Paul A. Mochinal, et al., Petitioners, v. Department of Transportation, Federal Aviationadministration, Respondent, 835 F.2d 872 (Fed. Cir. 1987)

In this appeal, Paul A. Mochinal and Clyde L. Vick, former air controllers, challenge the decision of the Merit Systems Protection Board (MSPB or Board), which sustained the decision of the Federal Aviation Administration (FAA), Department of Transportation (DOT), to remove petitioners from their positions for their participation in the August, 1981 strike. We affirm the full board's decision of August 9, 1983, MSPB Docket Nos. DC075281F-1036, and DC075281F1149, which agreed with the findings and conclusions of the presiding official, wherein he sustained the agency's removal of the petitioners.

OPINION

The principal issue in this appeal is whether under the decision of the Supreme Court in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), the constitutional and statutory rights of the petitioners were violated, because the employing agency terminated them without first granting their requests for "an opportunity to present their side of the story." The same issue was squarely presented to the Supreme Court in the appellants' petition for certiorari in Darnell (Rose) v. Dep't of Transp., F.A.A., 807 F.2d 943 (Fed. Cir. 1986). Proceedings in this case were suspended pending action by the Supreme Court. On October 5, 1987, the Supreme Court denied the petition. Accordingly, the decision of the Board is affirmed on the principal issue involved in this appeal.

Although the question is probably subsumed in the issues raised in the petition for certiorari filed in the Supreme Court by the appellants in Darnell (Rose), we consider and reject petitioner's contention that the agency's failure to furnish them with personal copies of the material relied on to sustain the charges constitutes harmful procedural error. In Novotny v. Dep't of Transp., F.A.A., 735 F.2d 521, 523 (Fed. Cir. 1984), this court rejected the same contention made by Novotny in that case.

With respect to any other contentions of petitioners, which are not covered by our rulings in paragraphs 1 and 2 above, we hold that petitioners have failed to establish that the agency committed harmful procedural errors; that the MSPB decision is supported by substantial evidence, and that its decision is correct as a matter of law.