent
04
proof of a good faith belief that they were on approved leave.'
The court vacated and remanded Letenyei for the Board to explain
why it rejected Letenyei's explanation for his absence as adequate
rebuttal against the Board's prima facie case of strike participation. 0 5
B.
1.
The President'sAnnounced Grace Periodto Return to Work
Denial of meaningful opportunity to reply to the charge of strike
participation
In Schapansky, as in many of the controllers' appeals, 10 6 the appellants asserted that the President's public announcement on the first
day of the strike 10 7 constituted a final decision to discharge them.10 8
The former controllers alleged that they were denied their statutory
right to a meaningful opportunity to reply to the charges on which
their discharge was based.' 0 9 The court found no merit to this contention of premature decision to discharge. 10 The court noted first
that Schapansky had made no showing whatsoever that, as a result
101. Id. at 529.
102. Id.
103. Id. at 530-31.
104. Id. at 533. The court rejected the controllers' assertion that the FAA could not have
properly cancelled their previously approved annual leave when, under the terms of the collective bargaining agreement between PATCO and the FAA, the requisite "operational emergency" did not actually exist, but was only anticipated. Id. at 531. The court concurred with
the Board's finding that, under the provisions of the agreement, the agency properly cancelled the controllers' annual leave in anticipation of the imminent and reasonably forseeable
operational emergency. Id.
105. Id. at 533.
106. See Anderson v. Department of Transp., 735 F.2d 537, 539-40 (Fed. Cir.) (arguing
that President's forty-eight hour deadline prevented controllers from returning to duty and
precluded adequate notice), cert. denied, 105 S. Ct. 432 (1984); Adams v. Department of
Transp., 735 F.2d 488, 490-91 (Fed. Cir. 1984) (alleging President's announcement to be
confusing and lacking requisite notice).
107. See supra note 68 and accompanying text (discussing President's announcement).
108. Schapansky v. Department of Transp., 735 F.2d 477, 486 (Fed. Cir.), cert. denied, 103
S. Ct. 432 (1984).
109. Id.; see 5 U.S.C. §§ 7511-7513 (1982) (delineating procedures and protections in federal employee removal actions).
110. Schapansky v. Department of Transp., 735 F.2d 477, 486-88 (Fed. Cir.), cert. denied,
103 S. Ct. 432 (1984).
944
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 35:929
of the President's announcement, the FAA would have discharged
him even if he had established, during the statutory opportunity to
respond to his removal proposal,"' that he was absent during the
strike for reasons other than strike participation.' 12 Similarly, the
court found that Schapansky had made no showing that he was
harmed by the shortened notice period. 1 3 The court in Schapansky
found further that the President's announcement had in no way
usurped the agency's authority and responsibility to determine
whether individual air traffic controllers had continued to engage in
the strike after the forty-eight hour deadline. 114 The FAA undertook removal actions against individual controllers stipulating that
removals would be effected only after it was proven that individual
controllers had participated in the strike.' '
The court next stated that the President acted properly, in line
with his official responsibility to "take Care that the Laws be faithfully executed," 1 6 in allowing striking controllers to avoid discharge by reporting for work within the short grace period, and in
requiring the removal of any striking controllers who did not so report. The court reasoned that the President acted so as to balance
the public interest in continuing air transportation, the immediate
enforcement of the law, and an opportunity for the striking controllers to reconsider their actions."17 In concluding, the court stated
that the crucial point defeating Schapansky's argument was his fail111. See 5 U.S.C. § 7513(b)(1) (1982) (requiring 30 days advance notice to employee
against whom an agency action is proposed).
112. Schapansky v. Department of Transp., 735 F.2d 477, 486 (Fed. Cir.), cert. denied, 105
S. Ct. 432 (1984).
113. Id. 5 U.S.C. § 7707(c)(2)(A) (1982) requires that a procedural error be harmful
before an agency action will be overturned based on that error. See id. (discussing petitioner's
claim). A harmful error is one that substantially impairs the employee's rights. 5 U.S.C.
§ 7707(c)(2)(A) (1982). As the court noted, the employee's statutory right to 30 days' advance warning, see supra note I11, does not exist when the agency believes the employee has
committed a crime for which he may be imprisoned. Schapansky v. Department of Transp.,
735 F.2d 477, 486 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984); see 5 U.S.C. § 7513(b)(1)
(1982) (establishing, and creating exception for, time period for advance notice in agency
proceedings); see also 18 U.S.C. § 1918 (1982) (making participation in strike against government crime punishable by fine and/or imprisonment).
114. Schapansky v. Department of Transp., 735 F.2d 477, 486-87 (Fed. Cir.), cert. denied,
105 S. Ct. 432 (1984).
115. Id. at 487. The court found that the FAA's procedures following the strike showed
their "exercise for care of employee rights under difficult and unusual circumstances." Id. In
Schapansky's case, the agency had given him all possible opportunities to reply to the strike
participation charge. Id. at 486. Schapansky had filed three written responses and had responded orally. Id.
116. U.S. CONsT. art. II, § 3.
117. Schapansky v. Department of Transp., 735 F.2d 477. 487 (Fed. Cir.), cert. denied, 105
S. Ct. 432 (1984). The President's announcement was effective in notifying striking controllers of their right to return to work; approximately 1200 controllers did return within the
forty-eight hour deadline. Id. at 486.
1986]
STRIKING IN THE FEDERAL SECTOR
945
ure to show that the FAA would have refused to consider evidence
rebutting its prima facie showing of strike participation.' 1 8
In DiMasso v. Department of Transportation,'19 the court found that
orders by the Secretary of Transportation and other agency officials,
confirming and detailing the President's announcement, did not
predetermine the outcome of DiMasso's case before the agency and
thus make a sham of his statutory right of response to a removal
proposal. 120 The court held that there were, in fact, no such im2
proper directions "from the top down," as DiMasso had alleged.1 '
The Federal Circuit reaffirmed the rule that, in its practice or policy,
an agency may properly predetermine a particular penalty for specified prohibited conduct, as long as an employee charged with committing such conduct has a full opportunity to present evidence
rebutting the charge.' 2 2 The court concluded that DiMasso's failure
lay in his insistence on presenting unfounded procedural objections,
instead of rebuttal evidence, despite the opportunity provided for
him to do so.123
2.
Confusion regardingthe terms of the President's announcement
In Adams v. Department of Transportation,124 the controllers contended that they thought they were discharged when they did not
report for duty before the end of the President's announced fortyeight hour grace period.' 2 5 They asserted that they were unaware
the FAA had interpreted and implemented the terms of the grace
period to allow controllers to report for duty on or before their next
regularly scheduled shift after the expiration of the grace period so
as to avoid removal for strike participation.' 2 6 Characterizing this
argument as "disingenuous," the Federal Circuit observed that the
appellants had failed to explain: why they did not report for duty
118. Id. at 488.
119. 735 F.2d 526 (Fed. Cir. 1984). DiMasso was on annual leave at the time of the strike.
Id. at 526. Unlike Letenyei, however, DiMasso failed to return for his first-scheduled shift
after the President's forty-eight hour deadline. Id. See supra notes 100-05 and accompanying
text (discussing Letenyei decision). The FAA served DiMasso with a notice of proposed removal; he responded but failed to offer any reasons for his failure to return to work at the
scheduled shift. DiMasso v. Department of Transp., supra, at 526. The Federal Circuit affirmed his removal, rejecting, inter alia, his contention that the President's order predetermined the outcome of his case. Id. at 528.
120. Id. at 527-28.
121. Id. at 528.
122. Id. (citing to South Corp. v. United States, 690 F.2d 1368, 215 U.S.P.Q. 657 (Fed.
Cir. 1982)).
123. Id.
124. 735 F.2d 488 (Fed. Cir. 1984).
125. Id. at 490-91.
126. Id.
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THE AMERICAN UNIVERSITY LAW REVIEW
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during the grace period; why they did not notify the FAA before
their removal was proposed that they were not on strike; or why they
did not even attempt to report for duty and declare their willingness
to work prior to their next regularly scheduled shifts. 12 7 The court
concluded:
That one having no intent to strike would so cavalierly accept the
loss of one's job as of [the expiration of the grace period], or
would fail to inquire, or would fail to report or return before [the
expiration of the grace period], or would fail to report for work at
the next scheduled shift, or would fail to explain his absence at the
agency proceeding or before the board, simply defies
128
rationality.
Using the same rationale, the court also discounted the appellants'
argument that the agency had a responsibility to notify each controller individually of his opportunity to report for duty, with no disciplinary repercussions, on or before his next regularly scheduled
shift. 129 In conclusion, the court found singularly unpersuasive the
controllers' argument that their confusion precluded the formation
13 0
of an intent to strike.
In Anderson v. Department of Transportation,'3 1 the controllers asserted that they were fired only for their failure to report for their
"deadline shifts," rather than for their prior strike conduct as
charged.' 32 The Federal Circuit found that argument to be patently
false.' 3 3 The court stated that the President's grace period did not
relieve the controllers of all obligations to their employer during the
34
grace period.
127. Id. at 491.
128. Id. (emphasis in original).
129. Id. The court noted that each controller knew when his next regularly scheduled
shift began. Id. In this case, a number of controllers declined to report at that time. The
court manifested no sympathy for those controllers. Id.
130. Id. The Merit Systems Protection Board had previously held that, since the alleged
confusion generated by the agency was not caused by any illegal acts on the part of the
agency, it was incumbent on the controllers both to notify the agency, in a timely manner, that
they were ready and willing to return to work, and to inquire about reporting within the President's grace period. Campbell v. Department of Transp., 15 M.S.P.R. 92, 105 (1983), afd,
735 F.2d 497 (Fed. Cir.), cert. denied, 105 S. Ct. 247 (1984).
131. 735 F.2d 537 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984). The controllers inAnderson also argued that they were confused by the terms of the President's announcement.
DiMasso v. Department of Transp., 735 F.2d 526, 526 (Fed. Cir. 1984). Finding the controllers' actions devoid of any efforts to clear up the alleged ambiguity, the Federal Circuit held
their argument to be disingenuous. Id. at 539.
132. Id. at 540.
133. Id.
134. Id.
1986]
STRIKING IN THE FEDERAL SECTOR
947
C. Strike Continuation
Prior to the Federal Circuit's lead case decisions involving the
1981 PATCO strike, the Board had taken official notice that an unlawful strike of air traffic controllers began on August 3, 1981, and
was still in progress on August 6, 1981.135 The Board found that
the strike's commencement on August 3 and its continuation at least
until August 6 were a matter of common knowledge. The Board
decided that the strike's continuance beyond August 6, however,
was subject to substantial dispute. 136 The Board therefore held that
the agency must prove by direct evidence that a strike was in progress, and that the fired employee could have returned to work on
the dates after August 6, 1981, for which the employee was charged
l37
with strike participation.
The Board held that evidence to establish the continuation of the
strike on a particular date need not include proof that there were a
certain number of co-workers also withholding their services prior
to their deadline shifts, with whom the employee allegedly striking
could affirmatively interact.13 8 In one decision, the Board found
that the strike continued at the appellant's duty station after August
6, 1981, based on evidence of over ninety percent absenteeism
through September of 1981, continuing picketing through November of 1981, and PATCO officials' failure to make any attempt to
39
end the strike as of November 3, 1983.1
The Federal Circuit pointed out that no petitioner in any of the
court's lead cases had made issue of the Board's propriety in taking
40
official notice of the August 3 through August 6 strike period.'
The Adams appeal did, however, include an analysis of the strike
continuation issue. 4 1 The court determined that the strike continued at appellant Adams' duty station after August 6, 1981, based on
evidence of substantial absenteeism continuing into September, ongoing picketing, statements by PATCO's local branch officials that
the strike was continuing there, the fact that no other striking controllers had yet been terminated, and federal court decisions finding
continued striking nationwide.' 42 From these factors, the court concluded that substantial evidence supported the Board's finding that
135.
136.
137.
138.
139.
140.
141.
142.
Ketcham v. Department of Transp., 10 M.S.P.B. 557, 557-58 (1982).
Id. at 560.
Id. at 562.
Noa v. Department of Transp., 15 M.S.P.R. 126, 138 (1983).
Id.
Adams v. Department of Transp., 735 F.2d 488, 494 n.5 (Fed. Cir. 1984).
Id. at 493-94.
Id.
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[Vol. 35:929
the strike continued beyond the time when one petitioner was sup43
posed to have returned to work.'
D.
The Coercion Defense
In Johnson v. Department of Transportation,144 the Federal Circuit
considered the Board's determination of the requirements for establishing an affirmative defense of coercion. The Board had articulated the coercion defense standard for a federal employee charged
with strike participation against the Government:
[H]e must demonstrate, by a preponderance of the evidence, that
his failure to report for work was the result of a threat or other
intimidating conduct, directed toward him, sufficient to instill in
him a reasonable fear of physical danger to himself or others,
which a person of ordinary firmness would not be expected to
resist. 14The Board had rejected the purely subjective standard that refusing
to work because of perceived threats or danger, regardless of
whether the perception is reasonable, negates any intent to act in
concert with others.' 46 The Board held that "allegations of menacing tones or language, fear of 'financial ruin' or jeopardy to career
advancement, exuberant moral suasion, or any vexation, annoyance
or pressure resulting in a state of mental perturbation, relunctance
to act, or choice of inherently unpleasant situations," do not render
strike participation involuntary. 147 The Board also had rejected the
stringent criminal standard for proving duress.' 48 The criminal
standard requires a showing that, at the time of the prohibited con143. Id. The Federal Circuit rejected evidence presented by the petitioners in the form of
pronouncements and press statements by government officials that the strike was over before
the petitioner's deadline shift. Id. The court also rejected court opinions finding that the
strike had ended earlier. Id. Additionally, the court rejected as "imaginative but without
merit," the petitioners' argument that the sign-carrying picketers may not have been striking
controllers, but were just members of the public exercising their first amendment rights. Id.
at 494. Finally, as to the petitioners' evidence of official government statements, the court
stated that the objective facts outweighed the views of certain government officials. Id.
144. 735 F.2d 510 (Fed. Cir. 1984). Johnson was fired based on evidence, inter alia, that
he had joined the picket line and carried a sign. Id. at 511. He stated that his reason for not
returning to work was not his participation in the strike, but fear for his own and his family's
safety. Id. at 512. The Federal Circuit affirmed the MSPB's rejection ofJohnson's "coercion
defense." Id. at 515.
145. Johnson v. Department of Transp., 12 M.S.P.B. 187, 189 (1982), aff'd, 735 F.2d 510
(Fed. Cir. 1984) (footnotes omitted). The Federal Circuit found the Board's "reasonable
man" standard to be properly objective. Johnson v. Department of Transp., 735 F.2d 510,
514 (Fed. Cir. 1984).
146. See id. at 514-15 (discussing Board opinion). The presiding official at the agency
hearing had used the subjective standard. Id.
147. Johnson v. Department of Transp., 12 M.S.P.B. 187, 191-92 (1982) (footnotes omitted). This standard may often render involuntary actions in civil cases generally.
148. Id. at 190.
1986]
STRIKING IN THE FEDERAL SECTOR
949
duct, "the [employee] was subject to actual or threatened force of
such a nature as to induce a well-founded fear of impending death
or serious bodily harm from which there was no reasonable opportunity to escape other than by engaging in the otherwise unlawful
149
activity."
On reviewing these determinations, the Federal Circuit held that
the Board had not abused its discretion nor committed legal error in
adopting its hybrid standard for proving the defense of coercion or
duress in rebuttal of a charge of strike participation.1 50 The court
modified that holding, however, in Martel v. Departmentof Transportation.151 In Martel, the court held that the Board had erred to the
extent that its coercion standard was limited to a reasonable fear of
physical danger. 15 2 Nonetheless, the court interpreted the Board's
understanding of a subjective coercion defense standard 5 3 as allowing for the possibility that certain exceptional circumstances,
such as threats of harm of a nonphysical nature, may render involuntary an employee's participation in a strike.' 5 4 The court emphasized that evidence of threats of nonphysical harm must be
55
especially strong to render involuntary strike participation.'
E.
Constructive Suspension Priorto Removal
In Martel, the appellant controller contended that he had been
constructively suspended from duty without pay prior to the effective date of his removal.' 56 The court first looked to the pertinent
statutory language and its legislative history to determine the elements of a suspension action. 5 7 From both the statutory language
and the legislative history, the court concluded that an administra149. Id. (citing United States v. Agard, 605 F.2d 665, 667 (2d Cir. 1979)).
150. Johnson v. Department of Transp., 735 F.2d 510, 515 (Fed. Cir. 1984). The Federal
Circuit described the Board's standard as the rejection of a criminal standard, but stricter than
the normal civil standard. Martel v. Department of Transp., 735 F.2d 504, 509 n.9 (Fed. Cir.
1984).
151. 735 F.2d 504 (Fed. Cir. 1984).
152. Id. at 509; see supra text at note 145 (setting forth MSPB's coercion defense standard).
153. See supra note 147 and accompanying text (setting forth subjective standard for coercion defense). The MSPB's subjective standard allowed only that fear of financial ruin or
jeopardy to career advancement may not be enough to render involuntary the employee's
strike participation. Johnson v. Department of Transp., 12 M.S.P.B. 187, 191 (1982).
154. Martel v. Department of Transp., 735 F.2d 504, 509 n.9 (Fed. Cir. 1984). The court
was not too willing to step too far away from the criminal standard for coercion. As it mentioned in Schapansky, striking against the government is a grave and criminal offense that, in
the case of striking PATCO workers, may cause great public inconvenience, injure the national economy, and place at great risk the public safety. Schapansky v. Department of
Transp., 735 F.2d 477, 484 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984).
155. Martel v. Department of Transp., 735 F.2d 504, 509 (Fed. Cir. 1984).
156. Id. at 505.
157. Id. at 506-07; see 5 U.S.C. § 7501(c) (1982) (defining suspension as "the placing of an
employee, for disciplinary reasons, in a temporary status without duties and pay").
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tively appealable suspension exists only when an agency suspends
an employee against his will, without duties or pay for more than
15 8
fourteen days, for disciplinary reasons.
The Board decided in Martel that, in order to establish Board jurisdiction over a suspension action, a discharged controller "must
prove by preponderant evidence that he contacted an agency official
with decision-making authority (in person or otherwise) to communicate unequivocally his availability and his desire to return to
duty." 15 9 The FAA had acknowledged that it would not have permitted a controller who did not report for his deadline shift to return to work. Thus, the Board held, a controller who made a
sufficient attempt to report for duty after his deadline shift and
before the effective date of his removal could be deemed suspended.1 60 The Board found that the agency's acknowledgement in
this regard established the remaining elements of an appealable suspension, that is, involuntary placement in a nonpay, nonduty status
61
for disciplinary reasons.'
With one exception, the Federal Circuit affirmed the Board's standard for determining its jurisdiction over a constructive suspension
in the context of an appeal of a removal action for strike participation. The court found that, in communicating unequivocally that he
is ready, willing, and able to return to work, a controller need not
necessarily convey that information to "an agency official with decision-making authority," as the Board required.' 62 The court did
find, however, that how, and to whom, the controller communicated
his request to return to work was relevant in deciding the factual
question of whether the controller was ready, willing, and able to
work.16 3 In Adams, the court held more generally that, in choosing
to absent themselves, the controllers prevented the agency from
paying them, and raised at least an ambiguity in their pay status,
64
which was clarifiable only by action on their part.
158. Martel v. Department of Transp., 735 F.2d 504, 507 (Fed. Cir. 1984). Although the
court did examine the legislative history of the statute dealing with suspension, it stated that
its responsibility as a reviewing court was to begin with the statutory language, "and to hew
closely to it." Id. at 507 n.6.
159. Martel v. Department of Transp., 15 M.S.P.R. 141, 149-50 (1983).
160. Id.
161. Id.
162. Martel v. Department of Transp., 735 F.2d 504, 507 n.7 (Fed. Cir. 1984).
163. Id. In Martel the Federal Circuit concluded that the appellant did not submit evidence sufficient for the Board to conclude that he had communicated properly to the FAA his
desire to return to work prior to the effective date of his removal. Id. at 508.
164. Adams v. Department of Transp., 735 F.2d 488, 492 (Fed. Cir. 1984).
1986]
STRIKING IN THE FEDERAL SECTOR
F. Imposition of the Removal Penaltyfor Strike Participation
In the Schapansky appeal, the Board did not decide whether it had
the authority to mitigate the imposition of the removal penalty for
strike participation, or whether removal was the mandatory penalty
for strike participation. 165 The Board reasoned that such determinations were unnecessary because removal was not clearly excessive
or disproportionate in the context of the air traffic controller
strike.1 66 The Board focused on the nature and seriousness of the
PATCO strike, the strike's adverse effect on the petitioner's work
ability and his supervisor's confidence in that ability, and the petitioner's refusal to take advantage of the President's announced
forty-eight hour grace period.' 67 The Federal Circuit agreed with
the Board, using the following unrestrained terms:
[T]he gravity and effects of Schapansky's offense are so great, and
the statutes relating to strikes against the United States are so unequivocal, that they do not merely limit the extent
of appropriate
68
mitigation; they render mitigation irrelevant.'
The court also considered the facts that strike participation violates
the solemn oath a federal employee signs as a condition of employment, 69 that striking is a criminal offense, 70 and that striking disrupts the functioning of the government itself.' 7 ' From these
considerations, the court concluded that "[r]emoval under such circumstances was clearly justified, and the nexus between removal
and the efficiency of the service is clear."'
72
The court therefore
confirmed the Board's conclusion that, in the context of the related
air traffic controller appeals, it need not decide whether removal is
statutorily mandated for strike participation.' 73 Removal simply
constitutes a reasonable penalty for strike participation under circumstances such as those surrounding the PATCO strike.
The court held, in addition, that the petitioner's argument of un165.
Schapansky v. Department of Transp., 12 M.S.P.B. 141, 146 (1982).
166. Id.
167. Id.
168. Schapansky v. Department of Transp., 735 F.2d 477, 485 (Fed. Cir.), cert. denied, 105
S. Ct. 432 (1984).
169. 5 U.S.C. § 3333 (1982).
170. 18 U.S.C. § 1918 (1982) (imposing penalties against government workers who strike
against their employer).
171. Schapansky v. Department of Transp., 735 F.2d 477, 484 (Fed. Cir. 1984).
172. Id.
173. Id. at 485. Certainly, removal is permissible under 5 U.S.C. § 7311 (1982) (prohibiting government employees from striking against the government), and 18 U.S.C. § 1918
(1982) (denoting penalties for individuals who strike against the government). The court
knew of no statute prohibiting removal of government employees who strike against the government. Schapansky v. Department of Transp., 735 F.2d 477,485 (Fed. Cir.), cert. denied, 105
S. Ct. 432 (1984).
952
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[Vol. 35:929
evenness in the application of the removal penalty was without
merit.' 7 4 It found that the agency's removal of controllers who did
not report on or before their deadline shifts, while not removing
those who participated in the strike but reported for duty during the
President's grace period, did not constitute disparate treatment. 7 5
The court explained that both groups of controllers had been in the
same status; both had the opportunity to take advantage of the grace
76
period, but only one group did.'
Also in Schapansky, the petitioners postulated another unevenness
of penalty argument. They contended that striking air traffic controllers should not have been removed because other federal government workers had struck and were allowed to return to work.
They noted that some courts have viewed it permissible under certain circumstances to continue striking workers in their employment. The Federal Circuit found this contention meritless. The
court reasoned that these happenstances cannot be viewed as precluding the government from discharging strikers under any circumstances.1 7 7 The court concluded that enforcement of the law with
less than full vigor against one violator does not bind the government against the full and fair enforcement of that law against a later
78
and distinct violator.
G.
Free Speech
In Brown v. Department of Transportation,179 the Federal Circuit considered the controllers' right to speak out about the strike. The
FAA had fired supervisory-controller Brown on the charge of misconduct for making improper statements at a meeting of controllers
that was reported by nationwide television news.' 8 0 The FAA asserted that Brown's statement contradicted the President's public
announcement ordering the controllers to return to duty. Brown
originally appeared at the union hall to dispel rumors that he had
been removed for an altercation with a policeman on agency prem174. Schapansky v. Department of Transp., 735 F.2d 477, 485 (Fed. Cir.), cert. denied, 105
S. Ct. 432 (1984). The court held that unevenness in application of a penalty is not a reason
for invalidating the penalty. Id.
175. Id.
176. Id. The court noted that Schapansky could have, but chose not to, return to work, as
1200 other air traffic controllers had done. Id.
177. Id.
178. Schapansky v. Department of Transp., 735 F.2d 477, 485 (Fed. Cir.), cert. denied, 105
S. Ct. 432 (1984).
179. 735 F.2d 543 (Fed. Cir. 1984).
180. Id. at 544-45. At the time of his statements, Brown was not a member of the air
controller's union. He did not participate in the 1981 nationwide strike. His comments were
made at the local union hall during off-duty hours. Id.
19861
STRIKING IN THE FEDERAL SECTOR
953
ises. When he reached the podium, he said, "I wish you'd all come
back, 'cause I'm too tired and too old to be working these long
hours ....
Stay together, please, because if you do, you'll win."
After he left the podium, Brown told a television reporter that the
strike was illegal, but that he supported some of the strike
demands. 8 1
On Brown's appeal of his discharge to the Regional Office of the
Board, the presiding official found that Brown's statements did
amount to "approval of" and "support for" the strike. He ordered
cancellation of the discharge, however, after concluding that it violated the first amendment right to free speech. He also concluded
that this right was not outweighed by a legitimate agency interest in
the efficiency of federal service.' 8 2 On petition by the FAA to the
full Board for review of the Regional Office's decision, the Board
83
reversed, sustaining Brown's removal.'
The majority 18 4 noted that the FAA based its removal action
solely on the speech set forth above.' 8 5 Thus, it could not be upheld if Brown's speech were found to be within the well established
86
ambit of first amendment protection for government employees.
The Board majority reasoned that, "the public concern ramifications and first amendment protection for [Brown's] speech must be
limited by the fact that his remarks, while not inciting an illegal act,
can clearly be said to have encouraged its continuation in the face of
a national emergency."' 81 7 The majority found that the relationship
of Brown's remarks to a matter of public concern was merely tangential and, therefore, concluded that Brown's speech was entitled
181. Id. at 545 and n.1.
182. Brown v. Federal Aviation Admin., M.S.P.B. No. NY075281F1457 (Aug. 23, 1982),
rev'd, 12 M.S.P.R. (1983), afd in part and remanded sub norm. Brown v. Department of Transp.,
735 F.2d 543 (Fed. Cir. 1984).
183. Brown v. Federal Aviation Admin., 15 M.S.P.R. 221 (1983), afd in part and remanded
sub nom. Brown v. Department of Transp., 735 F.2d 543 (Fed. Cir. 1984).
184. The Board split 2-1 in reversing Brown's appeal. Writing for the majority were
Board Chairman Ellingwood and Vice ChairJohnson. Board member Devaney dissented. Id.
185. Id. at 227.
186. Id. See generally Connick v. Myers, 461 U.S. 138, 140 (1983) (discussing the balancing
required between employee's public speech rights and state's promotion of efficient public
service); Mt. Health City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) (finding teacher's communication to radio station protected under Pickering analysis); Pickering v. Board of Educ.,
391 U.S. 563 (1968) (requiring balancing of teacher's right to comment on matters of public
concern against state's interest in providing efficiency of service).
187. Brown v. Federal Aviation Admin., 15 M.S.P.R. 224, 230 (1983), affid in part and remanded sub nor. Brown v. Department of Transp., 735 F.2d 543 (Fed. Cir. 1984). The Board
believed that at the time Brown made his remarks, the country was in danger of a virtual
shutdown of air travel and shipment. Id. Only 2,308 of the 9,034 controllers scheduled to
work beginning 11:00 a.m. August 3, 1981, actually reported. Id. During the initial five days
of the controllers' strike, the FAA cancelled approximately 26,000 flights, operating at only
69% of normal capacity. Id.
THE AMERICAN UNIVERSITy LAW REVIEW [Vol. 35:929
only to limited first amendment protection.18 8 Continuing its analysis, the Board found that Brown's public support of an ongoing unlawful strike that had already created a national emergency impeded
the agency's mission of public service. 18 9 The Board majority therefore held that Brown's removal did not violate the first
amendment.190
In his dissent, Board Member Devaney explained the basis of his
disagreement with the majority's findings with regard to the first
amendment protection of Brown's remarks, the nexus between
Brown's conduct and the efficiency of the federal service, and the
propriety of the removal penalty for such conduct.' 9 ' Member Devaney based his disagreement with regard to these findings on his
conclusion that the FAA presented no evidence, other than the deciding official's speculative testimony, of any actual harm resulting
from Brown's public statements. Such evidence would be required
to render his statements unprotected under the first amendment
test that balances the extent to which Brown's speech was a matter
of public concern against the FAA's interest in promoting the efficiency of its public service. 19 2 Member Devaney further found that,
even if Brown's conduct was actionable, imposition of the removal
penalty was beyond the bounds of reasonableness for several reasons. Most significant among his reasons was the "egregiously disparate treatment" accorded Brown by his summary removal, while
striking controllers were allowed a forty-eight hour grace period.19 3
On appeal, the Federal Circuit affirmed the Board's decision that
Brown's speech was not protected by the first amendment. 9 4 Focusing on the FAA's interest in promoting the efficiency of its service, the court stated that "[c]ooperation, loyalty, and trust are
particularly important among those managing the operation of a
complex, sophisticated transportation system where the lives of
hundreds of innocent members of the public may, in extreme cases,
depend upon split-second judgment."' 9 5
188.
Id. at 231. The Board noted that, while Brown's remarks related to the national
strike, which was a matter of public concern, its form and content limited his first amendment
interest. Id. at 230. Brown directed his statements to the striking controllers at his facility.
His speech did not contain any information that the public would consider significant in terms
of the safety of air travel or the issues involved in the strike. Id.
189. Id. at 231-33.
190. Id. at 233.
191. Id. at 238-51 (Devaney, dissenting).
192. Id. at 241-44. See Brown v. Department of Transp., 735 F.2d 543, 546 (Fed. Cir.
1984) (discussing first amendment test for government employees as enunciated in Pickering
v. Board of Educ., 391 U.S. 563 (1967)).
193. Id. at 251.
194. Brown v. Department of Transp., 735 F.2d 543, 548 (Fed. Cir. 1984).
195. Id. at 547. The Federal Circuit considered the following factors in determining that
1986]
STRIKING IN THE FEDERAL SECTOR
955
In considering the appropriateness of the removal penalty imposed on Brown, however, the court noted that Brown's stated wish
during his speech-that the striking controllers "all come back"was evidence that he actually supported the President's order that
the controllers return to duty.' 9 6 The court considered other factors in Brown's favor,' 9 7 and remanded the appeal to the Board for
98
mitigation of its removal penalty.1
H.
ProceduralIssues
In addition to the substantive issues that the Federal Circuit resolved in the PATCO strike cases, the court resolved several procedural issues. These issues arose in connection both with the FAA's
procedures in effecting controller discharges based on federal strike
participation, and with the Board's procedures in adjudicating appeals of those discharges.
In Schapansky, the court held that the FAA properly invoked the
"crime provision"' 199 to shorten the otherwise required thirty-day
period between the notice of proposed removal and the effective
date of the removal action on charges of strike participation. 20 0 The
statutory provision allows a shortened notice period when, as here,
the agency had "reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed." 20 1 The court noted that a separate statutory provision
makes strike participation against the government a criminal offense
punishable by imprisonment for up to one year, thus meeting the
Brown's statement could interfere with the FAA's smooth operation: the timing of his remarks, only 36 hours after the strike had begun; his position as a supervisor; and the content
of his remarks, which encouraged the striking workers to stay together. Id. These factors are
also part of the nexus requirement that the agency show the necessary connection, in terms of
promoting efficient service, between the employee's offending conduct and his job-related
responsibilities. Id. at 548. The court found that this "limitation" requirement was met in
Brown's case. Id.
196. Id. at 549.
197. Id. According to the court, the factors weighing in Brown's favor were his 25 years of
federal service, his nonparticipation in the strike, his willingness to work 12 hour shifts during
the strike, and the brevity and ambiguity of the remarks he made in connection with the
speech in question. Id.
198. Id. On remand, the Board ordered the FAA to cancel Brown's removal and to substitute a demotion to a nonsupervisory position with the least possible reduction in grade level.
Brown v. Department of Transp., 21 M.S.P.R. 572, 573 (1984).
199. See 5 U.S.C. § 7513(b) (1982) (entitling employee against whom action is proposed
30 days' advance written notice unless reasonable cause to believe employee committed crime
that could lead to imprisonment).
200. Schapansky v. Department of Transp., 735 F.2d 477, 486 (Fed. Cir.), rert. denied, 105
S. Ct. 432 (1984).
201. 5 U.S.C. § 7513(b) (1982).
956
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[Vol. 35:929
requirement for the shortened notice period. 20 2 In Novotny v. Department of Transportation,20 3 the court held that, contrary to the controllers' contention, the agency was not required to conduct an
independent investigation of the criminal charge of strike participation before shortening the statutory notice period.2 0 4 The court
ruled that the existence of a reasonable belief in strike activity alone
20 5
warranted invocation of the crime provision.
In Adams, the court ruled on the FAA removal notices' provision
requiring reply "within seven calendar days." The court held that
the provision did afford the controllers the statutory minimum of
seven full days to reply to a notice of proposed removal. 20 6 The
court concluded further that no reversible, prejudicial, or harmful 20 7 procedural error had been shown. 208
In Campbell v. Department of Transportation,20 9 the Federal Circuit
dealt with the controllers' contention that the FAA should have informed them of the schedule for oral replies to their removal proposals. The court held, to the contrary, that "it is incumbent on an
employee to take the initiative in scheduling the time to exercise [his
statutory] right" to such reply.2 10 Finding that no requests for oral
reply had even been submitted during the seven-day reply period,
the court also discounted the controllers' contention that it would
have been impossible for all of them to make oral replies within the
time period allotted by the FAA.211
The discharged controllers raised the additional argument that
the FAA had a duty to advise them of their fifth amendment right
202. Schapansky v. Department of Transp., 735 F.2d 477, 486 (Fed. Cir.), cert. denied, 105
S. Ct. 432 (1984) (discussing 18 U.S.C. § 1918 (1982)).
203. 735 F.2d 521 (Fed. Cir. 1984).
204. Id. at 523.
205. Id. The court stated that Novotny's unexplained absence during the well-publicized
strike was enough to establish a reasonable belief that he bad participated in the strike. Id.
206. Adams v. Department of Transp., 735 F.2d 488, 490 n.3 (Fed. Cir. 1984) (referring
to 5 U.S.C. § 7513(b) (1982)).
207. See 5 U.S.C. § 7701(c)(2)(A) (providing for overruling of agency's decision if employee shows misapplication of agency procedure resulting in harmful error).
208. Adams v. Department of Transp., 735 F.2d 488, 490 n.3 (Fed. Cir. 1984) (referring
to 5 U.S.C. § 7513(b) (1982)).
209. 735 F.2d 497 (Fed. Cir.), cert. denied, 105 S. Ct. 247 (1984). Campbell and other air
traffic control specialists were removed by the FAA for striking against the United States government and for being absent from duty. After receiving notices of proposed removal, none
of the controllers made a reply affirming or denying the striking charges. The local air traffic
control chief told the strikers' representative that the controllers should call the control center
to schedule their oral responses. The center received no replies, and subsequently removed
the controllers. Id. at 498.
210. Id. at 499. The statute does not require the agency to take the initiative to schedule
replies. Id.; see 5 U.S.C. § 7513(b) (1982) (providing right to reply to agency charge).
211. Campbell v. Department of Transp., 735 F.2d 497, 500 (Fed. Cir.), rert. denied, 105 S.
Ct. 247 (1984).
1986]
STRIKING IN THE FEDERAL SECTOR
957
against self-incrimination when they submitted responses to their
removal proposals. They based their argument on the fact that
strike participation is a criminal act. The court found no merit to
this argument in DiMasso.21 2 The controller's opportunity to reply
to his removal proposal did not reach the level of a custodial interrogation, the court held.2 13 Further, the right against self-incrimination has no legal consequence in civil proceedings such as this
214
one for removal.
In Novotny, the court held that the agency's failure to send the
controller-appellant copies of the materials it relied on to decide the
charges against him did not constitute reversible harmful procedural error.2 1 5 The court reasoned that the agency's policy of requiring its employees to review those materials at the individual
FAA facilities where the employees worked was, at most, an
2 16
inconvenience.
The Federal Circuit also considered the number of procedural issues surrounding the Board's adjudication of the controller removal
2 1 7 the court held
appeals. In Dorrancev. Department of Transportation,
that the Board's consolidation of controller Dorrance's appeal with
other related controller appeals was properly effected under 5
U.S.C. § 7701(0.218 The consolidated appeals involved similar legal
issues and questions of fact, as well as common legal counsel. The
court found no showing of due process deprivation in the
2 19
consolidation.
The court also found that the FAA and the Board's regional offices had not unduly delayed the adjudication of these appeals, especially in light of the extraordinary number of appellants involved.
Addressing the petitioner's allegations of evidentiary errors, the
court held that the FAA's documentary evidence in the form of
schedules, logs, and attendance records constituted admissible and
212. DiMasso v. Department of Transp., 735 F.2d 526, 528 (Fed. Cir. 1984).
213. Id. The court noted that DiMasso did not have to testify in order to keep his job; he
was free to deny the charges of strike participation if he so chose. Id.
214. Id.
215. Novotny v. Department of Transp., 735 F.2d 521, 523 (Fed. Cir. 1984).
216. Id.
217. 735 F.2d 516 (Fed. Cir. 1984).
218. Id. at 519. The Board, its administrative law judge, or other employee designated to
hear cases, may consolidate appeals if that will result in more expeditious processing of the
appeal and will not adversely affect any party. 5 U.S.C. § 7701(f) (1982). The court noted
that Dorrance had not objected to the consolidation until his appeal to the Federal Circuit.
Dorrance v. Department of Transp., 735 F.2d 516, 519 (Fed. Cir. 1984); see also Moylan v.
Department of Transp., 735 F.2d 524, 525 (Fed. Cir. 1984) (upholding Board's consolidation
of controller appeals on basis that controller had waived any objection by requesting
consolidation).
219. Dorrance v. Department of Transp., 735 F.2d 516, 520 (Fed. Cir. 1984).
958
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[Vol. 35:929
probative hearsay evidence, which was properly considered by the
220
Board as an administrative, rather than judicial, tribunal.
Finally, the court in Campbell considered the controllers' contentions that the Board had twice violated their constitutional right to
due process. 22 1 First, the controller alleged the existence of ex
parte communications between a Board official involved in the adjudicatory process and the FAA's Deputy General Counsel regarding
the controller appeals. Second, the controller alleged that the
Board had circulated to its regional offices memoranda of law prepared by the Board's General Counsel concerning legal issues in the
controller removal appeals. The controllers asserted that the first
course of action contravened Board regulations prohibiting ex parte
communications, 222 and that the second course of action violated
the statutory prohibition against the Board's issuance of advisory
opinions. 223
The court noted that the controllers had acknowledged that the
alleged ex parte communications alone were not sufficient to warrant reversal of the Board's decision, 224 and so went on to consider
the alleged advisory opinions violation. The court held that the
General Counsel's memoranda, which were circulated among Board
employees only, did not constitute the advisory opinions prohibited
by statute. 225 The court reasoned that part of the General Counsel's
function is to provide legal advice to the Board and its staff.22 6 The
court read the statutory prohibition of advisory opinions by the
Board as relating only to providing such opinions to the public.22 7
V.
UNRESOLVED ISSUES
Neither the Federal Circuit nor the Board has resolved the issue
of whether the statutory strike prohibition requires the discharge of a
federal employee who has participated in a strike against his em220. Id. at 519.
221. Campbell v. Department of Transp., 735 F.2d 497 (Fed. Cir.), cert. denied, 105 S. Ct.
247 (1984).
222. Id. at 500-01; 5 C.F.R. §§ 1201.101-1201.103 (1985).
223. Campbell v. Department ofTransp., 735 F.2d 497, 500-01 (Fed. Cir.), cert. denied, 105
S. Ct. 247 (1984); see 5 U.S.C. § 1205(g) (1982) (prohibiting Board from issuing advisory
opinions).
224. Campbell v. Department of Transp., 735 F.2d 497, 500 (Fed, Cir.), ceri. denied, 105 S.
Ct. 247 (1984). The Board's Ethics Officer had found that the communications at issue involved strictly procedural matters which did not relate to the merits of any particular Board
appeal. Id. The communications therefore did not constitute prohibited ex parte communications under 5 C.F.R. §§ 1021.101 and 1201.102 (1985). Id.
225. Campbell v. Department of Transp., 735 F.2d 497, 501 (Fed. Cir.), rer. denied, 105 S.
Ct. 247 (1984).
226. Id. at 501 (referring to 5 C.F.R. § 1200.10(c) (1985)).
227.
Id.
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STRIKING IN THE FEDERAL SECTOR
959
ployer. 228 The court and the Board both noted in the Schapansky
appeal that the question of mandatory removal need not be decided
because the FAA had already removed the striking controllers who
appealed, and because the statute at least permitted removal on that
basis.2 29 In Schapausky, the Federal Circuit did hold, however, that
"[w]hether the long range efficiency of the service is better served
by capitulation [to strikers' demands], with its risk of encouraging
future strikes, or by a temporary reduction in service while new controllers are trained, is solely a policy choice reserved to the executive branch. ' 230 The court held further that the President has a
constitutional duty to assure that the laws are faithfully executed, 23 '
and that he acted properly here by balancing the public interest in
continued air transportation against the public interest in enforce23 2
ment of the law.
Constituting only dicta, these statements by the court may be read
to suggest that the discharge of striking federal employees is certainly permissible, but not mandatory. On the other hand, perhaps
all the court suggests in Schapansky is that the President possesses a
"prosecutorial discretion" to decide when enforcement of a
mandatory removal statute best serves the public interest.
In its decision in the Schapansky appeal, the Board noted one
could read the statutory strike prohibition, 5 U.S.C. § 7311, to require removal as the mandatory penalty for striking federal employees. 233 This appears to coincide with implications from the Federal
Circuit's dicta on the issue of Presidential prosecutorial discretion.
The Board pointed out, further, that the United States Court of Appeals for the Ninth Circuit had held that an "agency may not be
required, based on a mitigation theory, to reinstate an employee
who was removed pursuant to section 7311(3) for participation in a
strike." 234
Other issues relating to air traffic controller strike participation
and the provisions of 5 U.S.C. § 7311 continue to surface. On De228. See supra notes 165-73 and accompanying text (discussing Board's determinations in
Schapansky).
229. Schapansky v. Department ofTransp., 735 F.2d 477,485-86 (Fed. Cir. 1984), afg 12
M.S.P.B. 141, 145-46 (1982), cert. denied, 105 S. Ct. 432 (1984).
230. Id
231. U.S. CONST. art. II,§ 3.
232. Schapansky v. Department of Transp., 735 F.2d 477, 487 (Fed. Cir.), cert. denied, 105
S. Ct. 432 (1984).
233. Schapansky v. Department of Transp., 12 M.S.P.B. 141, 145 (1982), aff'd, 735 F.2d
477 (Fed. Cir.), cert. denied, 105 S.Ct. 432 (1984).
234. Id. (citing to American Postal Workers v. United States Postal Serv., 682 F.2d 1280,
1285 (9th Cir. 1982) (holding that reinstatement of postal employee would violate 5 U.S.C.
§ 7311), cert. denied, 459 U.S. 1200 (1983).
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cember 9, 1981, the President issued a "Statement on Federal Employment of Discharged Air Traffic Controllers." 23 5 The President
extended to discharged strikers "an opportunity to reapply for federal employment in departments and agencies other than the Federal Aviation Administration." 23 6 Along with that statement, the
President issued a directive to the Office of Personnel Management
(OPM) to permit discharged controllers to apply for federal employment outside the scope of their former employing agency. The
President's directive also mandated that the OPM "perform suitability determinations with respect to all such applicants according to
the established standards and procedures under 5 C.F.R. Part
731."237
In Caruso v. Office of PersonnelManagement,2 38 the MSPB considered
the reemployment applications of several controllers who had been
discharged for participation in the 1981 strike. Five discharged controllers filed appeals with the Board concerning negative suitability
determinations rendered by the OPM. The controllers had applied
to the Department of Defense for air traffic control specialist positions with the agency's Pacific Missile Test Center in California.
The OPM determined that the discharged controllers were not suitable for those positions because the positions involved working in
joint air traffic control operations with FAA controllers. 23 9
In its Caruso decision, the Board reversed its presiding official's
initial decision finding that, despite the provision of 5 U.S.C.
§ 7311(3) forbidding an individual who has participated in a strike
against the Federal Government from holding a civil service position, the appellant controllers were not barred from federal employment with agencies other than the FAA. 24 0 The Board held simply
that, "[in light of the seriousness of appellants' strike participation,
...and the sensitive nature of the ...position in view of its interrelationship with FAA controllers, . . . [t]he suitability disqualification
of each appellant promotes the efficiency of the service."'2 4' Thus,
in line with the Federal Circuit's decision in Schapansky,2 42 the Board
held in Caruso that it need not determine whether 5 U.S.C. § 7311
235. PUB. PAPERS, 1148-49 (1981).
236. Id.
237. Id.; see 5 C.F.R. Part 731 (1983).
238. 22 M.S.P.R. 162 (1984).
239. Id. at 164. The OPM's practice was to find discharged controllers suitable for employment in Department of Defense air traffic control specialist positions only when those
positions did not involve engaging in joint control operations with FAA controllers. Id. at 164
n.6.
240.
241.
242.
Id. at 165.
Id. at 164.
735 F.2d 477 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984).
1986]
STRIKING IN THE FEDERAL SECTOR
961
precludes the reemployment of federal workers who had been discharged for participating in a strike against the United States government. 2 43 Neither, the Board held, did it have to decide whether
the President's statements regarding re-employment prevail over, or
are permissible under 5 U.S.C. § 7311.244
In Wagner v. Office of Personnel Management,24 5 the Federal Circuit
recently considered a class action by controllers discharged for
strike participation. The controllers appealed the OPM's refusal to
make suitability determinations on their applications for reemployment with the FAA less than three years after their discharge, based on
the President's December 1981 directive. The court sustained the
Board's decision that former air traffic controllers discharged for
striking were not suitable for re-employment with the FAA. 24 6
In Murphy v. Office of PersonnelManagement and Meyer v. Office of Personnel Management, the Board considered two additional appeals of
regional office initial decisions on the same issue. 24 7 In the latter
case, however, the OPM made a negative suitability determination,
also based on the President's December 1981 directive, concerning
the appellant's application for re-employment with the FAA more
than three years after the appellant's discharge for strike participation.24 8 In both appeals, the discharged controllers had argued that
the OPM's application of the President's directive was unlawful,
both procedurally and substantively. They contended that the OPM
misinterpreted the terms and legislative history of 5 U.S.C. § 7311,
in extending what should have been a three-year debarment from
employment, specifically with the FAA as controllers, to an indefinite debarment. The Board disagreed and affirmed the OPM's deci24 9
sions in both cases.
CONCLUSION
The administrative and judicial decisions rendered in the wake of
243. Caruso v. Office of Personnel Management, 22 M.S.P.R. 162, 166-67 (1984). See
supra notes 165-73 and accompanying text (discussing Schapansky decision with respect to 5
U.S.C. § 7311 (1982)).
244. Caruso v. Office of Personnel Management, 22 M.S.P.R. 162, 166-67 (1984).
245. No. 85-2389, slip op. (Fed. Cir. Feb. 16, 1986).
246. Id. at 1.
247. See Murphy v. Office of Personnel Management, M.S.P.B. No. CH07318410464 (Feb.
22, 1985) (affirming OPM decision to close, without further action, Murphy's suitability determination file for employment with FAA); Meyer v. Office of Personnel Management, M.S.P.B.
No. NY07318310272 (July 17, 1984) (affirming OPM decision finding applicant ineligible to
apply for position of air traffic controller at new location).
248. Meyer v. Office of Personnel Management, M.S.P.B. No. NY07138310272, at 1 (July
17, 1984).
249. See supra note 247 (discussing Board's affirmation of similar OPM decisions).
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the 1981 air traffic controller strike have added significantly to the
body of law on striking in the federal sector. The Federal Aviation
Administration's overall handling of the strike, which essentially was
affirmed on both administrative and judicial appeal, might be considered by federal agencies as a guide to the proper handling of a
strike, potential or actual. The full ramifications of the statutory
strike participation prohibition, however, have yet to be adjudicated.
Further development of its proper application may be anticipated in
subsequent decisions arising out of the appeals from the more than
11,000 discharged air-traffic controllers.