Autera v. United States

• Citation: 182 Ct. Cl. 495,389 F.2d 815
• Decision Date: 02 February 1968
• Docket Number: No. 344-65.,344-65.
• Parties: Anthony C. AUTERA v. The UNITED STATES.
• Court: Court of Federal Claims

182 Ct. Cl. 495, 389 F.2d 815 (1968)

Anthony C. AUTERA v. The UNITED STATES.

No. 344-65.

United States Court of Claims.

January 19, 1968.

As Amended February 2, 1968.

Carl L. Shipley, Washington, D. C., attorney of record, for plaintiff, Rufus W. Peckham, Jr., Washington, D. C., and Samuel Resnicoff, New York City, of counsel.

Katherine H. Johnson, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

OPINION

PER CURIAM:

This case was referred to Trial Commissioner C. Murray Bernhardt with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57 (a). The commissioner has done so in an opinion and report filed on September 19, 1967. Plaintiff has filed no exceptions to or brief on this report and the time for so filing pursuant to the Rules of the court has expired. On November 13, 1967, defendant filed a motion that the court adopt the report. Since the court agrees with the commissioner's findings, opinion, and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case without oral argument. Therefore, plaintiff is not entitled to recover and the petition is dismissed.

OPINION OF COMMISSIONER

BERNHARDT, Commissioner:

On January 27, 1967, the court entered an order dismissing without prejudice the parties' cross-motions for summary judgment and remanded the case to the commissioner for trial on the two fact issues of whether or not (1) plaintiff was coerced into resigning from his position, and (2) plaintiff was certified on a most nearly appropriate Civil Service register by the Civil Service Commission. Trial on these issues produces a negative result as to each.

Plaintiff, a five-point veterans' preference eligible, seeks judgment for back-pay from the date of his separation from civilian Government employment, alleging that his rights under both the Lloyd-LaFollette Act, 37 Stat. 555, as amended, 62 Stat. 354 (1948), 5 U.S.C. § 652 (1964 ed.), and the Veterans' Preference Act of 1944, 58 Stat. 387, as amended, 61 Stat. 723 (1947), 5 U.S.C. § 863 (1964 ed.), as well as his rights under Civil Service Regulations, have been violated.

Two grounds are implicit: (1) The failure and refusal of the Securities and Exchange Commission (SEC) to convert his appointment in the classified service from temporary to probationary after his name had been certified by the Civil Service Commission (CSC) constituted breach of an express condition in his offer of appointment in addition to violating 5 C.F.R. § 2.302 (1961 ed.),¹ and (2) the coercive character of his resignation from SEC constituted in effect an unlawful discharge.²

On August 4, 1961, the Securities and Exchange Commission offered plaintiff an appointment as financial analyst, GS-1160-9, at $6,435 annually, "on a temporary basis pending your name being certified by the Civil Service Commission". On August 21, 1961, plaintiff assumed his duties with SEC as a financial analyst in the Division of Corporate Regulation. On August 24, 1961, pursuant to plaintiff's earlier application and unassembled examination, his name was entered on the Civil Service Commission register of eligibles for U-255 Economist (Business), GS-9. Plaintiff proved to be a willing but incompetent financial analyst in the view of his superiors. On June 8, 1962, he was informed that his work had been disappointing because he did not seem to understand the nature of the work assignments given him and required too much supervision. He was told that unless he showed substantial improvement he would not be recommended for promotion, and was advised to consider looking elsewhere for a job. He admitted having difficulty in grasping the nature of his work assignments and hoped to improve.

He did not improve. On or about July 25, 1962, plaintiff was again called to a conference with his superiors. They told him that he had not demonstrated the competence required for his position, and gave him the choice of either having his temporary appointment terminated, or to resign voluntarily, in which latter case he would be given an opportunity to seek other employment on Government time. After reflecting a day or two the plaintiff, under date of July 27, 1962, tendered his resignation effective September 28, 1962, assigning as reason: "To seek a position with better advancement possibilities." The resignation was accepted to be effective September 28, 1962. Plaintiff tried unsuccessfully to obtain other Government employment in the interim. He contends that his resignation was coerced. It is the prevailing view as announced in Rich v. Mitchell, 106 U.S.App.D.C. 343, 273 F.2d 78 (1959), cert. denied, 368 U.S. 854, 82 S.Ct. 91, 7 L.Ed.2d 52, and Popham v. United States, 151 Ct.Cl. 502, 506 (1960), that an agency official does not act illegally or improperly in telling an employee he can choose between separation and resignation, unless the plaintiff alleges and proves that the official knew or believed that the proposed reasons for the proposed separation could not be substantiated. In the case under consideration the plaintiff, if he in fact enjoyed only temporary status, had no discharge rights whatsoever.³ In giving plaintiff an option to resign and opportunity prior to the effective date of the resignation to look around for other employment, the plaintiff's superiors were humanely exceeding requirements rather than threatening action which they had no authority to take. Dabney v. Freeman, supra, n. 2, and Paroczay v. Hodges, 219 F.Supp. 89 (D.D.C.1963), and n. 2, supra, cited by plaintiff, do not aid him. In Dabney v. Freeman the court sustained the conclusion of the Civil Service Commission that plaintiff's resignation was not coerced, according great weight to the Commission's finding to that effect as the trier of the fact, and applying a standard of substantial evidence in reviewing and...