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BENSON v. DOW

August 20, 1981

David G. BENSON, Gene O. Fozard, Felix Yerace, Eugene F. Ruperto, William G. Imblum, Kenneth N. Patton, Robert T. Nestler, William M. Brant, Joseph E. Stumpf, Ronald L. Weidman, George E. Brugos, Samuel J. Calderaro, James F. Dissen, Russell J. Drumheller, Michael P. Kearney, Joseph A. Mastraieni, Jr., Christy Lucci, Jr., Martin J. Olaharski and Harry W. Bost, Plaintiffs,
v.
James DOW and James J. Hanten, Defendants; Robert T. NOVITSKY, Plaintiff, v. James DOW, Acting Administrator, Federal Aviation Administration; James J. Hanten, Tower Chief, Pittsburgh, Pa., Defendants



The opinion of the court was delivered by: ROSENBERG

These two related actions were filed in 1975 by twenty plaintiffs; one was filed by one plaintiff and the other by nineteen plaintiffs, both five years after causation. The actions deal with the same subject matter; and for all purposes they should be consolidated and will be consolidated here. The plaintiffs allege that their cause of actions occurred between March 24 and April 14, 1970, during which time they variously claimed sick leave, but which was variously denied them and suspensions imposed instead because of a concerted national "sick-out" in which they participated during that period of time.

 These actions, after initiation, proceeded regularly with the usual pretrial skirmishing between counsel until a break-down in counsel representation for the plaintiffs occurred in the latter part of 1979 and throughout 1980. Upon motion of the defendant to dismiss for lack of prosecution, I insisted upon proper notice, either to appearance counsel, or to the individual defendants, personally. No counsel of record for the plaintiffs appeared with due authorization. Upon constant pressure and urging the defendants' counsel to procure addresses so that the plaintiffs could be served with notice, he finally produced the addresses and served them individually. Before that he insisted that there was no record of their whereabouts. After notice for a hearing, plaintiff, David G. Benson, appeared for all the defendants in court. He was informed by the court that he could represent himself only, and to inform the other 19 to appear for themselves or acquire counsel to represent them. Present counsel then entered an appearance and finally this court received briefs from both sides on March 16 and July 17, 1981. I hesitated to dismiss the action without due process and notice. Now the parties are properly before me for legal disposition of the actions.

 In any event the failure of counsel appearance and known addresses for the plaintiffs' individual service of notice, with what seemed to be unconcern and apparent indifference for results, with need of constant importuning by the court of defense counsel for action and with the hesitancy of the court to take drastic action, the court was unduly delayed and disposition of these actions obstructed.

 The two actions are based on appeals. Nineteen plaintiffs appealed the adverse decisions of the Federal Aviation Administration and the other appealed from the determination of the Civil Service Commission. All were based upon the fact that the plaintiffs, Air Traffic Controllers, who were employed by the Federal Aviation Administration (FAA) at The Greater Pittsburgh Airport challenged the suspensions by the FAA of up to 16 days for what was characterized as unauthorized leave of absence by each of the plaintiffs and failure to follow lawful orders from authorized officials.

 The government agency alleged that the plaintiffs were participants in a nationwide "sick-out" which had been called by the Professional Air Traffic Controllers Organization (PATCO), when approximately one-quarter of them reported sick nationwide between March 24, and April 14, 1970.

 On March 25th, thirty-five Pittsburgh controllers failed to report for their scheduled tours of duty at the Pittsburgh Air Traffic Tower, some it would appear without prior communication as required by the rule of employment. *fn1" The Chief of the Tower notified them on March 26, 1970, by letter to return to work, or in the alternative of the possible disciplinary action if they did not report for duty immediately and that they would be considered AWOL due to their absence from duty. On March 27th, they were all informed by a telegram of the issuance of a temporary restraining order by the United States District Court for the District of Columbia.

 Of all the plaintiffs, Robert Novitsky, the plaintiff in Civil Action No. 75-1160 was the only plaintiff to seek an appeal before the Civil Service Commission. That review was limited to the procedural regularity of the administrative action as provided in 5 C.F.R. § 752.304 as authorized by 5 U.S.C. § 7701. *fn2" On October 7th, the Commission sustained the Agency determination, which was afterwards upheld by the Board of Appeals and Review of the Civil Service Commission. Approximately five years later, on March 17, 1975, Novitsky requested repayment, with interest, of the benefits and wages lost during his suspension, but his request was denied, as was his request for a rehearing. He then filed this action claiming the suspension procedures used by the FAA were unconstitutional.

 The other nineteen traffic controllers, the first of whom was the plaintiff, Benson, at Civil Action No. 75-1159, sought intra-agency appeals of the suspension letters which superseded the letters proposing to remove the plaintiffs from employment. An examiner was appointed and he conducted a fact-finding inquiry without a formal hearing. Each claimant, however, was afforded an opportunity to make a personal presentation of any argument he felt necessary. They were all permitted to suggest any witnesses whom they wished the examiner to interview. Also, on some occasions the appeals examiner affirmatively solicited additional medical evidence from the plaintiffs' physicians. This intra-agency appeals procedure was in conformity with § 3 of the Federal Aviation Administration Order 3770.2A, Adverse Actions, Appeals and Grievances. *fn3"

 Two years after the FAA decisions on the suspensions, the plaintiffs requested repayment of wages and benefits which they alleged they had lost. On April 11, 1975 the requests were denied by counsel for the FAA and requests for hearings by the plaintiffs were also denied on July 17th. The plaintiffs then filed these actions in this court. The government agency moved for judgment on the pleadings in each of the actions based on lack of subject matter jurisdiction and the government agency's motions were granted on February 21, 1976. Subsequently, after a petition to amend, leave was granted in both actions. Thereupon, the government filed its answers to the amended complaints. Pretrial statements were filed by both the plaintiffs and the defendants, but the plaintiffs failed, as previously stated, commencing at the end of 1979 and during 1980, to diligently pursue their actions.

 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 ...


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