Albert Piccone v. The United States

PICCONE Albert

The UNITED STATES.

No. 352-62. Court of Claims.

United States

Feb. Galante, Pa., Philadelphia, Peter A. at-

torney record, plaintiff. Smith, Washington, C., Lawrence S. D. Atty. with whom was Asst. Gen. Edwin Weisl, Jr., defendant, L. Alfred O.H. Boudreau, Jr., Washington, C., D. counsel. COWEN, Judge, Before Chief and

LARAMORE, DURFEE, DAVIS, COL- LINS, NICHOLS, SKELTON and Judges. OPINION Judge* DAVIS, Plaintiff, non-veteran, sues to re- pay cover back from the date he was separated position from his civilian with Philadelphia Ship- at the Naval yard; ground his removal was on the he was unable to rating duties promote would therefore efficiency presents of the service. He grounds recovery; several we find important procedural require- Navy’s regulations ment of separation, violated in his and do not reach other contentions. permanent Piccone had status in the rating career civil and held the service joiner typical “Joiner”. of a duties shipyard performed on this * (though same ultimate to Trial Commissioner conclusion are indebted We opinion grounds). somewhat M. different facts Franklin findings Stone incorporate necessary fact. determination We findings, stage litigation gist issues at this insofar his factual are decision, opinion. pertinent contained our our and reach major ship (with part ship), for useful off and efficient service Having had not of most the woodwork aboard been shown.

consisted been in- scaffolds, formed that climbing did not intend to ship, required do- decision, the head of the work, bending stooping, overhead Woodworking Shop recommended in June averaging lifting weights between 40 separated he “due to the pounds. 1954 he suffer- December physical limitations which restrict him injury occupational and was ed an back performance from the of the of his duties off work for months. For the next 4% changed trade and rate.” Piccone then assigned years, technically six while still July 13, mind and on filed an Woodworking Shop, he worked appeal from the denial of his doing Shop, primarily for Electronics application. Shipyard retirement The bending lifting, no but strenuous captioned Commander sent him a letter climbing, ship. Dur- no aboard and work “Proposed Separation-Disability; thirty- shipboard returned to day he was of”, July 21, advance notice dated climbing) notifying (including planned October work and in him of his dis- charge, thirty-day to become final after a recurrence of his back 1960 suffered a period (upon notice comple- and effective injury, staying inactive off work an leave) tion of Septem- all unused sick on duty months for more than two status (later ber extended to October out-patient treatment he underwent while 1961), advising right and also him of his Public Health Service at the Baltimore reply request hearing within ten hospital’s report Hospital. The indicated days. specifically The letter mentioned light duty, to avoid fit but was he was pending disability appeal. retirement bending. climbing, lifting, and excessive job January he to the On his return ten-day reply period passed, but on duty” “light avail- told there no was was August requested 21 Piccone work, assigned shipboard able, was separation post- effective date of his perform complained he could not poned until a decision had been reached of his back. this because appeal on the for dis- Commander, retirement. conflicting physical a number After finding compelling “no reason to retain shipyard dispensary reports from you Shipyard beyond on rolls the date of Philadelphia Health Public Service proposed separation in order to await the shipyard Hospital, medical authori- your disability ap- outcome of retirement physically he concluded that ties peal”, August informed Piccone on joiner— qualified of a for all the duties management imple- the 'final decision bending lifting specifically, restric- menting proposed separation action. doing disqualified from over- him tions According to Piccone’s testi- unrefuted climbing a 20-foot scaf- work and head mony, ship- since his from the him which to find work fold. Efforts yard in October 1961 he held has various not suc- he could positions involving essentially the same voluntarily ap- cessful, an filed Navy job. duties as his on Jan- plication shipyard uary 23, 1961. None lawyer Plaintiff contacted a on October applica- supported personnel medical 26, 1961, day who the next a letter wrote by the Bureau of denied tion and was Regional to the Third Civil Service Office the Civil and Insurance Retirement acknowledging plaintiff’s appeal April Commission Service days’ not within the ten limitation of the appeal (with Board rules, requesting Commission’s it to Appeals within six and Review accept ground discretionary months) total dis- pro- review when The haust administrative remedies aspects of the dismissal. cedural untimely appeal took an appeal the he Civil following day with filed an Navy, Service Commission.1 We have consist Secretary was within ently plaintiff’s working-days' held that a failure limitation fifteen rights pursue his administrative review, procedural and on both such claim,2 will bar and that the Civil grounds. merits necessarily does not Service Commission the Third refusing November On discretion to enter abuse its Regional con- refused to However, Office untimely appeal.3 tain untimely appeal deci- from the absolute; sider requirement is not exhaustion ruling plaintiff, and this sion remove entertain court its discretion the Board was affirmed cures have case where administrative 20, About 1962. on March and Review excusably overlooked.4 1962), (on 12, the March week before have found One situation which we finally re- Review Board justifying fail- "unusual circumstances” jected appeal denial plaintiff’s from the appeal to to Civil Com- the Service ure disability retire- application for of his offered mission an is where 1962, plaintiff August 1, ment. On exclusive, alternative, appeal mutually Navy Secretary’s de- informed through agency procedures —one separation had been that his termination through Commission. the other cir- "proper warranted under held that he cannot be faulted We have cumstances.” choosing grievance pro- says, that he could first cedure.5 Piccone was told The Government suing aspects sepa- procedural in appeal all, from that Piccone is barred through properly or the ex he did ration either court because States, supra; Henry States, ground defendant’s v. United 1. This judgment States, summary supra; McDougall v. United motion for earlier supra. court without Plaintiff claims that Commis- was denied which April 1964, arbitrarily refusing 17, prejudice by con- to order of sion acted appeal turning commis- cir- trial in view of the case to the sider his late disagree; proceedings. the case. for further cumstances of We sioner no reason sufficient to he has shown justify delay appealing. States, g., F.2d 371 E. Pine v. 2. United (1967); 466, Martilla v. 146 178 Ct.Cl. (1950); States, supra; States, 118 Adler United Cuiffo Ct.Cl. 177 v. United 956, F.Supp. F.Supp. States, States, 944, 146 v. 137 131 Adler v. United United denied, (1955); 2C0, Bowling v. Baker 60 v. 134 cert. Ct.Cl. States, United Ct.Cl. (1967); States, 894, S.Ct. 181 352 U.S. 77 Ct.Cl. 968 Ainsworth United (1956); States, (1967); 131, v. 166 Gernand v. United 180 1 L.Ed.2d 87 Ct.Cl. ; States, States, v. 936 Mallow United 161 Ct.Cl. 207 United 174 Ct.Cl. (1963); Cunningham States, States, 34 154 Ct.Cl. v. v. United Hutton United Monday States, (1963); (1961); 146 161 82 Morelli United Ct.Cl. v. United v. States, (1963); (1959), denied, 361 161 44 6 cert. U.S. Ct.Cl. Walsh v. Ct.Cl. (1960); 965, 594, States, 4 L.Ed.2d 945 United 151 Ct.Cl. 507 States, F.Supp. States, Alexander v. v. United Bodson United 158 (1958) ; Henry 1029, 365 v. U.S. 81 6 L.Ed.2d 141 S.Ct. Ct.Cl. 532 (1961). States, F.Supp. 285, 191 139 Ct. 153 United (1957) ; McDougall United Cl. 362 v. F.Supp. 651, States, 90 Ct.Cl. States, supra; 5. Cuiffo v. United Morelli States, v. United Ct.Cl. (1966); supra, States, v. Morelli United supra; 44; Cunningham States, v. Hut- 3. Gernand United v. United supra; States, Monday States, supra; ton v. v. United see Adler v. United States, supra; supra. United Bodson v. United Commission, both, way gave but not the merits “the executive branch of through Navy.6 action the Government opportunity to meet complaint before resort had [was] Cuiffo, In the Morelli and Cun judiciary” (Bodson v. United cases, supra ningham note em States, supra F.Supp. note at ployees told review 537), 141 Ct.Cl. at offered it a chance procedural Commission of basis for matter, apply expertise, settle the against the adverse action them would and to render an administrative decision right any agency terminate their re enlightening “would have been effectively by view, requiring them upon interpret court called the stat pass the their forfeit Commission regulations.” ute Martilla v. any scrutiny of the merits supra note Navy regulations allow their cases. purposes 180. These are the behind procedural ed as rule, they exhaustion have been Commission, spects first and with satisfied here. If the wishes Government days in fifteen after a final decision procedural objections all to be considered there, pursue Navy grievance appeal only by By Commission, appeal on the merits of the action. Commission, provide. forfeit can so (Doyle It need not right Navy his to review have the 158 Ct.Cl. 573 Nevertheless, procedures. we do not the 374 U.S. the be held at feel (1963)), 10 L.Ed.2d 1060 and in this exhausting for the alterna of fault one instance did not. Plaintiff was never appeals. He followed administrative tive go told he had to the first to Com to available two avenues made of one the (on procedure) mission to the then him,7 of offered review a route which Navy (on merits). contrary, the On the procedure In this and substance. both every that, he had reason to if believe 6. Plaintiff’s mander determination Navy action Commission further the Civil Service going provisions, you cedure. oh cedural the decision time procedural grounds calendar Civil the adverse either 3. ^[*] “1. You have the merit the procedural the Civil grievance procedure. Secretary, However, If through Service August after read in taken action. Navy grounds you Commission under action on but not only, days Service appeal ^[*] the elect to receipt from the under against part: Region, grounds to Service after if adverse, you of Director, you rights, later ^[*] Commission grievance the procedural right appeal may the effective of elect to you,' Secretary Commission * * Shipyard than decision grievance Navy through the letter of the to Sfc Third U.S. to the Civil not An spelled appeal procedure the fore- made Secretary notice of have the appeal ten * grounds adverse grounds appeal appeal or to Com- ^[*] pro- pro- final (10) date this out on 7. methods made available in an decided to longer open the Civil Service all as the trial commissioner sought Government. did not fact that he review” That noted.” the instructions and, pealing to the Civil Service Commis- do sion on action taken should be submitted in accordance with after the effective Secretary ceipt of said decision. grievance procedure within possible 5. above, covering any procedural deficiency you one in attempt Civil Service Commission review get If apple. fifteen within addition, procedural grounds, you go you two bites at the fully remedies, to Piccone of the two routes forward does not alter the against you. Although to secure for desire to the (15) workdays fifteen utilized outlined Commission) the should call attention date Navyi this was without grounds merit, (15) workdays one of the two of points out, * * * appeal his in the time through “procedural- him Such the adverse (appeal paragraph his first after attorney was no denied; appeal client must ap- the he re- he proce- physically mentally wished, incapacitated he obtain both or could through position for in review continued service in dural and substantive go following alone, Navy channels need circumstances: ****** all Commission. ** * validity plain- (3) applied for he has dis- come then We retirement, separation in Civil tiff’s October Serv- Board of ice before the Commission has disallowed occurred Commis- Service claim. and Review of Civil (in finally March determined ****** sion had ineligible 1962) disabil- c. Procedure. ity He claimed before retirement. gov- Separation-Disability actions are court, urges Navy, and now before erned, general, by requirements provi- separation violated following 352.5. consid- NCPI sions of the Federal Personnel application: erations are also Personnel Instruc- Civilian forbidding separation-for- (NCPI) tions ** * employee- When an disability-retirement while retirement, applied has former, application pending.8 9The Separation-Disability action will discussing Separation-Disability reads determination on initiated until a part: has made Commission.10 separate This is used to action mentally who If Piccone’s was ac incapacitated for continued service complished through violation position, if he does meet the invalid, controlling regulation it was requirements service Dulles, Service v. 354 U.S. S.Ct. tirement, or if neither the nor 1 1403 is L.Ed.2d employee apply wishes dis- the ability pay.11 the entitled to that back We hold R-5). (see Chapter retirement separation-for-dis commencement of the post- Separation-Disability should be ability disability-retire action while poned possibilities case until the appeal ment Board the was still before disability ex- retirement have been the Serv Review of * * *9 hausted. ice Commission did violate NCPI 352.4- 352.4-7, Navy Regulations, The NCPI Navy 7c(2), supra. In the that words following: contain separation action was “a determination “initiated” before 4-7 SEPARATION-DISABILITY employee’s] application [was] his [the a. Use. by the Civil Commis made ap- Separation-Disability is the action 12 sion.” separate employee propriate to who See, g., 11. e. Hadlock v. United persistently raised issue of 8. Piecone (1962) (NCPI regula 159 52 Ct.Cl. separation pendency during the tions) ; States, 354 Hanifan v. United appeal fact retirement —this (1965) (Civil F.2d 1053 “Proposed appears on the face of the regulations); Wat Service Commission emphasized Separation-Disability”, was F.Supp. 162 son Shipyard letter Com- Piccone’s (War Department (1958) by mander, considered the Com- was regulations). argued mander, in the Secretary, according Navy, and, 12. The trial commissioner felt separation Secretary’s letter, Personnel violated Federal was reviewed Navy’s regu- provision, by Manual him. pass upon lation. do not Man- We Manual, S-l-15, 9. Federal Personnel TS provision. particular, ual’s do not we (Sept. 1959). portions decide those whether C[over], published forth in S[heet]. Set in the are (July 1960); (July 1961). Register C.S. 79 Federal or Code of Federal glance might appear first At it The Government contends that employee contradictory can be 352.4-7c(2), that an supra, NCPI merely di disability-re rectory, physically able for found mandatory, if even it yet physically purposes, unfit require tirement does not postponing separation- gov ineligible for-disability as a beyond continue as to be date of an ini employee. by This well ernment tial decision the Civil Service Com result, provided employee’s disability-re an unfortunate mission on the regulations.13 present application. laws and tirement As for the first Act, point, Navy regulation, The implement Civil Service Retirement (now 2251(g), 2257(a) U.S.C. the Civil §§ Service Commission’s direc (Supp. 8381(6), Ill 8337(a) tive, phrased mandatory U.S.C. §§ It terms. gives 1965-67)), says “Separation-Disability mil not “totally only disabled to an disability-retire be initiated” where grade and efficient service (em useful ment filed has been occupied [by position phasis added). or last introductory class com injury or of disease following reason mand —“The him] considerations are * * * years’ ”, cred he also has application” if five also for somewhat —while Sep ambiguous, appears Government. itable service more as a command aration-for-disability is authorized application” suggestion “for than a “for purpose regulations; consideration”; surrounding Civil Service and the employee, provisions of an obligatory is to removal all allow contain direc pos totally though agency. who disabled tions and standards for the For enough sessing regulation for dis creditable service these reasons we read the retirement, mandatory.15 or men tally the duties unfit Shipyard Commander and rating, whose Secretary interpreted efficiency “promote of the service.”14 352.4-7c(2) separa NCPI mean possibility that There is therefore tion-for-disability postponed must be person too to continue disabled after decision from until an initial enough qualify work, but not disabled of Retirement Commission’s Bureau Nevertheless, retirement. and Insurance. The trial commissioner separation- goes saying without arbitrary concluded that this not an though for-disability, au otherwise even interpretation, hold that was we condition, by employee’s can thorized an wrong. general a should As rule we read not if there of com be effected is lack regulation remedial a —meant regulations. pliance departmental employee liberally in his with benefit — regula- Regulations 2.106(a) 9.101(a), of have status 14. 5 C.F.R. §§ Commission, 1961) (Jan. 1, (now tions binding the Civil Service of 5 752.104 §§ C.F.R. agencies, (Jan. 1, 1968)). 731.201(g), (a), are on it and or 339.101 merely advisory suggestions Com- also See NCPI 352.4-7a mission, conferring rights upon em- States, ambiguity ployees. continuing 342 Nordstrom v. Cf. United This is a 55, Aflague (1965); personnel litigation; F.2d 169 Ct.Cl. 632 in federal the courts States, government employees v. 309 F.2d United Ct. and all be would States, (1962); Cl. 80 Khuri v. United much aided Civil Service Commission weight 154 Ct.Cl. 913, 368 U.S. clarification as to the intended (1961), S.Ct. 7 L.Ed.2d these Person- directives the Federal regula language which the nel Manual. subject tions, context, their their conclusion, required they 13. See Kleinfelter matter (1963); directory mandatory, F.2d were more than legal rights v. United that no from Seebach flowed 352-353 this seemed where court them. disability purpose to assume to one disability be for the other. son, favor, give regulation think, full to him the measure we re- regulation ap- quires protection separation-for-disability was which postponed parently to Here the ac- meant confer. until after a determination 852.4-7c(2) tual words NCPI retirement matter. But after ini- an —“de- rejection application has been applica- termination on tial Commission tion, greater employee.is made the Civil Service Commission” even an suggest require predicament. point or —do not At this Bureau limitation ruling gov- Insurance, to initial or decision one an Retirement and unit, lower level of the Commission. ordi- ernmental has determined that he usage nary disabled; to refers separation-for-dis- “determination” is ability if a regu- Moreover, commenced, proceeding this final decision.16 is it is be- implement governmental unit, Fed- to lation was meant another here cause guidelines (quot- urging employee shipyard, eral Personnel is that the language above) “the required, ed use the He disabled. would be possibilities here, argue retirement to Piccone was Com- totally “Exhaustion” exhausted”. mission that he disabled retirement, was employee’s normally include the order would appeal rights, to obtain employer within to while convince his trying Commission, physically impaired to the Board of that he was not degree sueh a as to make him unfit for Review. This him in an untenable work. leaves all, purpose NCPI Above creating against trap, himself evidence applies equally 352.4-7e(2) shows proceedings,18 if he conscien- in both tiously period prior to initial rights protect wishes succeeding ruling retirement-annuity. job For both ruling appeal. up time to the final may practical purposes he well be clearly regulation save meant to quired the dis- to elect whether to government employee from awkward ability-retirement or to contest decision per separate position prosecuting two action, separation-for-disability for- time, especial actions at the same sonnel feiting or the other. The the one ly take incon forced to where us, specifical- it seems actions be in the different sistent stands employee designed from ly free the contradictory seemingly Govern cause of pursue dilemma, him to and to allow this making By positions.17 ment application to its admin- his retirement Insur of Retirement to the Bureau having stultify istrative end without urging employee his total ance, the himself. sep protect disability; from a himself aration-for-disability say this time action light, no In this it is answer to contend require supposed him to be tell- that the rea- claiming disability It is truth, at all. not disabled supra, NCPI 770.3-1 16. A related 17. See S-eebach United 1960) governing the (O.S. Dee. at where the Government Ct.Cl. initiating grievance pointed re- after a time out the burden on and dilemma by being employee’s Commission view of an forced to contest language disability sort of same uses employee this and ac- retirement —the days working given “15 time. tions at one receipt of the Commission’s from date provi- ruling.” argues To read 18. In decision or this case the Government per- decision sense of an initial that he not sion able to right deprive duties, relying largely to an his form his on his to (including Commission review in the retire- full statements Appeals application duplicate applica- lie- and the Board of ment to and a view) supposed request his tion or to forfeit filed at Commission’s Navy grievance procedure year after the to utilize first. by procedural review the Com- after mission. expediency not regula- as indicates. The 352.4-7c(2), supra, requires separa- tion is premise, founded on another and tion-for-disability postponed be until aft- here as elsewhere law the individ- er a decision has made final ual is having loosed from the bonds to Civil Service Commission on an em- (cid:127) “convict” himself out of his ployee’s own mouth. disability-retirement applica- regulation’s assumption core is that might upon tion. This carry call conflicting tugs there should be no employees disabled payroll on the employee as he exhausts his longer demand period for a time, especially disability retirement. applicants since six months allowed in which seek Furthermore, review the Commis- employee may not sion’s really Board But and Review. “know” where the “truth” lies. Navy regulations prohibit themselves Take It Piccone’s situation. would precipitous many action in situations in quan- be unreasonable him be in a protect employee order to rights, dary and the physical capacity; about Public likely required time to be is not shipyard dispensary unrea- Health Service gave Commission, sonable. Civil Service reports con- doctors different on his too, may way expedite find (He some re- physical capability. dition and cases, view retirement perhaps attempt foolish to be obviating other hardship means of experiment find out his own whether may developed. Government really twenty-foot be Cf. he could still climb States, supra, Seebaeh v. ladders.) note He also not have “known” rating; 351-352. requirements the essential years for six he sat- was able to plaintiff’s sepa It follows doing isfactorily joiner, as all without ration in October 1961 was invalid and activities, specified yet he felt normally that he would entitled to beyond physical some of them were pay back from that It could be ar date. capabilities. addition, may very he gued pay he is entitled to back well not have technical stand- known the period (Oc for the from his removal retirement, sepa- ards for 1961) tober until the time of final Com ration-for-disability, and for non-disabil- disability-retire mission on his action ity overlaps gaps between. —and (March but, 1962), ment employee really (in the All the knows prosecution since the initiation ordinary instance) like is that he would squarely removal action violated working, he do that if cannot continue Navy regulation, pro the whole removal annuity wants ceeding and must be treated was vitiated entitled, and that he which he is does This void. has been our consistent outright discharged without want practice comparable cases of invalid compensation. press do All he proceedings. removal case, able, he is as best wherever employing whenever contends, however, The Government rely- require, Commission Civil Service cannot because recover duty on others whom ready, willing, per able to concerning posed to the “truth” decide during period for form his duties entitlement.19 ultimate pay, he asks back and therefore by the that he has not been harmed lead us considerations These wrongful separation.20 The trial com- Navy regulation, NCPI conclude that (1906); required regula- v. agency L.Ed. Seebach United 798 19. The the 342; States, supra, 182 Ct.Cl. Walker application for his dis- tions ability an to file States, v. United Ct.Cl. 723 179 that if it determines retirement 1036, cert. 772, 389 file he refuses to U.S. he is entitled to it and (1968); 19 L.Ed.2d 825 Graves v. an on his behalf. States, (1966); United 176 Ct.Cl. 68 Wickersham, States, v. 201 20. See States Keith United 284 United 174 Ct.Cl. 469, (1966); 390, States, 399-400, 26 50 U.S. S.Ct. Everett 340 v. United

875 tion missioner concluded that facts as of the Board of and Review plaintiff’s supplied —immediately after, physical condition in the we assume sepa- support substantial evidence defendant’s favor —would have had grounds disability (though actually thirty days ration on wait at least before removing During period commissioner invalidated the removal him. it ours). comparable for a reason would be irrelevant whether he was in specifically rule on commissioner did or not21 fact disabled sufficiency af- of the Government’s April for As the time since that Piccone defense was firmative 1962, the case must returned to the be do his able to work. finding trial commissioner for a as to plaintiff’s physical job. capacity to do unnecessary to con it We find considering issue the this trial com deter administrative sider whether by the ad missioner is not at all bound supportable mination of was disability. determination on plain ministrative period from on the For the facts. States, supra, Everett v. note See 30 1961 until tiff’s in October removal 355-356, 20, 340 F.2d at Ct.Cl. at 17- 169 days of the the final determination after question 18. The court is now before the on March Appeals and Review Board of itself, one for the for as court to decide wholly immaterial it we think part inquiry of .its own de into novo dam plaintiff able whether ages, job. be decided on basis im It is the duties of (NCPI substantial-evidence We regulation standard. plicit not, aspect case, are on this re employees 352.4-7c(2), will supra, viewing an administrative determination final Com kept after on the rolls until to see it whether That is a stand. re mission determination type judicial participation, actually limited they may though even tirement second-stage ap way intervention. Now we That be disabled in fact. ply ourselves, instance, in the first given to proper effect can in which principle the broad contractual which pur its we understand Wickersham, supra, United States v. scope extent pose —and 399-400, note 201 26 U.S. S.Ct. exception from regulation carves offspring, 50 L.Ed. 798 and have to recover general that, rule in order plaintiff physically discharged announced. Was invalidly em pay, an back performance able to render substantial to do prove ployee must gener or, job, of the duties of his more days job. thirty because We add ally, physical such that was his condition pro proper Navy, it followed if had sub would have received Government proceed removal initiated cedure and pro stantially quid quo for against the determina- Piccone after 1961) (now (Jan. 1, (1965); 630.101 Cor 5 § 11 C.F.R. 169 Ct.Cl. F.2d rigan (Jan. 1, 1968)), States, must assume and we v. United States, present purposes (1961); the Govern- v. United Armand proper ment, (1956); if it had v. United followed Getzoff Ct.Cl. course, F.Supp. then what States, have done plaintiff (1953); had a to do—have use 113 Ct. Simon v. United prior his sick leave to the initiation \Cl. separation-for-disability proceedings. See plain- actually postponed shipyard 21. supra, 182 Seebaeh v. United for an additional tiff’s date deprive Ct.Cl. at 351-352. This will not weeks, taken full ad- he had four until salary, any was al- vantage sick unused accumulated advantage lowed to take the sick However, include do not leave. we separated leave before he was in October computation. Ap- present period in the paid period 1961 and placed parently, could sick leave. involuntary sick leave at Piccone during pendency of the time application, 5 30.803 C.F.R. § wages paid him his ? should have If he can that establish that since the latter inquiry to ready, willing we to limit the rea- date he were was and to able personnel-separation perform job. Judgment of the sonableness to that ef- action, Navy separate entered, could em- fect will be with the amount of ployee recovery procedural for with to determined, be in .im- accordance long punity, sup- 47(c). there some opinion, as was with this under Rule action; port for on merits important result would frustrate ob- NICHOLS, Judge (concurring): jectives proper pro- principle that points Judge I concur in all the of sepa- in cedures must followed a even opinion. However, DAVIS’s it reaches ration-for-disability. considering, its destination without ex- cept obliquely, parties a matter issue, At trial on this a argued length. briefed and I would ultimately sustain bur must prefer on, deal with that issue head claim, part proving, den as that hereby and do so. willing ready, per and able was 11, 1962, April at all times since commissioner, report Our form in his sought. pay In order to court, which back stated that the Federal Personnel confine reasonable this burden within Manual and the Naval Civilian Person- re should limits trial commissioner nel Instructions were not introduced in’ quire to “demonstrate during the Government ju- evidence the trial that but positive concrete that it has some dicial notice was taken of them. Refer- evidence, opposed theoreti ring as to a mere provisions former, to certain argument, some sub cal that there on relied them to show that the action defense] stance its premature [affirmative and unau- fishing expedition” mere is not a separated plaintiff thorized insofar discouraging employees from method while seeking pay on meritorious claims back pending still on readiness, proving of the cost appeal. because ability willingness since us, urges Before defendant a standard This is the adverse action. portion cited of the Manual was not re- required for the we Government have party’s ferred to at the trial or in put an income a set-off in issue claim quests says It briefs. equally case,24 tax and we find refund regulation. does not have the status applicable here. If defendant had known commission- Thus, plaintiff recover sal- rely might should it, er would defendant ary (less, course, amount earned produced, says, expert its as to evidence time be- employment) meaning Anyway, other and intendment. urges October regu- tween removal supposed defendant proof— 11, 1962, April further says without lation no more than that provided April since prefer and also Service Commission would we have the standard unsatisfactory work, 22. This seems v. Simon United finding practice, applied a deter- supra; States, de- sufficient disability by the Vet- plaintiff’s mination of feat claim. 100% in- is conclusive of Administration eran’s States, perform, R. in the absence Missouri Pac. R. v. United contrary, 668, 672, strong Graves 338 F.2d evidence to supra; States, v. v. Everett United supra; States, Armand v. United United 24. See Missouri Pac. R. R. efficiency, v. United States, supra, lack of supra; States, Dysart States supra; United States, recov- Seebach v. United ery (1965); 340 F.2d 169 Ct.Cl. 276 claim, tort Keith v. in an automobile States, F.Supp. Zeeman v. accept United supra; refusal (S.D.N.Y.1967), paying job, 256-257 v. United lower Getzoff modified testimony supra; superior’s (C.A.2 grounds, 1968). other 395 F.2d 861

877 ly postponed in cir- management action be internal of an agency. It would cumstance referred to. seem that a document management” not within the “internal possible adjudicate this case It exception published Reg- would be determining the Man- whether without agency thought if ister C.F.R. it (which Federal is not in Code ual a non-publication regulation Regulations) and whether is a thus affords at least a clue that preca- provision not is or is the involved tory. regard does not so it. The CSC In- Personnel The Naval Civilian large body pub- has a that is material may sufficient, deemed well be structions regulation lished as rule or in 5 C.F.R. purposes, does our and defendant for challenge Chapt. 1. material in the Some them, our our reliance counterpart is a to this C.F.R. material the Man- interpretation if of them. Even says but more not. The CSC Subch. con- precatory, it provision is ual 2-1 of the Manual: by expertise of the support as sidered timing holding of the sys- a CSC The Federal Personnel Manual arbitrary to stand. too action was tem is the official medium of the Com- 895, States, F.2d 292 issuing reg- personnel Daub v. Cf. mission for its so, (1961). 434, But even 437 instructions, policy ulations and state- point, ought be- defendant’s to notice we ments and related material on Govern- respon- inherent personnel programs, it invokes cause ment-wide to oth- sibility proper conduct agencies. system of this court er a To make tool, of its trials. more it convenient reference also includes certain of informa- amount Dulles, 354 U.S. Since organiza- tion about the Commission’s (1957), it 1 L.Ed.2d 77 S.Ct. procedures, tion and of material is- Federal commonplace in all has by sued bodies other the Commis- than agencies their are bound courts Congress, sion, such as Execu- acts of cases regulations action adverse Attorney orders, opinions tive being so, against employees. This their General, Comp- and decisions opinion, my necessary, in it becomes General. troller jumping the conclusion avoid emanating from a paper every piece of appears is not Thus that the Manual Agency is a Independent Department or wholly regulation being up made also Greenway regulation. v. United 362, instructions, policy statements, and re- 350, n. 5 at Ct.Cl. v. United lated In Nordstrom materials. L.Ed.2d 385 U.S. F.2d published in If it that an instruction we held C.F.R., that Register Federal seemed, was, “more di- this Manual or a rule normally it was indicate would rectory mandatory requirement than a moreover, problems regulation and rights legal specific from which it is If exist. judicial notice would regulation portions flow.” Whether regula it is a published, whether C.F.R., counterparts in the have their part on depend in seem to tion appear. our commis- The ones does not as agency intent part on and in contents counter- no such relied on sioner have evidence. by extrinsic certained part. Act, 5 further states Procedures The Commission The Administrative §§ as 5 U.S.C. recodified the basic: 2-3 that Subch. §§ U.S.C. September 89-554, approved by P.L. 552 6, 1966, personnel of- “Manual is written Register provided Federal ” * * * group ficers given “substan- publication must be * * * library one and fills about law set in our as authorized tive rules * * * ** * including supplements, shelves, interpretations a half pages superseded guid- public also the volumes agency” adopted to enable to maintained sole- related excepts ance, matter one to just ascertain great what Manual weight said now attached to state- any specific past date. by It is in looseleaf they ments HUD officials as to what being continually and modified with new Housing Thorpe Authority intended. pages. No doubt all this is City Durham, essential 268, U.S. S.Ct. per- thread enable the 518, overburdened (Decided January 21 L.Ed.2d 474 way through sonnel officer to find his 13, 1969). directly This is a matter labyrinth per- Minoan of Government lated to the justice administration of procedures. is, sonnel Commission under our noses. be, or should aware volumes are also The same applies observation to other by lawyers judges much used and as law Government Manuals and Handbooks g. attorney plaintiff’s books. E. in this have or be used in court as argument case stated in oral that he sub- “regulations” sources which the “system.” They scribes are fre- defendant is bound. Khuri v. United quently opinions, in cited court as in two States, 58, 64, 154 Ct.Cl. recently court, I have written for U.S. 7 L.Ed.2d 130 Burton v. United 404 F.2d example language is an in - (Decided 186 Ct.Cl. December such a Manual not held to constitute a 1968); and Heffron v. United regulation. - (Decided 405 F.2d long possibility As as the remains of January 1969). mistake as to the intentions the Com When the Commission wants make issuing or agency, other mission I think sure that an “instruction” will not be precautions ought certain to be observed “regulation” mistaken for a fastened any judge before or trier of fact con Department on some in a v. Dull- cludes that a published document not in decision, so, es it knows how do wit- Register regulation is a and that he Manual, Chapt. 752, ness Subch. 2-3a judicial should take notice of it. If one (1): party this, asks him to do the other usually It notice best to deliver a object, suppose prob does not I the basic and, pos- personally if vanishes, though lem I think case sible obtain written acknowl- requesting party should furnish or be edgment receipt. of its ready document, furnish the entire * * * If the relies on just excerpts, selected whole mails, assuming probably it an should studied with so care that its unnecessary risk. clearly true character is understood. If say, going suppose, No I voluminous, g. court the whole is too as e. regula- is “bound its own Government Burton, supra, Postal at least tion” to effect notice of ac- any chapters whole should relevant hand, employees by tion to by service in citing be furnished. If the idea of such always But similar care is other material comes from source than .mail. every- expect taken, nor can it to be parties, parties one I think should be such of a book. contemplated, where in a behemoth informed what controversy they they in the in- anything arises the Whence have on can submit wherein, doubt, supposed regulation reg is the stant no case is a whether the many too, seed (Clearly, others. In view con ulation. stantly substituting the habit of position pages taken defense counsel new loose-leaf case, urgent important deem it that the Commis- I makes trier of fact clarify sion its Man- intentions about assurance the defendant is law, regulation supply, ual. A is one kind of best able the version kind, like the intent of other him has before is the that was in ef one promulgating authority date.) pertinent fac- is a crucial fect Defendant tor, Supreme says might Court if ascertainable. here “ex have submitted pert deciding pronounce- “meaning HUD whether a in evidence” as precatory exactly has ment is tendment.” I do not what know I visualize defendant means compe that would have been evidence agency interpretation tent. An respect.” regulation is “due accorded States, 175 Ct.Cl.

Baldwin v. 385 U.S. If 17 L.Ed.2d entrenched, contrary I not so judicial urge notice never regulations pub putative of taken they Register, al lished fact, ways proof as of fact for be matter portion of our in a

as indeed done Greenway, supra. 5, 175 Ct. n.

trials. refers Commissioner Gamer

Cl. at being in evidence to a Handbook things noticing As it. reason for

one urg position, occupy median are I taking certain judicial notice If observed.

precautions should of necessary to the decision

had been portion of the know whether case to relied Federal Personnel I awas the commissioner of case return favored would have point. for trial on him Shields, Alexandria, Va., at- Fred W. LAW OF CONCLUSION torney record, plaintiff. lawof aas matter concludes The court Washington, Fay, D.C., Arthur E. on his recover entitled plaintiff is Atty. Asst. Gen. William with whom was ef- to that judgment is entered claim Ruckelshaus, D. for defendant. opinion, with fect, with in accordance Judge COWEN, Chief Before the amount determination DAVIS, LARAMORE, DURFEE, pro- COL- for further covery reserved to be NICHOLS, LINS, 47(c). SKELTON ceedings Rule under Judges.

OPINION CURIAM: PER referred to Trial Com- This case was Spector pursuant Louis missioner R. CONN Harold 47(c) provisions Rule deter- recovery to amount of mination STATES. UNITED is entitled under de- No. 157-63. May 12, of the court entered on cision 376 F.2d 878. The of Claims. Court States including report, filed commissioner 14, 1969. March findings fact, opinion and recom- September of law on mended conclusion exceptions to 1968. Plaintiff filed findings opinion, the commissioner’s and recommended conclusion law. fact urged exceptions took no Defendant

Case Details

Case Name: Albert Piccone v. The United States

Court Name: United States Court of Claims

Date Published: Feb 14, 1969

Citation: 407 F.2d 866

Docket Number: 352-62

Court Abbreviation: Ct. Cl.