UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
May 28, 1986
JOSEPH HESSE, PETITIONER,
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, RESPONDENT. (MSPB #DA075281F0230)
Before Markey, Chief Judge, Rich and Smith, Circuit Judges.Per Curiam.
Petition for review of a decision of the Merit Systems Protection Board (board) sustaining petitioner's removal because of participation in an illegal strike, 5 U.S.C. § 7311, and absence without leave.We affirm and impose a sanction on counsel.
Reference is made to this court's opinion in Des Vignes v. Department of Transportation, FAA, Appeal No. 85-1111 (Fed. Cir. May 2, 1986). Being substantially identical to the briefs filed by counsel for petitioner in Des Vignes, the briefs filed by that counsel in the present case are equally devoid of any showing on which the decision appealed from could even possibly be reversed, are equally devoid of any basis on which the earlier decisions of this court could be distinguished on law or fact, are equally in violation of this court's rules, and are equally frivolous. Counsel's filing and maintenance of the present petition are equally an abuse of the judicial process.
Petitioner's specific arguments relating to strike participation and appropriateness of the penalty were rejected in, Schapansky v. Department of Transportation, FAA, 735 F.2d 477 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984). Contentions in petitioner's brief not raised before the Presiding Official or to the board will not be considered by this court. Cecil v. Department of Transportation, FAA, 767 F.2d 892, 894 (Fed. Cir. 1985).
Because the filing and the maintenance of this petition are clearly frivolous, and because counsel's conduct on this petition constitutes an abuse of the judicial process, Mr. Solerwitz shall personally pay to the government in respect of this petition, No. 85-1570, a penalty of $200.00. Fed. R. App. P. 38; see Bowen v. Department of Transportation, FAA, 769 F.2d 753, 756 (Fed. Cir. 1985). That payment shall be made within 30 days following the date of this opinion, and Mr. Solerwitz shall notify the Clerk of this court when payment has been made.
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