Linda J. Darnell (Rose) v. Department of Transportation, Federal Aviation Administration

807 F.2d 943, 126 L.R.R.M. (BNA) 2628, 1986 U.S. App. LEXIS 20399

Opinions

RICH, Circuit Judge.

This appeal is from the February 25, 1983, final decision of the Merit Systems Protection Board (board), in Nos. DC075281F1026 and DC075281F1097, sustaining the decisions of the Federal Aviation Administration (FAA) to remove petitioners Linda J. Darnell and Robert Martin-kovic from their positions as air traffic controllers based on their participation in the illegal strike called in 1981 by the Professional Association of Air Traffic Controllers (PATCO) and for being absent without leave (AWOL) during the strike. Oral argument was heard on April 28, 1986. We affirm.

I. Background and Issue Presented

The background facts of the PATCO strike are set forth in the “lead cases” of this court in the air traffic controller litigation. See Schapansky v. Department of Transportation, Federal Aviation Administration, 735 F.2d 477 (Fed.Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 358 (1984).

Petitioner Robert Martinkovic was on approved leave or regular days off from sometime in July, 1981, through August 9, 1981. He was charged with striking and being AWOL on August 10 after he failed to report for duty on his deadline shift that day.

Petitioner Linda J. Darnell (Linda J. Rose at the time of these events) was charged with striking and being AWOL from August 4 to 6, 1981, in a notice of proposed removal issued August 6, 1981.

Both petitioners replied in writing

Footnotes

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* to their notices of proposed removal within the proper seven-day period, notifying their facility chief of their intent to answer the charges in person, requesting an opportunity to review the evidence on which the charges were based and stating, inter alia, that “there is no basis to the charge that I have committed a crime for which a sentence of imprisonment may be imposed.” Petitioners were removed before these written replies were received. Upon receipt, the agency reviewed the replies and determined and advised petitioners that they contained nothing to alter the removal decisions.

Petitioners appealed to the MSPB urging reversal of their removal on various technical grounds.

The broad issue presented by this appeal is whether petitioners’ constitutional rights were abridged because the FAA did not give them “an explanation of the employer’s evidence and an opportunity to present their side of the story” basing their arguments on Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). “Their side of the story” includes the specific arguments made to the MSPB which presumably would have been made to the agency including adequacy of the notice of proposed removal, failure of the FAA to prove the strike was still going on when they were AWOL, that the facility would not have permitted petitioners to work if they had tried, and the fact the FAA made a mistake in sending out a form letter saying they had made no reply.

II. Opinion

In Loudermill, the United States Supreme Court stated that “[t]he opportunity to present reasons, either in person or in writing, why proposed action [to remove a public employee] should not be taken is a fundamental due process requirement.” 470 U.S. at 546,105 S.Ct. at 1495. All that is required to meet the essential requirements of due process “are notice and an opportunity to reply.” Id. at 546,105 S.Ct. at 1495. The August 6 and August 10, 1981, notices of proposed removal provided petitioners with detailed reasons for the adverse action and the location and the person to contact for review of the materials relied upon by the agency to support the removal action. The notices further stated that “you may reply to this notice personally, in writing or both, and furnish affidavits and other documentary evidence in support of your answer to me, within 7 calendar days after you receive this letter.”

Hence, the agency clearly met the first two parts of the tripart test set forth in Loudermill. “The tenured public employee is entitled to [1] oral or written notice of the charges against him, [2] an explanation of the employer’s evidence, and [3] an opportunity to present his side of the story.” Loudermill, 470 U.S. at 546, 105 S.Ct. at 1495. Implicit in the third part of the test is that an opportunity be given an employee to present his side of the story; not a guarantee that the employee must present his story to the agency prior to removal. An opportunity to present is quite different from a presentation in fact.

Both petitioners replied in writing to these notices within the seven-day period. Unfortunately, the replies were not received by the agency until after the expiration of the seven-day period and after issuance of the removal letters. However, the agency reviewed the replies and determined and advised petitioners that they contained nothing to alter the removal decision. Hence the petitioners were afforded an opportunity to present their, side of the story at the agency level and any errors committed by the agency were in the nature of procedural errors and were not errors of constitutional dimension.

In the context of criminal cases, the Supreme Court has stated that the Constitution entitles a criminal defendant to a fair trial, not a perfect one. Delaware v. Van Arsdall, — U.S. -, -, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986); United States v. Hasting, 461 U.S. 499, 508-09, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). Similarly, in the context of federal employee cases, the Supreme Court stated:

We do not believe that Congress intended to force the Government to retain these erring employees solely in order to “penalize the agency” for nonprejudicial procedural mistakes it committed while attempting to carry out the congressional purpose of maintaining an effective and efficient Government.

Cornelius v. Nutt, 472 U.S. 648, 105 S.Ct. 2882, 2891, 86 L.Ed.2d 515 (1985) (citation and footnote omitted). Title 5 of the U.S. Code, § 7701(c)(2)(A) provides specifically that the agency’s decision should be overturned only “if the employee shows harmful error in the application of the agency’s procedures." 5 C.F.R. § 1201.56(c)(3) defines “harmful error” as error which might have caused the agency to reach a different conclusion than the one reached. Accord Cornelius v. Nutt, supra.

Petitioner’s standardized PATCO form “reply” to the agency’s notice of proposed removal stated merely that “there is no basis to the charge that I have committed a crime for which a sentence of imprisonment may be imposed.” Such a response cannot suffice to overcome a prima facie showing of strike participation. An unre-butted prima facie case of strike participation amounts to proof of the charges by a preponderance of the evidence. Hale v. Department of Transportation, 772 F.2d 882, 885 (Fed.Cir.1985).

The initial replies filed by petitioners in this case do not indicate that petitioners could or would have presented proof prior to the issuance of the removal letters that could have affected the FAA’s factual conclusion that both petitioners participated in the strike. Thus, the perhaps premature issuance of the removal letters in the context of this case, where the written replies by the petitioners were considered by the agency after the fact and do not on their face give any indication that receipt of the replies prior to issuance of the removal letters could have affected the agency’s underlying factual conclusion, was harmless error. Moreover, petitioners had a full opportunity to present their additional defenses at their de novo hearings before the board. None of the defenses were legally sufficient, and none was a defense which might invoke the discretion of the agency’s deciding official not to remove them. Thus, they were not denied “the only meaningful opportunity to invoke the discretion of the decision-maker.” Loudermill, 470 U.S. at 543, 105 S.Ct. at 1494. Accord Smith v. U.S. Postal Service, 789 F.2d 1540 (Fed.Cir.1986). The arguments in the briefs before this court have all been considered and none justifies any change in the board decision.

III. Conclusion

Accordingly, the decision of the board is affirmed.

AFFIRMED.

These were identical “lawyer letters," obviously provided by PATCO, appointing a Mr. Ferman of PATCO to be their representative, and asserting various demands and legal propositions under statutes and regulations. Petitioners simultaneously signed and sent identical requests to FAA under the Freedom of Information Act for multifarious kinds of information and documents in three different categories. See Dor-rance v. DOT, FAA, 735 F.2d 516, 518 (Fed.Cir. 1984).