512 F.2d 1104 | Ct. Cl. | 1975
delivered the opinion of the court:
Plaintiff seeks back pay and reinstatement to his position by reason of an alleged procedural error on the part of the Civil Service Commission (CSC) in failing to consider and decide plaintiff’s claim that his resignation from departmental employment was coerced. Defendant argues that the claim of duress is simply an afterthought of plaintiff’s, that he did not even raise the issue before the effective date of his resignation, and that, therefore, the agency and the CSC
We conclude upon a consideration of the briefs, including supplemental briefs requested by the court, and upon oral argument, for reasons hereafter stated, that plaintiff is not presently entitled to back pay or reinstatement. However, pursuant to Pub. L. 92-415, 86 Stat. 652 (1972), we remand to the CSC for a hearing on the merits of plaintiff’s claim of coerced resignation.
Until his separation on September 4, 1971, plaintiff was a career Government employee (economist, GS-1B, step 4) with the Department of Housing and Urban Development. On March 19, 1971, plaintiff’s supervisor informed him in detail, by letter, that plaintiff’s job performance for the past 3 years was unsatisfactory, that as a consequence an in-grade salary merit increase scheduled for June 3, 1971, was being “indefinitely withheld,” and that plaintiff’s work was “not of a caliber to merit continued employment.” Following receipt of this letter, plaintiff met with the Deputy Under Secretary, who, after hearing plaintiff’s response, advised him that he might consider seeking other employment. Subsequent efforts to secure other employment were, however, unsuccessful.
A very real concern for plaintiff during this period was that the denial of the in-grade salary increase would be a blot on his personnel record and reduce opportunities for future employment. As a result of this concern, plaintiff agreed to submit his resignation — dated May 20, 1971, though not effective until September 4 of that year — in return for his receiving the in-grade increase. This arrangement appears to have been at plaintiff’s suggestion.
On September 2, 1971, 2 days before the effective date of his resignation, plaintiff submitted a letter dated September 1 to his supervisor. The letter requested the immediate return of his resignation, and charged for the first time that the resignation had been the product of unspecified “illicit actions” and “bad faith” on defendant’s part. At a meeting of plaintiff and HUD personnel on the same day, his request
Plaintiff timely appealed his separation to the CSC on September 15, 1971, alleging, for the first time explicitly, that his resignation was involuntary within the meaning of chapter 752 of the Federal Personnel Manual.
HUD promptly appealed the foregoing decision to the CSC’s Board of Appeals and Review (BAR). HUD’s letter of appeal asserted that the agency had valid reasons for refusing to permit the withdrawal of plaintiff’s resignation and reiterated that the May 20,1971 resignation was entirely voluntary. ITUD alleged, among the grounds for its action, that plaintiff’s position had been eliminated and that he had
* * * When the agency does not permit an employee to withdraw his resignation before its effective date, the agency must have a valid reason for denying the withdrawal. Among the reasons that would be valid are a showing that it would cause administrative disruption or that the job has been committed to someone else. A desire to avoid taking adverse action would not be a valid reason for denying the withdrawal. Whatever the reason, it must be explained to the employee. * * *.
Plaintiff contested HUD’s assertions.
In its decision of May 5, 1972, the Board of Appeals and Review reversed the Appeals Examining Office, finding that HUD’s stated reasons for refusal to permit withdrawal of the resignation were within required guidelines and valid. Plaintiff’s resignation, the board stated, “properly became effective on September 4, 1971.” Thus, the board did not directly address the allegation in plaintiff’s appeal that his resignation was involuntary due to intimidation and deception. This, plaintiff now says, was a procedural violation of adverse action regulations contained in 5 C.F.R. Part 752 (1972), entitling him to back pay and reinstatement regardless of the merits of his claim of coercion and deception. He says that he was entitled to a hearing by the CSC on his charge. Plaintiff raises his right to a hearing for the first time in this pending motion. He did not complain to the CSC about its failure to accord him any procedural rights nor that it had failed to speak to his charge of involuntary resignation. Plaintiff’s petition to the court was filed on August 23, 1973. It was amended on April 4, 1974.
Against the background of these general rules we have the facts of this case illustrating abundant procedural blunders by both sides, sufficient to mislead both. As to plaintiff, he never argued to his department that his resignation was being coerced. He only requested, over 3 months after he submitted his resignation, and 2 days before it was to become effective, that he be permitted to withdraw it. Until plaintiff appealed to the CSC there was no reason to believe that plaintiff viewed his resignation as involuntary. His memorandum of appeal to the CSC spoke of coercion for the first time and referred to FPM chapter 752. At that point the
When the BAR decision came down, it should have been instantly clear to plaintiff that the BAE had failed to consider what plaintiff now says is his primary claim — coercion. Yet, he made no attempt to bring the oversight to the BAR’s attention. 5 C.F.R. §772.308 (1972) provides that a party may request reconsideration of a decision where it is believed that a procedural or substantive error has been made. Plaintiff did not exhaust his opportunity to gain such reconsideration at the administrative level. If an employee sincerely feels that there has been an oversight of this kind on his appeal, yet he does not say anything about it or use the regulations designed to correct such error, questions arise as to the fairness of his failure to do so. It is unjust to keep silent and many months or even years later in a lawsuit make the point while back pay has been allowed to accumulate. We do not impute improper motives to plaintiff here but, of course, the result of what he did is the same as if he had acted deliberately to capitalize on a technical oversight to maximize his claimed damages. On the other hand, the board’s decision stated that “there is no further right of administrative appeal.” Plaintiff might fairly have assumed from this that he had no opportunity for reconsideration. As we have said, both sides contributed to this confusion and must share the responsibility for failure of the CSC to render a decision on the coercion issue. But, the comedy of errors does not end here.
At some time before plaintiff’s motion for summary judgment was filed on July 3, 1974, counsel for defendant in a
The consequences of a refusal to accept an agency’s offer to remedy a possible, though disputed, procedural error will depend on the timing and nature of the offer. We have many times held that an agency has the inherent power to reconsider and change a decision if it does so within a reasonable period of time. Recently, in fact, we applied this rule specifically to the CSC. Bookman v. United States, 197 Ct. Cl. 108, 453 F. 2d 1263 (1972). In Bookman we noted at 111 (453 F. 2d at 1265) that “reconsideration is often the sole means of correcting errors of procedure or substance.” We stated further:
* * * this court will sustain the reconsidered decision of an agency, as long as the administrative action is conducted within a short and reasonable time period. * * *. [197 Ct. Cl. at 112-13, 453 F. 2d at 1265.]
What is a short and reasonable time period will vary with each case, but absent unusual circumstances, the time period would be measured in weeks, not years. A correction of an error within a reasonable time period will have retroactive effect, or, in other words, will preclude any cause of action based on the original error.
Where reasonable time for reconsideration has expired, there is no longer an opportunity to correct the procedural error retroactively. Vitarelli v. Seaton, supra; Manzi v. United States, 198 Ct. Cl. 489 (1972); Hanifan v. United States, supra. This is true because, generally speaking, separation of an employee in violation of procedural regulations is illegal and void, except where it is harmless error. The employee in effect was never separated, and never stopped drawing his pay. Service v. Dulles, supra; Jones v. United States, supra. In sum, where a prejudicial procedural error has been committed, and a reasonable time for reconsideration has
In the instant case, defendant’s offer of a CSC hearing 2 years after a hearing could have been held was far too late to qualify as reconsideration. Thus, plaintiff was entirely justified in refusing the offer, once it was ascertained that any decision arising out of that hearing was to have retroactive effect. Had he accepted such an offer, plaintiff would have waived any right he might have had under different circumstances to recover back pay as a result of the alleged faulty procedure.
We come down now to the two central issues of the case— did defendant violate its regulations by not affording plaintiff a prompt hearing on his claim of forced resignation made after the effective date of that resignation ? And, can we, as plaintiff insists, find for plaintiff on the merits of his claim that his resignation was forced ?
As to the first point, it is plaintiff’s position that regardless of when he charged coercion, defendant committed a breach of regulations since it did not afford him a hearing on his charge. He says that such a violation entitles him to back pay regardless of the merits of his claim of coercion. We note that plaintiff’s appeal to CSC was within 15 days after the effective date of his resignation and that he therein asserted facts as to coercion which, standing alone, entitled him to adverse action procedures, including a hearing by CSC. As we have said, it is defendant’s failure to accord plaintiff such a hearing that gives rise to the back pay claim. It is clear to the court from the supplemental briefs and exhibits that there was no requirement by regulation that plaintiff must first raise the issue of coerced resignation before his department before going to CSC about it, assuming timely appeal to CSC, as here. It is equally clear from regulations set forth
Plaintiff’s claim suffers from the disability that his separation was not the result of a violation of procedural regulations by his agency. Any such violation came only after he was no longer a Government employee and on a charge of such violation raised at that time. This plainly served to confuse defendant as to what plaintiff’s real claim was, and plaintiff cannot escape responsibility for contributing to that confusion and for his failure even to call to the attention of the BAE his charge, first made in court, that it had committed what he believed to be procedural error. The standard rules heretofore referred to thus do not fairly fit the facts of this case. Additionally, plaintiff gives us no reason whatever for his failure to raise the coercion issue before he went off the payroll. If he believed he was coerced, he had several months to claim it before his resignation became effective. There is no reason to assume that had plaintiff thus exhausted his administrative remedy in the regular way he would not have been accorded all procedural rights. Plaintiff knew what his rights were all along, unlike in McCormack v. United States, supra.
In these circumstances, therefore, where plaintiff bears a heavy responsibility for his failure to receive a timely hearing on a charge he did not raise, and does not explain why he did not raise it while in defendant’s employment, and where no regulations are proven to have been violated prior to his leaving that employment, we think it is harmless error if there is any error, and that the rule reiterated most recently in Hart v. United States, 204 Ct. Cl. 925, cert. denied, 419 U.S. 1049 (1974), should apply:
* * * In Cohen v. United States, 177 Ct. Cl. 599, 369 F. 2d 976 (1966), cert. denied, 387 U.S. 917 (1967), this court held that a plaintiff is required to show “demonstrable prejudice” to support a charge of procedural error. We see no such prejudice in this case. * * *. In fact, any financial prejudice involved could be remedied,*301 if a claim could be made out, by administrative action or under the Back Pay Act, 5 U.S.C. § 5596 (1970) * * *.
We would only add that any other rule would put a premium on form rather than substance and permit a plaintiff to recover for technical rule infractions without demonstrated prejudice flowing therefrom. We decline to recognize such a result as in the interests of proper administration of justice. Fortunately, under our procedures and jurisdiction there is a way to get directly to the merits of a serious charge such as plaintiff raises here. We turn, therefore, to plaintiff’s claim which the CSC did not face — was plaintiff’s resignation induced by coercion of defendant?
Plaintiff’s claim for back pay and reinstatement to his position, from which he claimed he was neither legally removed nor legally resigned, cannot be determined without a hearing on the merits of his allegations that the resignation was improperly induced by defendant. This is an issue of disputed fact that cannot be resolved on these pending motions. Paroczay v. Hodges, 297 F. 2d 439 (D.C. Cir. 1961). Plaintiff claims that he was tricked and deceived, pressured and intimidated. Defendant says that the claim is in bad faith because defendant at the departmental level addressed and repudiated all charges made by plaintiff concerning refusal of his attempt to withdraw the resignation and that these charges were dismissed by the CSC as well. Defendant says that the claim of a coerced resignation is pure afterthought since it was not raised before HUD although there was ample opportunity to do so, that it was not raised even with the CSC until about 4 months after the resignation was submitted to HUD by plaintiff, and that the issue was not raised at all until after plaintiff’s resignation had become effective. Defendant would have us conclude from all this that plaintiff has created a lawsuit by his own failures on the job and that these failures led to plaintiff’s offer to resign in order to get the step pay increase. But, we do not know and can conclude nothing from the motion papers about the quality of plaintiff’s work. Defendant also says that the claim is an afterthought because plaintiff could not find another job although he conducted a long search made possible by his
These contentions, of course, all require proof. As in McCormack v. United States, supra, Goodman v. United States, supra, and Dabney v. United States, supra, it is proper that this issue of whether the resignation was in fact voluntary be decided in the first instance by the Civil Service Commission to which it is remanded for hearing and decision. If plaintiff wishes to pursue the matter further he has the burden of proving that his resignation was not voluntary. Leone v. United States, supra. The criteria for deciding the issue are set forth fully in the CSC regulations, Federal Personnel Manual, and in decided cases. Pitt v. United States, 190 Ct. Cl. 506, 420 F. 2d 1028 (1970); Dabney v. Freemam, supra; Fruhauf Southwest Garment Co. v. United States, 126 Ct. Cl. 51, 62, 111 F. Supp. 945, 951 (1953).
If defendant made a mistake for which plaintiff must be compensated, it will not be because under the facts we have on the motions defendant can fairly be charged with violating regulations. It is not necessary to find such violation now for plaintiff to recover, however, if he can establish the truth of his claim of coercion. If through defendant’s oversight in not addressing one issue in plaintiff’s appeal to CSC, delay has been occasioned as to a hearing which might have been afforded sooner, it is not plaintiff who will lose thereby. If back pay is due because plaintiff sustains his claim, he will have established the prejudice he has suffered and will have to be made whole for it by defendant, back to September 4, 1971, with appropriate offsets required by law. Ainsworth v. United States, 185 Ct. Cl. 110, 399 F. 2d 176 (1968); Back Pay Act of 1966, 5 U.S.C. § 5596 (1970), 80 Stat. 94.
Pursuant to our authority by rule and the remand statute, 28 U.S.C. § 1491 as amended by Pub. L. 92-415, 86 Stat. 652
FPM Supp. 752—1, § S1—2a(1) (1972), states, in pertinent part:
“* * * [A] normally voluntary action — i.e., a resignation, optional retirement, or reduction in rank or pay at the employee’s request — is an adverse action if it is obtained by duress, time pressure, intimidation, or deception. * * *."
Plaintiff’s first amended petition charges that he was separated on the basis of agency action alleged to be arbitrary and capricious and in violation of agency law and regulation. Plaintiff’s motion for summary judgment is limited, however, to the rights of plaintiff by reason of failure of CSC to accord him his procedural rights to a hearing on the merits of the allegation that his resignation was void and illegal because obtained by duress. This opinion is limited to this issue raised by the motion.
Haynes v. United States, 190. Ct. Cl. 9, 418 F. 2d 1380 (1969); McCallin v. United States, 180 Ct. Cl. 220 (1967); Creamer v. United States, 174 Ct. Cl. 408, cert. denied, 385 U.S. 819 (1966); Greenway v. United States, 163 Ct. Cl. 72, 80 (1963), 175 Ct. Cl. 350, cert. denied, 385 U.S. 881 (1966). A prejudicial procedural error Is not rendered harmless, however, because the merits of the dispute appear to be clearly against the employee. Bell v. United States, 366 U.S. 393 (1961); Hanifan v. United States, 173 Ct. Cl. 1053, 354 F. 2d 358 (1965); Garrott v. United States, 169 Ct. Cl. 186, 340 F. 2d 615 (1965).
On tie other hand, we do not believe that the Government is helpless to prevent the continuing cumulation of back pay during litigation where the Government is charged with violation of procedural regulations. If defendant offers, in writing, to correct the procedural shortcomings alleged by an employee, which will have prospective effect only, then a refusal of that offer by a plaintiff would, we think, limit his period of recovery to the date of that offer. Whether such an offer is or is not accepted, defendant may continue its defense in this court of the procedures employed in the initial decision. If a stay of proceedings in this court were required while the corrected procedures went forward, it would be freely given in appropriate circumstances.
