Cosby v. United States, No. 88-67.

CourtCourt of Federal Claims
Writing for the CourtPER CURIAM
Citation417 F.2d 1345,189 Ct. Cl. 528
Docket NumberNo. 88-67.
Decision Date14 November 1969
PartiesDenis E. COSBY v. The UNITED STATES.

189 Ct. Cl. 528, 417 F.2d 1345 (1969)

Denis E. COSBY
v.
The UNITED STATES.

No. 88-67.

United States Court of Claims.

November 14, 1969.


Robert Sheriffs Moss, Washington, D. C., attorney of record, for plaintiff. Clayton O. Rost, Palo Alto, Cal., Hart, Moss, & Tavenner, and Thoits, Lehman, & Hanna, Palo Alto, Cal., of counsel.

Steven L. Cohen, Washington, D. C., with whom was Asst. Atty Gen., William D. Ruckelshaus, for defendant. Edward Weintraub, Washington, D. C., of counsel.

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

OPINION

PER CURIAM:

This case was referred to Trial Commissioner Lloyd Fletcher with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57(a) since September 1, 1969, Rule 134(h). The commissioner has done so in an opinion and report filed on March 14, 1969. Exceptions to the commissioner's findings of fact and recommended conclusion of law were filed by plaintiff and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the commissioner's opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby

417 F.2d 1346
adopts the same as the basis for its judgment in this case.* Therefore, plaintiff is not entitled to recover and the petition is dismissed

OPINION OF COMMISSIONER

FLETCHER, Commissioner:

On March 11, 1968, the court entered an order which denied the defendant's motion to dismiss the petition herein on the ground that the plaintiff was barred by the doctrine of laches. Thereupon, the case was remanded to the trial commissioner for trial on the factual issue of whether plaintiff acted under the duress of Federal Aviation Agency (FAA) officials when he submitted a resignation from his position in that agency on November 28, 1961. A trial on that issue has been held.

Based upon a full review of the record developed at the trial, and for the reasons set forth in the following detailed and ultimate findings of fact and conclusions of law, it is concluded that plaintiff has failed to sustain his burden of showing that, in submitting his resignation, he acted under the duress or coercion of his superiors. Therefore, plaintiff's petition should be dismissed.

NICHOLS, Judge (concurring):

I suppose it is unnecessary to clutter up the pages of our reports with concurring views every time the adopted opinion handles the case in a way that differs in some particular from what I would have written. There are pronouncements the world awaits with greater eagerness. Once in a while the practice does serve a purpose, and in this case, my purpose is to avoid any misconstruction of what we are holding by personnel officers and others in the Government.

If an employee's continued presence in an agency is regarded as undesirable, and if he tenders any piece of paper purporting to be a resignation, the temptation is to snatch at it, thus avoiding the complex ritual and uncertain outcome of an adverse action. It is, I believe, the duty of the personnel officer nevertheless to scrutinize the paper with care, and to reject it as a resignation if it states, clearly or ambiguously, that the resignation is coerced. That was not done here and this lawsuit followed, which in my judgment defendant was lucky to win.

A coerced resignation is not a resignation at all. It is an adverse action which is legally invalid for failure to follow the procedures laid down in statutes and regulations. McGucken v. United States, 407 F.2d 1349, 187 Ct.Cl. 284, cert. filed, 396 U.S. 894, 90 S.Ct. 190, 24 L.Ed.2d 170 (June 11, 1969). It necessarily must follow that a purported resignation which stated on its face that it was procured by coercion would be null and void, and no resignation. In that event, the employee not having resigned, factual inquiry whether he was actually coerced would be irrelevant and unnecessary.

Here the employee, in two purported resignations, both times stated he resigned "under protest." In common speech (see Webster's Third Unabridged, 1968), as well as among lawyers, the words "under protest" in connection with any action, mean that the person taking it does so because he must and not because he wants to. It suffices to rebut any implication that the action was voluntary. Thus, if plaintiff had said no more, he would now be in free. This is what gave me pause when I first considered this case and it may trouble others.

However, plaintiff has used words indicating that to him "under protest" meant something entirely different. The interpretation our trier of fact found most persuasive is that in resigning plaintiff meant to "protest" certain actions of FAA officials (Finding 21). Resignations to register disapproval of

417 F.2d 1347
the measures of others are not common in American public life, but of course we are all familiar with them in reports of the proceedings of cabinet officers in European parliamentary democracies. An historic example is the resignation of Sir Anthony Eden to "protest" the decision of Neville Chamberlain to enter into the Munich Pact with Adolf Hitler. However unlikely it may seem that plaintiff resigned for this reason, the explanation gains force by the greater implausibility of alternatives

Plaintiff's able counsel would have us believe that after seventeen years of Federal service, plaintiff supposed he could be fired summarily, without notice or hearing. My own impression is, as a matter of judicial notice, that before learning the location of the snack bar, the typical new Federal employee becomes aware that there is such a thing as tenure, with concomitant trammels on agency freedom to remove him, even for asserted cause. Often this is what attracts him to Federal service. He may not possess the details, but he is sufficiently conscious of the broad outlines to be put on inquiry in case the need for knowing arises. But if this should not be so, it seems to me that an agency which puts itself to the trouble to prepare, publish, and circulate an Employee's Handbook such as the one in evidence here, is entitled to presume its employees are aware of the contents. Counsel took sharp issue before us whether our Commissioner was justified in inferring that plaintiff had read, or should have read, this document (Finding 20). Whether he read it or should have read it, under other circumstances, he was certainly unjustified in resigning because of false conclusions as to agency procedure in adverse action cases, without having consulted it, or else was bound by what he should have read. Plaintiff's counsel would in effect have us decide that Employee's Handbooks are futile and a waste of public funds. Thus my analysis of this case imputes to plaintiff, in preparing his formal resignation, Form 52, a duty to know the pertinent rules of his agency as to adverse actions, when such rules are published for employees and readily available to them. This being so, counsel's interpretation (in his Proposed Finding 21) of the language of the two resignations necessarily fails. Since plaintiff could not properly have believed that he was about to be or could be summarily separated from the service without notice and hearing, he could not be understood to imply that he was by his use of the phrase "under protest," in resigning, if any other meaning was tenable. And one was.

If plaintiff did not state in his resignations, understandably to the agency, that they were forced, it then became necessary to establish whether in fact they were forced. This is what the trial was about, and the result was a finding that there was no coercion in fact, and that the resignations were voluntary.

Therefore, nothing decided in this case, as I read it, should be regarded as condoning any relaxation of the vigilance required of the Civil Service Commission and of personnel officers generally, against the acceptance of coerced resignations, whether actually coerced, or so stated in the course of the employee's filling out the applicable form.

FINDINGS OF FACT**

1. The plaintiff is a citizen of the United States, residing at 1198 P Street, Arcata, California. He is now, and at all times hereinafter mentioned was, an honorably discharged veteran of World War II, within the meaning of the Veterans' Preference Act of 1944, as amended, 58 Stat. 390, 5 U.S.C. § 863 (1958) (now 5 U.S.C. § 7512).

417 F.2d 1348

2. For a number of years prior to November 28, 1961, the plaintiff was a classified Civil Service employee with a five-point veterans' preference. He was employed as a Civil Service employee by the Federal Aviation Agency (FAA) as an Electronics Maintenance Technician (General) LA-2370, GS 856-9 Step 7, tenure group 1, in the competitive service, at a salary of $7,425 per annum. His duties included, inter alia, inspection and maintenance of electronics aircraft monitoring systems in the Eureka-Arcata area of California, and the reporting of systems malfunctions and failures.

3. Since 1944, plaintiff's employment was in the Western Region of FAA. The Region was divided into "Districts" which, in turn, were divided into "Sectors." In 1954, plaintiff was assigned to the Arcata Sector in Northern California, and, at the time of the events in question, he held the position in that Sector of "lead technician." In that capacity he was responsible for the maintenance of various electronic equipment as well as supervision of less experienced technicians in the Sector. During the period involved, the Sector Chief, S. S. Williams, had assigned plaintiff specifically to the maintenance of the Sector's Distance Measuring Equipment (DME), the Very High Frequency Direction Finding Station (VDF) and the Instrument Landing System (ILS).

4. Another major piece of electronic equipment installed at the Arcata Sector was its Visual Omni-Directional Range (VOR) including its CA-1616...

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16 practice notes
  • Cruz v. Department of Navy, No. 89-3359
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • April 30, 1991
    ...288 (emphasis supplied). In the concurring opinion of Judge Nichols in the Court of Claims decision in Denis E. Cosby v. United States, 417 F.2d 1345, 1346-1347, 189 Ct.Cl. 528, 530-532 (1969) it is A coerced resignation is not a resignation at all. It is an adverse action which is legally ......
  • Donaggio v. Arlington County, Va., Civ. A. No. 1:94CV1277.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • March 28, 1995
    ...420 F.2d 1028, 190 Ct.Cl. 506 (1970) (employee voluntarily chose resignation over facing criminal charges); Cosby v. United States, 417 F.2d 1345, 189 Ct.Cl. 528 (1969) (employee voluntarily chose resignation over facing charges of gross insubordination); Autera v. United States, 389 F.2d 8......
  • Molinar v. Western Elec. Co., No. 75--1374
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 22, 1976
    ...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 (1961); Cosby v. United States, 417 F.2d 1345, 189 Ct.Cl. 528 (1969); Autera v. United States, 389 F.2d 815, 182 Ct.Cl. 495 (1968). In these cases, which in accord with New York hold th......
  • Del Turco v. Randolph Twp. Police Dep't, Civ. No. 18-15086 (KM) (MAH)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 2, 2020
    ...420 F.2d 1028, 190 Ct. Cl. 506 (1970) (resignation not involuntary where alternative was criminal charges); Cosby v. United States, 417 F.2d 1345, 189 Ct. Cl. 528 (1969) (same; charges of gross insubordination); Autera v. United States, 389 F.2d 815, 182 Ct. Cl. 495 (1968) (same; charges of......
  • Request a trial to view additional results
16 cases
  • Cruz v. Department of Navy, No. 89-3359
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • April 30, 1991
    ...288 (emphasis supplied). In the concurring opinion of Judge Nichols in the Court of Claims decision in Denis E. Cosby v. United States, 417 F.2d 1345, 1346-1347, 189 Ct.Cl. 528, 530-532 (1969) it is A coerced resignation is not a resignation at all. It is an adverse action which is legally ......
  • Donaggio v. Arlington County, Va., Civ. A. No. 1:94CV1277.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • March 28, 1995
    ...420 F.2d 1028, 190 Ct.Cl. 506 (1970) (employee voluntarily chose resignation over facing criminal charges); Cosby v. United States, 417 F.2d 1345, 189 Ct.Cl. 528 (1969) (employee voluntarily chose resignation over facing charges of gross insubordination); Autera v. United States, 389 F.2d 8......
  • Molinar v. Western Elec. Co., No. 75--1374
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 22, 1976
    ...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 (1961); Cosby v. United States, 417 F.2d 1345, 189 Ct.Cl. 528 (1969); Autera v. United States, 389 F.2d 815, 182 Ct.Cl. 495 (1968). In these cases, which in accord with New York hold th......
  • Del Turco v. Randolph Twp. Police Dep't, Civ. No. 18-15086 (KM) (MAH)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 2, 2020
    ...420 F.2d 1028, 190 Ct. Cl. 506 (1970) (resignation not involuntary where alternative was criminal charges); Cosby v. United States, 417 F.2d 1345, 189 Ct. Cl. 528 (1969) (same; charges of gross insubordination); Autera v. United States, 389 F.2d 815, 182 Ct. Cl. 495 (1968) (same; charges of......
  • Request a trial to view additional results

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