Onnen v. United States

• Decision Date: 15 October 1981
• Docket Number: Civ. No. 80-0-64.
• Citation: 524 F. Supp. 1079
• Parties: Ivan L. ONNEN, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Nebraska

524 F. Supp. 1079

Ivan L. ONNEN, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 80-0-64.

United States District Court, D. Nebraska.

October 15, 1981.

Ivan L. Onnen, pro se.

Thomas D. Thalken, U. S. Atty., Omaha, Neb., Christine B. Nicholson, Dept. of Justice, Washington, D. C., for defendant.

MEMORANDUM OPINION

SCHATZ, District Judge.

I. FACTS AND BACKGROUND

This action involves a request for judicial review of an administrative decision made by the former United States Civil Service Commission (now the Merit System Protection Board). Pursuant to Rule 56 of the Federal Rules of Civil Procedure, this matter comes before the Court for reconsideration of the parties' cross-motions for summary judgment (Filing Nos. 15 and 17).

The Court has carefully reviewed the 327 page administrative record.¹ The facts reflected therein are these. At the time in question, plaintiff was a "preference eligible employee" of the Internal Revenue Service (IRS).² He held the position of Assistant Regional Counsel in the Omaha Branch Office for nearly fifteen years. In that position, plaintiff was responsible for supervising six attorneys as well as clerical support staff.

In January of 1978, plaintiff's immediate supervisor, Mr. Dennis J. Fox (Midwest Regional Counsel), was informed that there were serious management and employee morale problems in plaintiff's office. Mr. Fox, who worked out of Chicago, Illinois, had received this information by way of several telephone calls from Mr. Leonard Hammes, an attorney under plaintiff's supervision. During these calls, Mr. Hammes made various unfavorable allegations concerning plaintiff's management and the effect it was having on professional and clerical staff. Mr. Fox subsequently sought to verify Mr. Hammes' allegations in separate conversations with another attorney and two former secretaries in the Omaha office.

As a result of the above-described conversations with plaintiff's subordinates, Mr. Fox contacted Mr. Leon G. Wigrizer (Deputy Chief Counsel (General)) in Washington, D. C. Mr. Fox and Mr. Wigrizer then summoned plaintiff to the agency's national headquarters in Washington for a meeting to discuss the matter. When the three men met on March 10, 1978, plaintiff was apprised of the criticisms that had been made of him. Plaintiff was instructed to talk with his employees and to remedy the morale problems. Although plaintiff evidently followed this directive, the morale problems in the Omaha office persisted. Consequently, on March 20, 1978, Mr. Fox and Mr. Joseph Hairston (Director, Administrative Services Division) visited Omaha and spent the entire business day interviewing all of the employees under plaintiff's supervision.

On March 22, 1978, a meeting of all IRS Regional Counsel was held in the agency's national office. The purpose of the meeting was to discuss the Chief Counsel's soon to be implemented reorganization plan. After the meeting adjourned, Mr. Fox and Mr. Hairston informed Mr. Wigrizer and Mr. Stuart Seigel (then Chief Counsel) that, based on the employee interviews they had conducted in Omaha, a serious morale problem did in fact exist in the plaintiff's office. Mr. Fox suggested that because of the Chief Counsel's reorganization plan the Chicago office would need an experienced field office attorney, and that plaintiff's recognized technical expertise could be better utilized there than in Omaha. Mr. Seigel and Mr. Wigrizer agreed that this would solve the managerial problem and that it would also be a good opportunity for plaintiff.

On March 24, 1978, plaintiff visited Mr. Fox in Chicago on an unrelated matter. During discussions there, plaintiff learned for the first time that he might be transferred to Chicago. At the plaintiff's request, a meeting was scheduled for April 5, 1978, with the Chief Counsel in Washington. Plaintiff, Mr. Fox, Mr. Wigrizer, and Mr. Seigel attended this meeting. The four men discussed in general the situation in the Omaha office and, in particular, Mr. Fox's desire to have plaintiff transferred from Omaha to Chicago. Mr. Fox explained to plaintiff the need in Chicago for someone of his technical expertise. He also explained what plaintiff's anticipated duties would be in his new position. It does not appear that the reassignment would have entailed a reduction in rank, i. e., while the exact parameters of plaintiff's duties in Chicago had not been drawn at this stage, the new position at least arguably would have involved greater responsibility. However, plaintiff's direct supervision of other employees would have been more limited than in Omaha.

On April 10, 1978, Mr. Seigel advised Mr. Fox that he had actually decided to relieve plaintiff of his managerial position in Omaha and to reassign him elsewhere. Subsequently, plaintiff was so informed by Mr. Fox. Plaintiff was told that he could elect reassignment to Chicago or to another regional headquarters of his choice. Plaintiff responded by saying that he had decided to stay in Omaha because of personal and family considerations. Mr. Fox then informed plaintiff that the decision to transfer him probably would not be changed at any point in the future. Mr. Fox also offered plaintiff the opportunity to apply for the position of Deputy Regional Counsel, Tax Court Litigation, in Chicago. Reasserting his desire to remain in Omaha, plaintiff declined the offer.

By memorandum dated May 2, 1978, Mr. Wigrizer formally advised plaintiff of his reassignment from Assistant Regional Counsel in Omaha to the position of Staff Assistant to the Regional Counsel, Midwest Region, in Chicago, effective June 18, 1978. On June 8, 1978, plaintiff applied for retirement, effective June 17, 1978, by submitting a Request for Personnel Action and an Application for Retirement. Plaintiff stated that his retirement was involuntary, having been brought about by involuntary relocation and reassignment. Plaintiff's request was processed by the IRS as an application for voluntary retirement based on involuntary relocation. A Notification of Personnel Action was prepared indicating that plaintiff's retirement was voluntary and that it would be effective June 17, 1978, per plaintiff's request.

On June 14, 1978, plaintiff took his case to the St. Louis Field Office of the Federal Employee Appeals authority, United States Civil Service Commission (now the Office of Appeals Operations, Merit System Protection Board). There, plaintiff made two basic arguments. First, he contended that the proposed transfer to Chicago amounted to a reduction in rank imposed without observance of applicable procedural requirements. Second, he asserted that he was forced into early retirement. On November 30, 1978, the Appeals Officer determined that plaintiff voluntarily retired from the IRS. Noting that plaintiff voluntarily retired one day before the proposed transfer to Chicago was to be effective, the Appeals Officer held that the question of whether the reassignment to Chicago would have constituted a reduction in rank was not an independently appealable matter. On January 9, 1979, plaintiff asked the Civil Service Commission's Appeals Review Board (now the Office of Appeals Review, Merit System Protection Board) to reopen and reconsider the Appeals Officer's decision. On July 26, 1979, plaintiff's request was denied. Having exhausted all possible administrative remedies, plaintiff filed this civil action on January 30, 1980.

Plaintiff invokes this Court's jurisdiction pursuant to 28 U.S.C. § 1331(a) (1976) (amended 1980)³ and 28 U.S.C. § 1346 (1976) (amended 1978).⁴ He essentially reasserts his administrative allegations, i. e., that the proposed transfer to Chicago constituted a reduction in rank, and, therefore, an "adverse action";⁵ that the IRS failed to follow the applicable procedural requirements in taking said adverse action;⁶ that said action was arbitrary and capricious, and that said action was taken in order to force him into early retirement. In terms of relief, the plaintiff seeks a judicial determination that the proposed transfer was a reduction in rank which should be set aside; that he was involuntarily forced to retire; and that he is entitled to reinstatement to the position of Assistant Regional Counsel in the IRS's Omaha Branch Office, together with all rights, benefits and privileges that would have accrued to him had he continued employment in that position.⁷

II. APPLICABLE STANDARD OF REVIEW

Plaintiff has long since abandoned his original contention that the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706 (1976), provides the Court with an independent basis of subject matter jurisdiction (See Filing No. 5, p. 1). As explained earlier, plaintiff instead relies on 28 U.S.C. § 1331(a) (1976) (amended 1980) and 28 U.S.C. § 1346 (1976) (amended 1978) in order to establish jurisdiction. While plaintiff no longer relies on the APA as a jurisdictional predicate, he still asserts that its judicial review provisions are applicable to this case.

In regard to the proper scope of judicial review, the APA provides:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

. . . . .

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

. . . . .

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence ... on the record ...;

. . . . .

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

5 U.S.C. § 706 (1976). The Eighth Circuit very recently discussed these standards, stating:...