Dennis S. Garcia, Petitioner, v. Department of Transportation, Faa, Respondents, 795 F.2d 66 (Fed. Cir. 1986)

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U.S. Court of Appeals for the Federal Circuit - 795 F.2d 66 (Fed. Cir. 1986) April 16, 1986

Richard J. Leighton, Risa D. Sandler and Margaret S. Dailey, of Mayberry and Leighton, Washington, D.C., submitted for petitioner.

Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Sandra P. Spooner, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., submitted for respondents.

Before RICH and DAVIS, Circuit Judges, and COWEN, Senior Circuit Judge.


Petitioner Garcia petitions from his removal for being AWOL during the Air Traffic Controller's Strike. Petitioner had been on scheduled leave until August 10, 1981. On August 6, as a result of the strike situation, his supervisor called him at home and ordered him to report back to work the next morning. Petitioner did not follow that order. We affirm the decision removing petitioner from his job for being AWOL, his leave having been properly cancelled, see Letenyei v. Dept. of Transportation, FAA, 767 F.2d 898 (Fed. Cir. 1985), and even though he was not participating in the strike, because petitioner was aware of the agency's operational emergency yet disobeyed the direct order given him the day before to return to work. See Dewitt v. Department of the Navy, 747 F.2d 1442, 1444-45 (Fed. Cir. 1984). The decision petitioned from is not arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with law. 5 U.S.C. § 7703.