Original counsel for the plaintiffs in this case was from the office of McVerry, Baxter, Cindrich, Loughren & Mansmann. A motion to withdraw appearance for counsel was made because one of their members became the United States Attorney. The motion for withdrawal was granted because the plaintiffs had advised the court that substitute counsel had been secured. However, Larry Zurawsky, Esq., never entered his appearance and informed the court by letter that he could not represent these plaintiffs. The court then advised Assistant United States Attorney Joel Strauss to obtain the addresses of all the plaintiffs in order that notices might be given to them so that we could proceed with the motions for summary judgment which had been filed by both the plaintiffs and the defendants. Attorney Thomas Michalek entered his appearance for the plaintiffs on March 11, 1981. The determination is now being made upon the entire record as a whole as authorized by law.
It is incumbent upon me to examine the record and the facts of the case as they were found by the examiner. From this examination of the examiner's report and the record itself, primarily of each individual doctor's certificate as it blends in with the findings of fact by the examiner, I find that approximately 2800 or about one-fourth of the total employment of air traffic controllers in the United States failed to report for work in their respective stations of employment on March 24, 1970.
In Pittsburgh, on March 24th, on the morning tour, eight out of thirteen failed to report; on the night tour thirteen out of fourteen failed to report. The trend continued in similar fashion through April 12th, when all returned to their employment. Just as extraordinarily as 20 air traffic controllers simultaneously became ill to the point of not being able to report to work on March 24th, and as extraordinary as was the similarity of the length of such inability to report to work, more extraordinary was the synchoneity by which all were able to report back to work the week of April 12th.
As for the reasons which each of these gave to the FAA for their failure to report for work in almost sum total they related to upper respiratory ailments with accompanying complaints. As an instance, checking one at random, it read "Ill. Under my care" or "Under my care for mass(?) infection on above date".
It is not ordinarily difficult for any person to observe objectively when one has a respiratory infection or common cold and the like, but in many cases they are not objectively observable because of only the subjective complaint of one so infected without objective showing. But when a large group of 35 or nearly 35 are infected by upper respiratory ailments and the like, it is most improbable that some would not show objective signs. Neither is it so probable that all would be so debilitated as to be unable to report for work, since it is common knowledge that some persons have greater resistance than others. But factually the examiner found that there was no epidemic causation for the total claim to such illness as would deprive them of capability to work.
From all the evidence presented by the doctors in these cases, there is little persuasive evidence for objective findings, and it would seem that all the plaintiffs could have very easily been merely what was related as a patient to a doctor and nothing more. These the examiner questioned, and after questioning, very liberally, allowed the claimants to produce more credible evidence. No one produced a doctor and no one produced any substantial or clearly understandable evidence from a doctor, which would have reasonably sustained him fully. Yet in all of these it appears the examiner carefully scrutinized them and liberally allowed for any question of doubt which may have occurred for the possibility that there might have been a real complaint.
Without detailing each of the claimants, the record shows that the examiner reduced the suspension of 8 claimants after they presented some evidence, even if on a prescription blank, of upper respiratory infection, bronchitis, heart burn, tooth extraction, sacro-iliac sprain and one case of stress. The balance of the suspensions stood because of his explanation in each case of inconsistent insufficient or immaterial or unrelated statements from the doctors. Furthermore, the evidence is that the examiner earnestly sought the most possible evidence he could get to support each of the claimants but in some instances the doctors disregarded his earnestness for more evidence.
Thus it would seem that the examiner performed his functions earnestly and in accordance with law and applied his discretion in accordance with law. Under these circumstances it is not for this court to make determinations of fact, nor to override the judgment of the examiner charged with the function of making decisions. Calhoun v. Bailar, 626 F.2d 145, C.A.9, 1980; Penna v. U. S. Army Corps of Engineers, 490 F. Supp. 442, 443-444 (D.C.N.Y., 1980).
It may very well be that in the case of the claimant, Bost, I judicially might have allowed him sick leave when and during the so-called "sick-out" time for the correction of his nasal passages. But in so doing, it was just as incumbent upon him to comply with the rules of notice to his employer at that time as it would have been if he had been in a normal employment situation. That rule reads as follows:
"Prior approval must be obtained from the supervisor for any absence for the purpose of medical, dental or optical examination or for any prearranged treatment in order for the absence to be charged to sick leave." Handbook 3600.4, parag. 37, b, (2).
It may be of a technical matter to deprive him of sick leave benefits but the primary obligation lies with the agency and not with the court.
With full liberality, the examiner gave allowance for each sick leave claim. This is understandable because it could very well be that one or more of them may not have been malingering and that someone may truly have been suffering from a "cold" condition. It is observable that in each case, the examiner did consider and give weight to subjective evidence where practically no objective evidence appeared, contrary to the holding in Miller v. Bond, 206 U.S. App. D.C. 44, 641 F.2d 997, C.A.D.C., 1981, where it was held that the agency gave weight only to objective evidence and not subjective evidence. Thus, the Miller case has no application here.
So far as any notice was concerned to the plaintiffs, the record discloses that they were first dismissed, afterwards suspended, but notice was given to them. They were given the right to make a personal presentation of any arguments they felt significant; they were permitted to suggest witnesses whom they wished the examiner to interview; and the appeals examiner could solicit additional medical evidence from the plaintiffs' physicians. The plaintiffs also challenged the notice given to them by their employer as being in violation of the requirements set forth in Miller, supra. There the notice to the employees was simply one informing them of their absence stating "Your absence of fourteen scheduled work days during this period was not approved by proper authority." (page 1001). The Miller court also said, "... appellees were deprived of any opportunity to defend against the crux of the suspension charges." (page 1003).
In the instant case, the plaintiffs all received a long form letter with fill-ins in which it was stated the letter was a notice to suspend the plaintiffs (1) for a period of a certain number of days; (2) that the plaintiff failed to report for a scheduled tour of duty on a certain shift on a certain day continuing to a particular date; (3) that the plaintiff had not provided an acceptable explanation for his absence; (4) that he could reply personally in writing to specific persons; (5) that he could submit affidavits in support of his reply; (6) that he would be allowed 15 calendar days from the date of the receipt of the letter to submit a reply; (7) that consideration would be given to extending the period for reply if he requested and stated his reasons for desiring more time; (8) that full consideration would be given to any reply submitted; (9) if the plaintiff did not understand the reason for the proposed suspension, he could telephone a specific number for further explanation; and (10) that after a reply was received or after expiration of the 15-day limit, if he did not reply, a written decision would be issued to him. The notice was only the beginning of the concern which the defendants had for the employee because, when the matter was referred to hearing in the usual course of due process, the examiner provided the plaintiffs the previously outlined opportunities to present evidence. This procedure came in full compliance with the requirements of law and rules governing these cases. Thus, Miller, supra, does not support the plaintiffs in their contention of inadequate notice and insufficient evidence to support their suspensions.
In Calhoun v. Bailar, supra, 626 F.2d at 147, the court reiterated that its function in administrative discharge cases is limited to determining whether the applicable procedures have been complied with, and whether the dismissal was supported by substantial evidence, and was not arbitrary and capricious. Citing, Alsbury v. U.S. Postal Service, 530 F.2d 852, 854, C.A.9, 1976, cert. den. 429 U.S. 828, 97 S. Ct. 85, 50 L. Ed. 2d 91 (1976). The court further stated that such cases are not tried de novo, but are limited to a determination based on the record.
In Smith v. United States Air Force, 566 F.2d 957, C.A.5, 1978, the court stated that "In cases involving the termination of federal employment, the scope of judicial review is limited to a determination of whether the administrative action has complied with the required procedural due process or whether the administrative action is arbitrary or capricious." Thurman v. TVA, 533 F.2d 180, 183, C.A.5, 1976; Dozier v. United States, 473 F.2d 866, 868, C.A.5, 1978.
In the case of Dennis v. Blount, 497 F.2d 1305, 1309, C.A.9, 1974, the court discussed the scope of review in the case of administrative action with regard to federal employees:
"The district court correctly confined itself to considering the administrative record. The standard of review if narrow. 4"