Paroczay v. Hodges, No. 16251.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: EDGERTON, BAZELON, and FAHY, Circuit
• Citation: 297 F.2d 439,111 US App. DC 362
• Docket Number: No. 16251.
• Decision Date: 28 December 1961
• Parties: Ernest PAROCZAY, Appellant v. Luther H. HODGES, individually and as Secretary of Commerce of the United States, et al., Appellees.

111 US App. DC 362, 297 F.2d 439 (1961)

Ernest PAROCZAY, Appellant
v.
Luther H. HODGES, individually and as Secretary of Commerce of the United States, et al., Appellees.

No. 16251.

United States Court of Appeals District of Columbia Circuit.

Argued September 18, 1961.

Decided December 28, 1961.

Mr. Donald H. Dalton, Washington, D. C., for appellant.

Mr. Donald S. Smith, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Charles T. Duncan, Asst. U. S. Atty., were on the brief, for appellees. Mr. Oliver Gasch, U. S. Atty., at the time the record was filed and Mr. Carl W. Belcher, Asst. U. S. Atty., at the time the record was filed, also filed appearances for appellees.

Before EDGERTON, BAZELON, and FAHY, Circuit Judges.

FAHY, Circuit Judge.

Appellant sued appellees¹ in the District Court for a judgment declaring that his resignation from a position in the Weather Bureau, Department of Commerce,

297 F.2d 440

was not legally effective, and for a judgment restoring him to his position. He alleged in his complaint that he was an honorably discharged veteran of World War II, that his resignation was involuntary, the result of duress, misinformation and misrepresentation, and did not result in valid personnel action to terminate his service without compliance with section 14 of the Veterans' Preference Act.² Finding on the basis of affidavits that the resignation was voluntary the District Court granted appellees' motion for summary judgment. This appeal followed

The record does not support the claim of plaintiff that his resignation resulted from misinformation or misrepresentations. As to the issue of voluntariness, however, we conclude that the papers before the court created a genuine issue of material fact as to the voluntariness of the resignation and that this precluded summary judgment.³ Rule 56(c), Fed. R.Civ.P. 28 U.S.C. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967; Evers v. Buxbaum, 102 U.S.App.D.C. 334, 335, 253 F. 2d 356, 357.

An affidavit of Mr. Davis, a personnel officer of the Department of Commerce, was relied upon by defendants. In his affidavit Mr. Davis states he received certain information which led him to arrange for a meeting by the plaintiff with the Security Control Office of the Department on February 16, 1960. Later the same day plaintiff saw Mr. Davis and told him that he had been interviewed by the Security Control Office; he admitted, at that time, the correctness of certain derogatory information about his character which had been discussed with the Security Control Office. Mr. Davis thereupon excused himself briefly, telephoned the Security Control Office, and was informed of the various admissions of misconduct; he then told plaintiff the information was very serious and if true would warrant his removal from the service. Mr. Davis stated to plaintiff that when the detailed information was received he would have to file charges leading to plaintiff's removal. He advised plaintiff of his rights under section 14 of the Veterans' Preference Act, including the right of appeal to the Civil Service Commission, and also that if he wished to do so plaintiff could resign prior to the letter of charges being filed. Plaintiff was informed that if he chose to resign he could specify whatever reasons he wished to give. Plaintiff was also advised of his right of appeal under the Department of Commerce administrative...