Ricucci v. United States

• Decision Date: 15 May 1970
• Docket Number: No. 209-67.,209-67.
• Citation: 425 F.2d 1252,192 Ct. Cl. 1
• Parties: Nicholas C. RICUCCI v. The UNITED STATES.
• Court: U.S. Claims Court

192 Ct. Cl. 1, 425 F.2d 1252 (1970)

Nicholas C. RICUCCI v. The UNITED STATES.

No. 209-67.

United States Court of Claims.

May 15, 1970.

John I. Heise, Jr., Washington, D. C., attorney of record for plaintiff; Leonard J. Meiselman, Mineola, N. Y., of counsel.

Judith A. Yannello, Washington, D. C., with whom was Asst. Atty. Gen. William D. Ruckelshaus, for defendant.

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

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

NICHOLS, Judge.

This case is before us on cross motions for summary judgment. The plaintiff, a non-veteran career employee, sues for back pay lost as a result of his removal by adverse action from the post of Revenue Agent, GS-11, in the Internal Revenue Service. He has exhausted his administrative remedies. In this court he tells us that the removal was legally invalid for a number of asserted errors of procedure and in the receipt of evidence. We hold that he is clearly right on the failure to accord him the opportunity of a proper "oral reply" and that he must prevail on that issue. Thus it becomes needless to rule on the other issues and we do not do so.

The sustained charges involved improper business relations with a taxpayer whose returns plaintiff audited, and false representations on a matter of official interest. His procedural rights contemplated a removal already in effect before he could have a hearing, with an appeal on which he had the burden of going forward with evidence. Since he was thus put at a disadvantage on the hearing date, attention focuses on the procedures that were required for his protection before removal. These included notice of charges and the right to make written and oral reply. He elected both. His superior, the District Director, appointed John P. Gildea to hear the oral reply, review it and the record, and recommend a final decision. Mr. Gildea is a Special Agent, a member of the IRS Intelligence Division. That Division we understand investigates taxpayer frauds and is organizationally separate both from plaintiff's part of the Agency and from the Inspection Service which investigates employee misconduct.

Plaintiff appeared with counsel before Mr. Gildea and made a statement, counsel however protesting that the oral reply opportunity was inadequate, mainly because he was not informed as to the evidence against his client. He was, he said later, up against a "wall of silence." Mr. Gildea interjected only an occasional question. These appeared meant to clarify plaintiff's allegations. He made no disclosure of the case against plaintiff, nor did he make any comment on its strength or weakness. He did not cut plaintiff off or prevent him or his counsel from saying what they wished to say. At the close he said:

Mr. Ricucci\'s reply and all materials submitted here today will be carefully considered and a decision will be rendered by the District Director.

The whole proceeding was taped, and afterwards transcribed. There can be no doubt it was considered, for in subsequent hearings it was referred to as evidence against Mr. Ricucci. There is nothing in the record to show that Mr. Gildea ever made any recommendation in the premises. It will have been noted that he did not state he would do so at the close of the "oral reply," only that an anonymous someone would consider the "oral reply" and the District Director would decide.

Both parties cite as the law on oral replies the Civil Service Commission Regulation, 5 C.F.R. § 752.202(b), which reads as follows:

* * * * * *

* * * The employee is entitled to answer personally, or in writing, or both personally and in writing. The right to answer personally includes the right to answer orally in person by being given a reasonable opportunity to make any representations which the employee believes might sway the final decision on his case, but does not include the right to a trial or formal hearing with examination of witnesses. When the employee requests an opportunity to answer personally, the agency shall make a representative or representatives available to hear his answer. The representative or representatives designated to hear the answer shall be persons who have authority either to make a final decision on the proposed adverse action or to recommend what final decision should be made.

Both cite from Part 752-7 of the Federal Personnel Manual as follows:

2-5. Employee\'s Answer

* * * * * *

b. Oral Reply. (1) Designation of person to hear oral reply. If the employee requests an opportunity to make an oral reply, he is entitled to be heard by an agency representative or representatives who are superior to him and have the authority either to take or to recommend final action. This recommending authority need not be exclusive (i. e., other officials may be requested to recommend the action they consider appropriate under all the circumstances), nor is it mandatory that the recommendation of the superior who receives the oral reply be the final recommendation submitted to the person or persons having authority to make the final decision on the proposed adverse action.

This material tracks the Veterans' Preference Act of 1944, Sec. 14, 5 U.S.C. § 863, now recodified as 5 U.S.C. § 7512 (Supp. IV, 1965-68), and made applicable to non-veterans by Executive Order 10988 of January 17, 1962. The requirement that the "agency representative" be "superior" to the accused employee is found only in the Manual, which may or may not have status as a regulation, but supposing it is binding on defendant, we do not deem it significant per se that Mr. Gildea was not above Mr. Ricucci as a supervisor in the same organizational unit. In common speech, a "superior" is one "of higher degree or rank", Webster's Third International Dictionary (1968), which Mr. Gildea was if his GS rating was above Mr. Ricucci's, as we presume it must have been.

Plaintiff's objections to Mr. Gildea's designation also fail, so far as grounded on our holding in Paterson v. United States, 319 F.2d 882, 884, 162 Ct.Cl. 675, 679 (1963), that the right to answer charges orally is not met by appearance before the investigators who have developed facts to substantiate the charges. As we have said, Mr. Gildea's Intelligence Division has no such duties, and it was the Inspection Service that made the case against plaintiff here.

Nevertheless, the fact remains that failure to award a proper opportunity for oral reply to an employee entitled to this right and requesting it, is a fatal defect in an adverse action. Paterson, supra; Tierney v. United States, 168 Ct.Cl. 77 (1964); Washington v. United States, 147 F.Supp. 284, 137 Ct. Cl. 344 (1957); see O'Brien v. United States, 284 F.2d 692, 694, 151 Ct.Cl. 392, 396 (1960). It remains to inquire whether the oral reply as provided for here was the kind the statute, the regulation, and the cases contemplate. This affords a very pretty problem in the interpretation of official language, but we think our answer is free from doubt. It is as true of the regulation as we said in Washington, 147 F.Supp. at p. 288, 137 Ct.Cl. at p. 350 of the statute, that the allowance of this oral reply implies an intent that the employee may succeed with it at times. It is not to be a futile ritual.

In the first place, there must be a significant difference in use and function between an oral reply and a written reply, since both are contemplated in the law. That difference would not exist in case of an oral reply dictated into a tape recorder, however satisfactory it might be to the employee to hear his own voice. The "oral reply officer" clearly therefore must play a role other than as presiding over a recording and transcribing medium. What the difference is — and the purpose of an oral reply — the oral arguments before this court would suggest. The person arguing orally can tell by our questions and comments how his presentation is going, what is making an impression and what is not, what needs clarification or substantiation, and what had best simply be dropped. To appoint an investigator — even one who normally investigates another kind of case — is to negate that feedback, as Mr. Gildea demonstrated here. Such a man is trained to let his witnesses divulge their secrets, while himself betraying no emotion, and disclosing no information. This is not to say that counsel was right in demanding access to the evidence. That is usurping the function of the later hearing. We do think he was entitled to a general give and take discussion of the case, which the appointment of an investigator as "oral reply officer" seems as if expressly designed to negate.

Next, the regulation and manual require that the designated "oral reply officer" be one with authority to recommend what the final decision should be. This would normally include, we think, those who would so recommend in the regular course of their duties, whether of a line or staff nature. In the former category would be those who directed the section or unit to which the accused employee belonged. They would be in the best position to advise whether his dismissal would further the efficiency of the service. In the latter group would be staff aides such as the personnel officer, who could advise whether the proposed dismissal would be in accord with agency personnel policy and the regulations and precedents of the Civil Service Commission. Presumably advisers would advise according to their functions and expertise in the organization: thus the legal officer might advise on the legal aspects of any problem and the budget officer on the fiscal aspects, not vice versa. We do not deny that there might be occasions when for the employee's protection a District Director would legitimately desire the advice of a qualified person on a removal matter quite outside that person's normal duties, and if so, designating him as "oral reply officer" might be reasonable too. For...