Waterman, Moore and Hays, Circuit Judges. Waterman, C. J., dissenting.
On March 25, 1970, commencing at 8:00 a.m., large numbers of air traffic controllers, employees of the Federal Aviation Administration (FAA), absented themselves from their work. The air traffic controllers reported that they were ill or gave other reasons for their absences. A number of applications were made to the federal courts for injunctions against the employees. The present appeal arises out of such an application by the United States in the United States District Court for the Eastern District of New York against the Professional Air Traffic Controllers Organization (PATCO), its officials and several hundred aircraft controllers. The district court issued a preliminary injunction which enjoined the air traffic controllers from "in any manner continuing, encouraging, ordering, engaging, aiding or taking any part in any strike, work stoppage or slowdown or any interference with or obstruction to the movement or operation of any aircraft. . . ."
Paragraph III of the injunction provides:
"That the Federal Aviation Administration be and it hereby is directed until further order of this court:
(a) To restore all defendants in the action who have returned to work to the performance of the duties to which they were assigned prior to March 25, 1970, not later than May 18, 1970.
(b) To withhold any further administrative actions in respect of suspensions, removals or any other sanctions based upon the alleged work stoppage between March 25, 1970 and April 14, 1970, against any employees who are defendants in these actions and subject to the temporary injunction issued by this court."
The United States appeals paragraph III of the injunction barring the FAA from taking any disciplinary action against the aircraft controllers who participated in the work stoppage.
We have jurisdiction to hear this appeal under 28 U.S.C. § 1292(a)(1) (1964).
We conclude that the order contained in paragraph III of the injunction must be vacated.
The FAA has the power to discipline its employees without judicial interference. In McTiernan v. Gronouski, 337 F.2d 31, 34 (2d Cir. 1964), this court noted the "limited permissible scope of judicial review in this area" and said:
"The taking of disciplinary action against government employees, including the invocation of the sanction of dismissal, is a matter of executive discretion, and is subject to judicial supervision only to the extent required to insure 'substantial compliance with the pertinent statutory procedures provided ...