Gratehouse v. United States, No. 328-73.

CourtCourt of Federal Claims
Writing for the CourtCOWEN, , and SKELTON and BENNETT
Citation512 F.2d 1104
PartiesDonald R. GRATEHOUSE v. The UNITED STATES.
Decision Date19 March 1975
Docket NumberNo. 328-73.

512 F.2d 1104

Donald R. GRATEHOUSE
v.
The UNITED STATES.

No. 328-73.

United States Court of Claims.

March 19, 1975.


512 F.2d 1105
COPYRIGHT MATERIAL OMITTED
512 F.2d 1106
Ben Paul Noble, Washington, D. C., atty. of record, for plaintiff. Noble, Mann & Schoenfeld, Washington, D. C., of counsel

Francis H. Clabaugh, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.

Before COWEN, Chief Judge, and SKELTON and BENNETT, Judges.

ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

BENNETT, Judge:

Plaintiff seeks back pay and reinstatement to his position by reason of an alleged procedural error on the part of the Civil Service Commission (CSC) in failing to consider and decide plaintiff's claim that his resignation from departmental employment was coerced. Defendant argues that the claim of duress is simply an afterthought of plaintiff's, that he did not even raise the issue before the effective date of his resignation, and that, therefore, the agency and the CSC did not consider it and violated no adverse action procedures, as alleged by plaintiff. Defendant asks that we dismiss the claim or remand it to the CSC for a hearing on the merits of the allegation of resignation induced by coercion.

We conclude upon a consideration of the briefs, including supplemental briefs requested by the court, and upon oral argument, for reasons hereafter stated, that plaintiff is not presently entitled to back pay or reinstatement. However, pursuant to Pub.L. 92-415, 86 Stat. 652 (1972), we remand to the CSC for a hearing on the merits of plaintiff's claim of coerced resignation.

Until his separation on September 4, 1971, plaintiff was a career Government employee (economist, GS-13, step 4) with the Department of Housing and Urban Development. On March 19, 1971, plaintiff's supervisor informed him in detail, by letter, that plaintiff's job performance for the past 3 years was unsatisfactory, that as a consequence an in-grade salary merit increase scheduled for June 3, 1971, was being "indefinitely withheld," and that plaintiff's work was "not of a caliber to merit continued employment." Following receipt of this letter, plaintiff met with the Deputy Under Secretary, who, after hearing plaintiff's response, advised him that he might consider seeking other employment. Subsequent efforts to secure other employment were, however, unsuccessful.

A very real concern for plaintiff during this period was that the denial of the in-grade salary increase would be a blot on his personnel record and reduce opportunities for future employment. As a result of this concern, plaintiff agreed to submit his resignation—dated May 20, 1971, though not effective until September 4 of that year—in return for his

512 F.2d 1107
receiving the in-grade increase. This arrangement appears to have been at plaintiff's suggestion

On September 2, 1971, 2 days before the effective date of his resignation, plaintiff submitted a letter dated September 1 to his supervisor. The letter requested the immediate return of his resignation, and charged for the first time that the resignation had been the product of unspecified "illicit actions" and "bad faith" on defendant's part. At a meeting of plaintiff and HUD personnel on the same day, his request for withdrawal of resignation was denied. However, plaintiff was offered a 60-day temporary appointment in order to give him more time to find another position. Plaintiff rejected the offer and he was separated on September 4, the effective date of his resignation.

Plaintiff timely appealed his separation to the CSC on September 15, 1971, alleging, for the first time explicitly, that his resignation was involuntary within the meaning of chapter 752 of the Federal Personnel Manual.1 Specifically, he alleged deception, intimidation, time pressure, and duress. In reply, the agency argued that the resignation was voluntary and that it had a valid reason for refusing plaintiff's requested withdrawal of the resignation. The chief of the CSC Appeals Examining Office, noting that pursuant to FPM chapter 715, subchapter 2-3, the agency was required to "have a valid reason for denying the withdrawal," ruled on November 4, 1971, that HUD had not stated a valid reason or communicated one to plaintiff, that his separation was therefore an adverse action, subject to 5 C.F.R. Part 752-B (1972), and that the regulations pertaining to such action had not been followed. It was recommended that plaintiff be restored to his position retroactive to September 4. The Appeals Examining Office stated that it was ruling only that there had been a procedural deficiency and that the decision "does not constitute any ruling on the merits or sufficiency of the reasons the Department may have for removing Mr. Gratehouse from the service." We note also that the decision made no reference to plaintiff's claim that his resignation was involuntary from its inception.

HUD promptly appealed the foregoing decision to the CSC's Board of Appeals and Review (BAR). HUD's letter of appeal asserted that the agency had valid reasons for refusing to permit the withdrawal of plaintiff's resignation and reiterated that the May 20, 1971 resignation was entirely voluntary. HUD alleged, among the grounds for its action, that plaintiff's position had been eliminated and that he had been replaced by another person with a GS-9 rating. Returning plaintiff's resignation would thus have created administrative disruption, in HUD's opinion. Such disruption and reassignment was sufficient to support HUD's actions pursuant to CSC regulations and chapter 715, subchapter 2-3, of the Federal Personnel Manual (June 21, 1971):

* * * When the agency does not permit an employee to withdraw his resignation before its effective date, the agency must have a valid reason for denying the withdrawal. Among the reasons that would be valid are a showing that it would cause administrative disruption or that the job has been committed to someone else. A desire to avoid taking adverse action would not be a valid reason for denying the withdrawal. Whatever the reason, it must be explained to the employee. * * *.

Plaintiff contested HUD's assertions.

In its decision of May 5, 1972, the Board of Appeals and Review reversed the Appeals Examining Office, finding that HUD's stated reasons for refusal to permit withdrawal of the resignation

512 F.2d 1108
were within required guidelines and valid. Plaintiff's resignation, the board stated, "properly became effective on September 4, 1971." Thus, the board did not directly address the allegation in plaintiff's appeal that his resignation was involuntary due to intimidation and deception. This, plaintiff now says, was a procedural violation of adverse action regulations contained in 5 C.F.R. part 752 (1972), entitling him to back pay and reinstatement regardless of the merits of his claim of coercion and deception. He says that he was entitled to a hearing by the CSC on his charge. Plaintiff raises his right to a hearing for the first time in his pending motion. He did not complain to the CSC about its failure to accord him any procedural rights nor that it had failed to speak to his charge of involuntary resignation. Plaintiff's petition to the court was filed on August 23, 1973. It was amended on April 4, 1974.2 Plaintiff's motion for summary judgment was filed on July 3, 1974

It is now hornbook law in our jurisdiction that an involuntary resignation constitutes an adverse action by the agency. FPM Supp. 752-1, § S1-2a(1); McCormack v. United States, 204 Ct.Cl. 371 (1974); Cosby v. United States, 417 F.2d 1345, 189 Ct.Cl. 528 (1969). Where there is a nonfrivolous allegation by a Government employee that his resignation was involuntary, he is entitled, in the usual case, upon timely appeal to CSC, to a hearing before that body. 5 C.F.R. Parts 752, 772 (1972); Goodman v. United States, 358 F.2d 532 (D.C.Cir. 1966); Dabney v. Freeman, 358 F.2d 533 (D.C.Cir. 1965); McCormack v. United States, supra; Cunningham v. United States, 423 F.2d 1379, 191 Ct.Cl. 471 (1970). Where it is found that an adverse personnel action has been carried out in substantial violation of procedural regulation, it is a void action and the employee is entitled to recover any pay of which he has been illegally deprived. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Leone v. United States, 204 Ct.Cl. 334 (1974); Jones v. United States, 203 Ct.Cl. 544 (1974); Hanifan v. United States, 354 F.2d 358, 173 Ct.Cl. 1053 (1965). Exceptions are made to the rule where the procedural error is deemed harmless.3

Against the background of these general rules we have the facts of this case illustrating abundant procedural blunders by both sides, sufficient to mislead both. As to plaintiff, he never argued to his department that his resignation was being coerced. He only requested, over 3 months after he submitted his resignation, and 2 days before it was to become effective, that he...

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50 practice notes
  • Garcia v. Department of Homeland Security, No. 04-3442.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • February 10, 2006
    ...law ... that an involuntary resignation constitutes an adverse action by the agency." Gratehouse v. United States, 206 Ct.Cl. 288, 512 F.2d 1104, 1108 Claimants have alleged involuntariness in a number of different ways. See Shoaf, 260 F.3d at 1341. In Cruz v. Department of the Navy, the al......
  • 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
    ...is an adverse action by an agency that may be appealed to the board. This was ably stated by the court in Gratehouse v. United States, 512 F.2d 1104, 1108, 206 Ct.Cl. 288 (1975), when it It is now hornbook law in our jurisdiction that an involuntary resignation constitutes an adverse action......
  • Vanover v. Hantman, Civil Action No. 97-2572(TAF).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 19, 1999
    ...481 U.S. 1001, 107 S.Ct. 1621, 95 L.Ed.2d 195, on remand, 833 F.2d 627 (7th Cir.1986); see also Gratehouse v. U.S., 206 Ct.Cl. 288, 512 F.2d 1104, 1109-10 (1975) (contrasting "harmless error" with case in which "prejudicial procedural error" was committed). The D.C. Circuit has not clearly ......
  • Mazaleski v. Treusdell, No. 75-1817
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 27, 1977
    ...to remain in the Service until he had been able to contest the specific basis for his termination. In Gratehouse v. United States, 512 F.2d 1104, 206 Ct.Cl. 288 (1975), the one case we have found directly addressing the legal consequences of such a refusal in roughlysimilar Page 720 circums......
  • Request a trial to view additional results
49 cases
  • Garcia v. Department of Homeland Security, No. 04-3442.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • February 10, 2006
    ...law ... that an involuntary resignation constitutes an adverse action by the agency." Gratehouse v. United States, 206 Ct.Cl. 288, 512 F.2d 1104, 1108 Claimants have alleged involuntariness in a number of different ways. See Shoaf, 260 F.3d at 1341. In Cruz v. Department of the Navy, the al......
  • 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
    ...is an adverse action by an agency that may be appealed to the board. This was ably stated by the court in Gratehouse v. United States, 512 F.2d 1104, 1108, 206 Ct.Cl. 288 (1975), when it It is now hornbook law in our jurisdiction that an involuntary resignation constitutes an adverse action......
  • Vanover v. Hantman, Civil Action No. 97-2572(TAF).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 19, 1999
    ...481 U.S. 1001, 107 S.Ct. 1621, 95 L.Ed.2d 195, on remand, 833 F.2d 627 (7th Cir.1986); see also Gratehouse v. U.S., 206 Ct.Cl. 288, 512 F.2d 1104, 1109-10 (1975) (contrasting "harmless error" with case in which "prejudicial procedural error" was committed). The D.C. Circuit has not clearly ......
  • Mazaleski v. Treusdell, No. 75-1817
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 27, 1977
    ...to remain in the Service until he had been able to contest the specific basis for his termination. In Gratehouse v. United States, 512 F.2d 1104, 206 Ct.Cl. 288 (1975), the one case we have found directly addressing the legal consequences of such a refusal in roughlysimilar Page 720 circums......
  • Request a trial to view additional results

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