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August 5, 1970

John F. LEYDEN, Individually and on Behalf of all Other Similarly Situated Air Traffic Control Specialists Employed by the Federal Aviation Administration in the Eastern Region, Plaintiffs,
FEDERAL AVIATION ADMINISTRATION and George M. Gary, as Director, Eastern Region, Federal Aviation Administration, Defendants

Judd, District Judge.

The opinion of the court was delivered by: JUDD


JUDD, District Judge.

 In this action for an injunction against alleged improper conduct of disciplinary proceedings by the defendants, a motion was brought on by order to show cause to obtain a preliminary injunction

(a) to prevent defendant George M. Gary from acting as an appeals official in connection with suspensions of the petitioners, and
(b) to prevent the Federal Aviation Administration (F.A.A.) from holding any hearing or inquiry regarding plaintiffs' appeals from disciplinary actions unless seven specific procedural safeguards were afforded, and also for other and further relief.

 The action was brought on behalf of plaintiff and other air traffic control specialists employed by F.A.A., who were alleged to be a class. The complaint recited that an F.A.A. official issued fifty or more letters of suspension, ranging from three to fifteen days each, to air traffic controllers working at the New York Air Route Traffic Control Center and the New York Common IFR Room, all charging abuse of sick leave, and that the results of any suspension will become part of the permanent personnel files of each plaintiff. Plaintiffs filed notices appealing their suspensions. Thereafter, defendant Gary appointed ten grievance examiners to conduct informal interviews and transmit findings of fact and recommendations to him as the appeals official. The total loss of pay to plaintiffs from the suspensions is over $10,000.

 The complaint recites that the grievance examiners will not permit a verbatim transcript of proceedings before them, will not permit confrontation or cross-examination of witnesses, and may receive evidence from the F.A.A. in the absence of the plaintiffs, and that the final findings will not be available to plaintiffs. Alleging that the decision to suspend the plaintiffs was made by defendant Gary, the complaint asserts that he may not also serve as appeals official. It asserts that the Regulations of the F.A.A. for appeals, and the restrictive procedures proposed by the grievance examiners, deprive plaintiffs of their constitutional right to due process of law.

 In addition to asking for an injunction against defendant Gary acting as appeals official, the complaint asks the protection of the following procedural rules:

(a) Recording and transcription of all proceedings;
(b) Production of all witnesses and evidence in support of charges;
(c) Confrontation and cross-examination of such witnesses;
(d) The right of plaintiff to present oral and documentary evidence;
(e) Placing the burden of proof on F.A.A.;
(f) Making the proposed findings and the record available to plaintiffs before it is submitted to the appeals official; and
(g) The right to question the grievance examiner concerning his qualifications and concerning his prior knowledge of the matter.

 In support of the order to show cause, plaintiffs' affidavits recite that plaintiff Leyden was treated for gastritis by his personal physician on the evening of June 19, 1970, and was advised to take medication and rest, that he nevertheless reported at 2:30 a.m. because after he reported his illness his watch supervisor stated that he was extremely short-handed; but that he was thereafter given notice of a three-day suspension for "abuse of sick leave" for reporting four hours late and for failing to substantiate that he was incapacitated by sickness. An affidavit of counsel describes an interview with one of the grievance examiners, who told him that his decision would be based in part on private interviews with witnesses, and that he had already examined a file prepared by investigators of the security and compliance branch of the F.A.A. Many other air traffic controllers in the metropolitan area had also reported sick and not available for duty on the same evening, and had turned in medical certificates attesting to their illness. Counsel also recites that the Administrator of the Federal Aviation Administration publicly stated to a group of controllers that he himself had directed the filing of the specific charge which was made.

 The only answering paper is an affidavit by defendant Gary reciting that unusually large numbers of employees had failed to report for duty on June 19, 1969 at F.A.A. facilities throughout the country, on the ground that they were ill and not able to work, that he had discussed with his staff a plan for appropriate measures to staff facilities where mass absenteeism required, that he discussed the matter with his counterparts at other regional headquarters, that he knew that the Administrator of F.A.A. had ordered a formal investigation concerning the nature, extent and bona fides of the alleged illnesses, and that he had received reports as to the number of interrogations conducted at the New York Center and the Common IFR Room but not of the facts developed by the interrogations. He recited that he considered that his reviewing the investigators' reports or discussing sanctions with facility chiefs or grievance examiners prior to the reports of the grievance examiners would be incompatible with his responsibilities as the appeals official.

 The papers show a sufficient number of persons affected, a sufficiently common interest, and a suitable named plaintiff to justify maintaining the action as a class action. F.R. Civ. P. 23.

 Defendants' time to answer the complaint was extended by stipulation for sixty days after February 6, 1970, but no answer has yet been filed; nor have any ...

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