Ricucci v. United States, 209-67.

• Decision Date: 16 October 1970
• Docket Number: No. 209-67.,209-67.
• Parties: Nicholas C. RICUCCI v. The UNITED STATES.
• Court: U.S. Claims Court

432 F.2d 453 (1970)

Nicholas C. RICUCCI v. The UNITED STATES.

No. 209-67.

United States Court of Claims.

October 16, 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 DEFENDANT'S MOTION FOR RECONSIDERATION

PER CURIAM:

Our original decision, 425 F.2d 1252, 192 Ct.Cl. 1 (1970), held that the plaintiff was dismissed illegally from his position as Revenue Agent, GS-11, because he was not accorded the opportunity for "oral reply" the regulation contemplated. The motion for reconsideration says that we went off on grounds not urged by the parties either before the Civil Service Commission or before us.

It is true we did not adopt plaintiff's interpretation of the regulation language, either with respect to the requirement that the person who received the oral reply be a "superior" or to the alleged necessity that all the evidence against the accused employee be divulged to him before he makes his "oral reply." On both points, our position may, we think, fairly be called a "lesser included" position within plaintiff's. Thus to hold with plaintiff that the "superior" must be one organizationally above the accused in the chain of command would have excluded such logical choices for "oral reply officer" as the personnel officer of the District, who of course is a staff and not a line aide of the Director. Nor did we think the regulation contemplated a full discovery before the employee, who presumably had received charges with full specifics, had even decided whether to deny them. We withheld a full endorsement of plaintiff's position for the protection of defendant, and therefore we do not think defendant has a right to complain.

The regulation and Manual are both cryptic as to what is to be accomplished by the "oral reply." Courts have concluded, rather by deduction than from express language, that the procedure is meant to be a meaningful protection for the employee, and that to be meaningful it has to have certain attributes. See our decision, supra, and cases cited therein. One of these attributes concerns the choice of the "oral reply officer" in light of the prescription that he be a "superior" and have authority to recommend a decision in the premises. The authors of these requirements could not have intended the "oral reply" to be downgraded and rendered meaningless, but this would be accomplished if the designated "oral reply officer" was some uninformed and incompetent person, whose recommendation, if made at all, would be filed and forgotten. The deciding officer would comply if he heard the "oral reply" himself or designated a member of the regular circle who would advise him for or against the dismissal of the employee in the regular course of their duties. He might designate some-one else in unusual situations, but the reason for doing so should either be obvious, or should be stated, or the choice should be assented to by the other side. For example, in good administration he might at times desire the "oral reply officer" to be a person of the accused employee's race or faith.

Defendant...