United States v. Robert D. Moore, Branch Chairman, Patco, Rocky Mountain Chapter, United States of America v. Clinton H. Abnet , 427 F.2d 1020 ( 1970 )

HICKEY, Circuit Judge.

This matter presents the question of whether the district court abused its discretion when it granted the defendants’ “Motion for Protective Orders and Stay of Administrative Action” on April 27, 1970. Upon granting the motion, the court issued the order here in controversy which stated in part as follows:

“It is therefore ordered, adjudged and decreed:

“1. That the indefinite suspensions of F.A.A. employees and defendants Rex B. Campbell, Gerald W. Phillips and Robert D. Moore, now in effect, shall be withdrawn by the F.A.A. and the said defendants return to pay status immediately.

“2. The removal of F.A.A. employee Joseph M. Schrodt effective April 21, 1970 shall be rescinded by the F.A.A. immediately.

“3. That F.A.A. shall take no further administrative actions, consisting of proposed suspensions or removals from the rolls or other sanctions against any F.A.A. employees who are defendants in these actions and subject to the Preliminary Injunctions issued by this Court, based upon the alleged work stoppage between March 25, 1970 and April 13, 1970.

“4. The F.A.A. shall not be precluded from taking or initiating any administrative actions in ordinary conduct of its affairs with respect to its employees in these actions apart from the provisions of the Preliminary Injunctions.”

On April 28, the government filed its motion for a stay of the order pending appeal. This court, by order dated April 29th set the matter down for argument on the merits on May 7, 1970. We affirm.

For an adequate understanding of the problems presented by the appeal, a brief statement of the facts is necessary.

On March 30, 1970 the United States on behalf of the Federal Aviation Administration (F.A.A.) filed a complaint in the United States District Court for the District of Colorado naming as defendants seventeen individual air traffic controllers, and the Professional Air Traffic Controllers Organization (PATCO). The complaint charged that on March 25, 1970, a large number of air traffic controllers absented themselves from their work thereby engaging in an illegal strike against the air traffic control system thereby disrupting air traffic throughout the nation resulting in immediate and irreparable damage to the United States of America.

The F.A.A. sought and received a temporary restraining order which prohibited PATCO and the individual defendants from engaging in or continuing or encouraging the strike; directed the individual defendants to return to work; and directed both the individual defendants and PATCO to take such steps as were necessary to have other members of PATCO resume their normal employment duties.

On April 6, 1970 the United States on behalf of the F.A.A. commenced a separate civil action naming 103 additional individual air traffic controllers as defendants. The allegations in this action were identical to the allegations contained in the previous action and the F.A.A. secured a similar temporary restraining order directed at these defendants.

Subsequently the temporary restraining orders were continued for an additional period of time to enable plaintiff to secure service of process upon the defendants named in the action. The two civil actions were then combined and upon effectively completing the service of process and with the consent of the defendants served, the temporary restraining orders previously issued were converted into a preliminary injunction. An answer, together with a counterclaim, was filed by the defendants and the matter is now at issue before the district court.

During the time the civil actions were being filed in the district court, the F.A.A. served notice of its intention to impose sanctions upon many of the defendants for their activities in connection with the alleged strike. The proposed sanctions included permanent removal from employment and suspensions from duty either for a set period or an indefinite period of time. Other sanctions were actually imposed upon the defendants, including the withholding of pay for the period of each defendant’s absence from work.

Following their return to work after the issuance of the preliminary injunction by the court,¹ the F.A.A. commenced administrative action to carry out the proposed removal and suspension of the various defendants. The basis of the proposed agency action was the charge that these individuals had engaged in and participated in an illegal strike against the government of the United States in violation of 5 U.S.C. § 7311 and that they had failed to comply with an order issued by the United States District Court for the District of Columbia in a separate action.

Effective April 20, 1970, several defendants were placed in a status of indefinite suspension, a non-pay status, by virtue of the administrative action. At least one defendant was permanently removed as an employee of the F.A.A.

The defendants then moved the court for Protective Orders and a Stay of Administrative Action. The motion was filed and argued on April 24, 1970. The court granted the motion and as above noted, entered an order directing that the indefinite suspensions and removal of the individual defendants be withdrawn and that the F.A.A. take no further administrative action, consisting of proposed suspensions or removal or other sanctions against any F.A.A. employees who were defendants in the action subject to the preliminary injunctions issued by the court.

Although this order may not be a final order for purposes of 28 U.S.C. § 1291, it clearly falls within § 1292(a)(1) of that title which allows the courts of appeals to review interlocutory orders which grant or deny issuance of certain injunctions. Since this order effectively enjoins the F.A.A. from taking certain action, we conclude we have jurisdiction to hear this appeal.

The issue raised by the government is whether the order of the district court was an abuse of discretion. The government’s argument in this regard is based upon several points.

Initially the government argues that a motion for interlocutory relief is not granted automatically, and that to be granted such relief the defendant should be required to satisfy the court that: (a) it is likely to prevail on the merits; (b) without the relief it will be irreparably injured; (c) that the issuance of the stay would not substantially harm other parties; and (d) that the public interest would be aided by the issuance of such a stay. Virginia Petroleum Jobbers Ass’n v. Federal Power Comm., 104 U.S.App.D.C. 106, 259 F.2d 921, 925 (1958); Belcher v. Birmingham Trust Nat. Bank, 395 F.2d 685 (5th Cir. 1968). Unlike Associated Securities Corp. v. Securities & Exchange Comm., 283 F.2d 773 (10th Cir. 1960), the matter here before us is not the order of an administrative agency but is the order of a trial court, entered in aid of its jurisdiction in enforcing a prior preliminary injunction, the merits of which are not involved in this appeal.

The federal courts have power to issue such writs and orders as are necessary to protect their jurisdiction. Title 28 U.S.C. § 1651 of the United States reads as follows:

“(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

In re Quick Charge, Inc., 69 F.Supp. 961, 969 (D. Okl. 1947), reversed on other grounds, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 886 v. Quick Charge, Inc., 168 F.2d 513 (10th Cir. 1948), the court said:

“It is [a fundamental principle] that a court of equity has the inherent power to issue such orders and injunctions that may be necessary to prevent defeat or impairment of its jurisdiction. If these fundamental principles were not so inherent in the court, such a court would indeed be a feeble arm of government and for all practical purposes would be a nullity.”

The government further argues that the district court abused its discretion by ordering that the F.A.A. abstain from censuring the named employee-defendants because the defendants have not exhausted their administrative remedies. The order herein considered did not come into existence as the result of administrative procedure, but is the act of a trial court protecting its prior determination which was in the nature of a mandate to return to work.

The order appealed from does enjoin the F.A.A. from taking any administrative action against named defendants for their participation in the work slowdown. However, upon the conclusion of the initial lawsuit in the district court, the F.A.A. will be free to impose against the defendants whatever sanctions are authorized by the applicable administrative regulations.

The purpose and effect of the court’s order is limited to a restoration of the “status quo” that existed prior to March 25, 1970, pending determination of the issues contained in the civil actions seeking a permanent injunction. The action taken by the district court has precedent to support it.

In Brotherhood of Locomotive Engineers et al. v. Missouri-Kansas-Texas R. Co., Inc., 363 U.S. 528, 80 S.Ct. 1326, 4 L.Ed.2d 1379 (1960), the district court’s similar action was upheld by the Supreme Court in the following language:

“If the district court is free to exercise the typical powers of a court of equity, it has the power to impose conditions requiring maintenance of the status quo. Conditions of this nature traditionally may be made the price of relief when the injunctive powers of the court are invoked and the conditions are necessary to do justice between the parties. * * * ‘[The court] will avoid * * * injury so far as may be, by attaching conditions to the award * * *.’ Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 674, 88 L.Ed. 834. ‘[I]t is the duty of a court of equity granting injunctive relief to do so upon conditions that will protect all * * * whose interests the injunction may affect.' Inland Steel Co. v. United States, 306 U.S. 153, 157, 59 S.Ct. 415, 417, 83 L.Ed. 557. Since the power to condition relief is essential to ensure that extraordinary equitable remedies will not become the engines of injustice, it would require the clearest legislative direction to justify the truncation of that power.” Supra, 363 U.S. at 531, 532, 80 S.Ct. at 1329.

Because of the nature of the order appealed from, cases concerning issuance of various preliminary injunctions by district court judges are persuasive. Thus, in Flight Engineers’ Inter. Ass’n. etc. v. American Airlines, Inc., 303 F.2d 5 (5th Cir. 1962), it was held that the fact that a hearing may ultimately result in a contrary decision does not deprive the district court of its power to grant interim preliminary relief to enable serious judicial controversy to be settled in an orderly fashion.

“[The court may] preserve the status quo pending a judicious, calm and orderly judicial determination of this judiciable problem. That is the classic office of a preliminary injunction. So much so is it that on review of such an interlocutory order, we do not examine into the merits as such. The probable merits are looked to only insofar as they bear on the question whether the trial court abused its discretion in granting interim relief”. Supra, 303 F.2d at 11.

The district court was well within its authority when it imposed conditions resulting in the restoration and preservation of the status quo pending determination of the issues presented by the complaint which seeks the issuance of a permanent injunction.

The order of the district court was in aid of its jurisdiction over the parties and subject matter of the appellant’s complaint. The court had jurisdiction over the appellees named in the complaint. The district court was vested with the authority to determine whether the appellees were engaged in an illegal strike. Even though the parties apparently agreed to the issuance of a preliminary injunction following service of the temporary restraining order, a determination has not been made that the strike, or work slow-down, was an illegal strike against the government. The effect of the preliminary injunction was to order the defendants back to work pending determination of the complaint brought by the F.A.A. The action of the F.A.A. in indefinitely suspending certain defendants and removing others has the effect of placing the cart before the horse, thereby circumventing the orderly process chosen by them to determine the real issues.

We therefore find that the district court was acting within powers granted to it by Title 28 U.S.C. § 1651 (a), to maintain jurisdiction over the parties involved in the lawsuit, and restore the status quo in aid of its jurisdiction. The court granted the order to effect an orderly and equitable disposition of the lawsuit. Accordingly, we find that the district court did not abuse its discretion granting the stay.

Affirmed.

1 . We note that we have been informed that certain of the defendants may not have returned to work as directed by the restraining orders and preliminary injunctions. However this facet of the case is not now before the Court. Criminal contempt charges have been brought against certain of the defendants and are now pending in the Federal District Court.