Petition — Gratehouse v. United States

Supreme Court brief1977

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AUG 27 1977

“MIEHAEL-ROBAIC IR, CLER

* —

In the . .

Supreme Court of the United States

October Term, 1977

— Supreme Court, b.

77317 * 8

No.

DONALD R. GRATEHOUSE

Petitioner,

THE UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

DONALD R. GRATEHOUSE, PRO SE

2228 Georgian Woods Place

Wheaton, Maryland 20902

(4)

INDEX

Page

OPINIONS BELOW 3

JURISDICTION 3

QUESTIONS PRESENTED 4

STATEMENT OF THE CASE 4

REASONS FOR GRANTING THE WRIT

1. The Interpretation of the Court

of Claims of 5 U.S.C. §5335 has

decided an important question

of federal law. 7

2. The decision of the Court of

Claims is in conflict with

applicable decisions of this

Court Se

CONCLUSION 15

APPENDIX

Title 5, Section 5335 (in part) 17

Title 5, C.F.R., Section 531.407 18

Letter from Arnold H. Diamond 20

Letter requesting withdrawal of

Resignation 23

Opinion of the Appeals Examining

Office 24

Opinion of Board of Appeals and

Review 27

Opinion of U.S.Court of Claims 31

(44)

Page

Opinion of the Federal Employee

Appeals Authority 43

Opinion of the Appeals Review

Board 65

Order of the U.S. COURT of CLAIMS 72

Order Denying Motion for Rehearing

by U.S. COURT of CLAIMS 77

Order Extending Time to File

Petition for Writ of

Certiorari 78

AUTHORITIES

Cases:

Armstrong v Toler, 11 Wheat(US)258,6 L.ed 468

Conno ll * Union Sewer Pape Co.184 US 540,

5 > . t

Cosby v United States, 417 F.2d 1345,1346 (1969)

Ewert v Blue jacket ,259 US 129,66 L.ed 858,

LS. Ct

Gill v Oliver, 11 How (US)529,13 L.ed 799

Kaiser-Frazier Corp. v Otis, 195 F.2d 838

cg 1880. Virginia,172 US 102,43 L. ed 382,

ct 1

Miller v Thompson ,40 Nev.35, 160 P 775

31155 955785 v Trans-Missouri Freight Ass.,

Texas Employers Ins. Ass. v Tabor (Tex Com App)

wore 883. 22 K e 353. F 577 555 den. 207

3, 28 S. ct 285

(iii)

Statutes: IN THE

Title 5 U.S.C., Section 5335 SUPREME COURT OF THE UNITED STATES

Title 5 U.S. C., Section 5596 (1970)

Title 28 U.S.C., Section 1255(1) OCTOBER TERM, 1977

Title 28 U.S.C., Section 1491 (1970)

Title 28 U.S.C., Section 2101(c)

Title 5 C.F.R., Section 351.407

Title 5 C.F.R., Section 752.201

Miscellaneous:

17 Am Jur. 2d, Section 157, 159

17 Am Jur. , Contracts, Section 165

DONALD R. GRATEHOUSE

Petitioner

THE UNITED STATES OF AMERICA

Respondent

= ~

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

TO: The Honorable, the Chief Justice of the

United States and Associate Justices of the

Supreme Court of the United States:

The Petitioner respectfully prays that a Writ

of Certiorari be issued to review the judgment of

the United States Court of Claims entered on the

29th day of April, 1977, denying the Petitioner's

Motion for Rehearing or for Rehearing en banc.

OPINION BELOW

The opinion of the United States Court of

Claims, dated February 4, 1977, ( captioned

“Order" ), not reported here, is printed in the

Appendix to the Petition along with the Order

denying the Petitioner's Motion for Rehearing or

For Rehearing en banc, dated the 29th of April,

1977. Opinions from an earlier Court of Claims

decision, dated March 9, 1975, and four opinions

from the Civil Service Commission, dated November

4, 1971, May 5, 1972, October 6, 1975 and March

18, 1976, are likewise printed in the Appendix.

JURISDICTION

The jurisdiction of this Court is based on

Title 28 U.S.C. §1255(1), Title 28 U.S.C. §2101(c)

and 5 U.S.C. §5335.

The jurisdiction of the Court of Claims in

invoked under 28 U.S.C. §1491 (1970) and 5 U.S.C.

53596 ( 1970 ).

QUESTIONS PRESENTED

Whether or not a federal agency, acting

pursuant to 5 U.S.C. §5335 can grant to a member

of the competitive service of the United States,

a within-grade increase when the agency has prior

thereto determined that the employee was not

performing at the required level of competence,

as consideration for the employee's resignation.

Whether a federal agency can “misuse” its

authority, pursuant to 5 U.S.C. §5335 by

conferring upon persons determined by the agency

to be below the minimum required level of

competence, in order to obtain the resignation

of an employee.

STATEMENT OF THE CASE

DONALD R. GRATEHOUSE was, at the time of his

resignation which forms the basis of his claim

here, on the date of his resignation (September 4,

1971) a GS-13, Step 4, Economist with the

Department of Housing Development ( HUD ). He had

at the time of his resignation approximately 17

years of federal service.

On March 19, 1971, the Plaintiff received a

notification from his supervisor (Appendix p.20 ),

indicating that his performance was not at a

minimum level of competence, and accordingly, a

within-grade ( WGI ) pursuant to 5 U.S.C. §5335

and 5 C. F. R. §531.407 (Appendix pp. 17 & 18), was

being “indefinitely withheld”. The Petitioner, con-

cerned with the effect that such a determination

would have on his otherwise exemplary record,

entered into an agreement with the agency that in

exchange for the agency's granting the previously

withheld WGI, the Petitioner would resign, effective

September 4, 1971. After the employee had attempted

unsuccessfully to withdraw his resignation, he

filed, in a timely manner, on September 15, 1971,

an administrative appeal with the Civil Service

Commission seeking reinstatement and back pay

pursuant to the provisions of 5 C. F. R. §752.201.

Thereafter, the Appeals Examining Office of the

Civil Service Commission ( AEO - now referred to as

the Federal Employee Appeals Authority - FEAA )

issued its decision in favor of the Petitioner. In

a timely manner, the decision was appealed by HUD

to the Board of Appeals and Review ( BAR - now

referred to as the Appeals Review Board - ARB ),

which reversed the decision of the FEAA and, thereby,

upheld the Petitioner's separation.

On August 31, 1973, Petitioner filed his

Complaint in the United States Court of Claims

which, after oral argument, on March 19, 1975,

entered an Order remanding the matter to the

Civil Service Commission ( SCS ) for an eviden-

tiary hearing and a decision.

At that hearing, the agency witnesses who

testified admitted that the WGI which was granted

to Petitioner, was granted despite the fact Petitioner

did not ... “clearly meet the statutory standard

for such award .... , contrary to the provisions

of 5 C.F.R. §531.407(c) (i).

Additionally, the same witnesses testified

before the CSC Hearing Examiner that they had

concluded, prior to the granting of the WGI, that

Petitioner did not meet the... acceptable level

of competence....", within the meaning of 5 U.S.C.

$5335 (1970). As a result of the hearing, the

Examiner found in the Petitioner's favor.

Thereafter, HUD again appealed the lower CSC

decision to the ARB, which again reversed in favor

of the agency. The Court of Claims, which never

relinquished jurisdiction of the matter following

the remand order, considered cross-motions for

Summary Judgments by both parties. Following oral

argument, on February 4, 1977, the Court of Claims,

by an Order, granted Respondent's Motion and

denied Petitioner's Motion. After a Motion filed

by Petitioner for a Rehearing, or, in the

alternative, for a Rehearing, en banc, the Court

on April 29, 1977, entered its final order denying

the Petitioner's Motion.

REASONS FOR GRANTING THE WRIT

1. The Interpretation of the Court of Claims of

5 U.S.C. §5335 has decided an important

question of federal law.

In March, 1971, the Petitioner who was then

employed by HUD received a letter from his super-

visor critical of his performance, and, indicating

that ..."your within-grade salary merit increase

scheduled for June, 1971, is being indefinitely

withheld....". This notification was inadequate

under the regulations of the agency to accomplish

the threatened action. |

After receiving this “determination”, the

Petitioner and the agency entered into an agree-

ment that in exchange for the previous withheld

“merit” increase, the employee would resign

effective September 4, 1971. The agency was

motivated by a desire to rid itself of an unwanted

employee. The employee was motivated by a desire

1 Compare 5 C.F.R.§531.407(b)(2) with §531.407(c) (3).

The first reference section requires 60 days advance

written notice of lack of “competent"performance.

That notice is required to be followed by the notice

requirement of the statute, which is the d.-termin-

ation of minimal level of competence of 5 USC §5335.

to remove a threatened stain on his otherwise

exemplary record in the federal competitive

service.

Agencies of the federal government are enjoined

by 5 U.S.C. §5335 to grant merit increases to

employees who do not meet a satisfactory level of

work per fornance. 2 The implementing regulations

clearly caution the agency to make the required

statutory determination upon the basis of work

performance, and for no other reason. The

regulations, in this respect, read as follows:

5 C. F. R. §531.407(c) (i), in part, provides:

the head of an agency or his designee shall

make effective use of this authority to

stimulate optimum performance among his

employees, and:

(i) Shall not award within-grade increases to

employees who do not clearly meet the statutory

standard for such award ... (emphasis added)

Here, as this record reflects, the agency

abused its authority granted by 55335, by using

such authority to obtain the removal of a federal

employee whose work it had already concluded did

2 Section 5335, in part:

(a) of this section that the work of an employee is

not of an acceptable level of competence, the

employee is entitled to prompt written notice of

that determination and an opportunity for recon-

sideration within his agency under uniform pro-

cedures prescribed by the Commission.

not meet the minimal standard of performance

required by the agency. The dangers of such a

procedure have already been recogntzed by. the

Court of Claims in Cosby v United States, 417 F.2d

1345, 1346 (1969), by Judge Nichols:

ek ee 2 i a. e

If an employee's continued presence in an

agency is regarded as undesirable, and if

he tenders any piece of paper purporting

to be a resignation, the temptation is to

snatch at it, thus avoiding the complex

ritual and uncertain outcome of an adverse

action. It is, I believe, the duty of the

personnel officer nevertheless to

scrutinize the paper with care, and to

reject it as a resignation if it states,

clearly or ambiguously, that the

resignation is coerced. * „ *

The same is true if the statement is

made in a separate communication submitted

by the employee simultaneously or at any

time before the purported resignation

takes effect. * * *

The Court of Claims countenanced this unlawful

use by the agency of the agency's congressional ly

mandated authority based upon its assumption that

the act of the Petitioner was voluntary“. In so

doing, the Court of Claims ignored a well known

principle of law, recognized by this Court ...

"It is clear that the courts will not

recognize or enforce, or hesitate to con-

demn contracts resting upon an illegal

consideration. Illegal consideration

consists of any act or forebearance, or a

promise to act or forbear, which is contrary

to law or public policy. It is insufficient

consideration to support an agreement,

and an agreement founded upon it is illegal".

17 Am Jur 2d, $157,(See Footnote 17).3

And,

" An agreement which cannot be performed

without a violation of the law is illegal

and voidl6, whether or not the parties

knew the law.17" 17 Am Jur 2d, 6139.

Petitioner submits that since it was unlawful

for the supervisor to grant that which the

Petitioner wanted, the fact that the bargain was

struck does not make it any less illegal. To hold

otherwise provides the agency with the benefit of

a bargain it had no authority to make, and pro-

vides the Petitioner, for consideration for his

resignation, that which the agency was prohibited

from giving. Inasmuch as both parties participated

in the contract in exchanging a resignation for a

WGI, the contract is void, and as the cases below

indicate, neither party is in a position to en-

force it. For the effect of the decision of the

Court of Claims is to permit a federal agency to

3 McCullough v Virginia, 172 US 102, 43 L. ed. 382,

19 S.Ct 134; Gill v Oliver,11 How(US) 529,13L.ed

799; Armstrong v Toler,11 Wheat (US)258,6 L. ed 468.

4 Miller v Thompson,40 Nev.35,160 P 775; Texas

Employers'Ins.Ass. v Tabor(Tex Com App)283SW 779.

— —

purchase “by an unlawful use of its statutorily

mandated authority" to grant merit increases only

to those persons whose level of performance

required it, a resignation by an employee.

The threat of abuse by agencies in the light

of the Court of Claims decision here, is not only

apparent, but real. For as we shall point out,

once an agency is permitted to purchase“ a

resignation with a false certification of com-

petence, the agency may well decide to purchase“

other things from its employees with the same

unlawful consideration.

It is for this reason we submit that the Court

of Claims has decided an important question of

federal law which has not been, but should be,

settled by this Court. See Rule 19 of the Supreme

Court.

2. The decision of the Court of Claims is in

conflict with applicable decisions of this

Court.

Ordinarily, of course, disputes concerning the

granting or withholding of merit increases are

generally dealt with by the agency and CSC

administrative procedures. Accordingly, there is

almost no decided case law with regard to the

manner in which an agency is permitted to withhold

or grant merit increases. Here, however, the

Petitioner contends that the agency had no auth-

ority to make the bargain that it did. The Court

of Claims, in considering the Petitioner's argu-

ment in this respect, simply disposed of it by

pointing out the Petitioner's concurrence in the

bargain. The issue, we submit, is not so easily

disposed of, for the issue is Not whether the

Petitioner did,or did not,voluntarily bargain

for something he wanted in return for his

resignation; rather, the issue is whether the

agency had the power to make the bargain.

We have already pointed out, the agency, prior

to the “bargain”, had already made the deter-

mination the Petitioner was not performing at an

acceptable level of competence. And once the

agency had made this determination, unless

somehow his performance had changed, we do not

see any basis upon which the agency can change

its mind to in fact certify one who is not

competent, as competent. For the statute,

5 U.S.C. §5335(a)(3)(A), together with its

implementing regulations which we haye already

cited, make it crystal clear that unless the

employee's performance is found to be at an

acceptable of performance, he simply is not

entitled to his WGI.

The agency, in the letter of March 19, 1971,

—

clearly indicated that this was the decision that

it had reached. Moreover, the official who made it

reiterated his opinion at the hearing held in this

respect that Gratehouse was not entitled to his

WGI. It follows, that the agency had no more

authority to grant the increase, than the Petitioner

had to accept it in consideration for his

resignation.

The principle of law we invoke is well

known :

"The well established general rule is that

an agreement which violates a provision...

of a statute, or which cannot be performed

without violating such a provision, is

illegal and void". 17 Am Jur2d Contracts

5165, and cases cited at Note 8. 5

To put it another way, once the agency had

reached the conclusion that Petitioner was not

entitled to his merit increase, to provide it to

him in consideration for his resignation was

beyond its power. This point can be made clearer

by considering other situations. For example,

suppose the agency refused to grant to an employee

a merit increase unless he transferred, or, unless

he consented to a reduction in grade, or unless he

was willing to perform his work at a higher level

without pay. Can there be much doubt that granting

or withholding merit increases on these grounds is

contrary to the standard imposed by Congress.

Only a cursory reading of the implementing

regulation determines the issue, for

The Head of the agency: 6

"Shall not award within-grade increase to

employees who do not clearly meet the

the statutory standard for such award."

Here the Agency cannot, we suggest, defend its

illegality by claiming that this is what the

employee wanted. For if the wishes of the employee

are the governing standard, the regulations should

so provide. But the perfidity of the action here

involved is more serious, for viewed in context

of what, in fact, occured, one is left with the

conclusion that the agency, and particularly, the

Petitioner's supervisor was not concerned with

his promises, or his lawful duty. He was concerned

in getting rid from the federal service an employee

whom he considered undesirable and lacking in

acceptable performance, and by whatever means he

had at hand.

5 Footnote 8.Ewert v Bluejacket,259 US 129,66 L. ed

858,42 S.Ct442; Connolly v Union Sewer Pipe Co.184

US 540,46 L.ed679,22 S.Ct431; United States v Trans-

Missouri Freight Ass.166 US 290; Kaiser-Frazier

Corp. v Otis & Co.195 F.2d 838; Ware v United

States,154 F 577, cert.den. 207 US 588, 52 L. ed

353, 28 8. Ct. 255.

6 See 5 C. F. R. 6531. 407 (e) (1) (1971).

The avoidance by the Court of Claims in meeting

the argument of Petitioner that the agency was

permitted to use and abuse its authority to grant

or withhold merit increases, thus, gives approval

to federal agencies to obtain the benefits of what

clearly is an unlawful bargain. This Court has

repeatedly refused to permit parties to benefit

by their unlawful bargains. It follows that this

Court should grant the writ sought, examine the

legality of the agency's actions and determine

whether or not a federal agency may use its

authority as is indicated here.

CONCLUSION

Your Petitioner says that the Court below hus

decided questions affecting the administration by

a federal agency of a federal statute in a manner

departing from that which was clearly intended by

Congress, which permits great abuse, and which

permits an agency to obtain the benefit of an

illegal bargain. These questions are of great

importance and have been decided in a manner

departing from cognate cases.

Respectfully submitted,

DONALD R. GRATEHOUSE ,Pro Se

2228 Georgian Woods Place

Wheaton, Maryland 20902

Phone: 933-3279

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this Petition,

with Appendix attached thereto, was mailed, first-

class, postage-prepaid, to the Solicitor General,

United States Department of Justice, Washington,

D.C. 20530, this PT aay of Avevsr i

1977.

DONALD R. GRATEHOUSE

TITLE 5 (IN PART)

Chapter 53 (1970)

§5335. Periodic step-increases.

(e) When a determination is made under sub-

section (a) of this section that the work of an

employee is not (emphasis added) of an acceptable

level of competence, the employee is entitled to

prompt written notice of that determination and

an opportunity for reconsideration of the

determination within his agency under uniform

procedures prescribed by the Commission. If the

determination is affirmed on reconsideration, the

employee is entitled to appeal to the Commission.

If the reconsideration or appeal results in a

reversal of the earlier determination, the new

determination supersedes the earlier determination

and is deemed to have been made as of the date of

the earlier determination. The authority of the

Commission to prescribe procedures and the

entitlement of the employee to appeal to the

Commission do not apply to a determination of

acdeptable level of competence made by the

Librarian of Congress.

TITLE 5 — C.F.R.

(IN PART)

Chanter 1

§531.407 Work of an acceptable level of competence

(b) Commun cation. An agency shall establish

procedures that ensure:

(1) That supervisors keep their employees

currently advised of their performance, and

(2) That at least 60 days in advance of the

date on which an employee will complete his waiting

period, his supervisor shall inform him of any

factor that raises a question about the employee's

work being of an acceptable level of competence.

However, a failure to inform or timely inform an

employee under this paragraph does not delay or

otherwise affect the determination required to be

made under section 5335 of Title 5, United States

Code, and this section.

(e) Determ. nation. (1) In making his deter-

minations, the head of an agency or his designee

shall make effective use of this authority to

stimulate optimum performance among his employees

and:

(1) Shall not award within-grade increases to

employees who do not clearly meet the statutory

standard for such award, recognizing that for these

increases performance must be of sufficient level

to merit a pay increase, not just adequate for

retention on the job; (emphasis added) and

(11) Shall award within-grade increases to

employees when they do clearly meet that standard

and meet the other requirement of this subpart.

(2) The head of the agency or his designee

in determining whether an employee's work is of an

acceptable level of competence shall:

(1) Base his determination on the essential

requirements of the employee's position;

(ii) Make the determination as of the completion

of the waiting period;

(iii) Base his determination on the employee's

performance during the waiting period; and

(iv) Record the determination in writing.

(3) When the head of an agency or his designee

determines that an employee's work is not (emphasis

added) of an acceptable level of competence (here-

inafter referred to as “negative determination")

under subparagraph (2) of this paragraph, he

shall inform the employee in writing, not later

than the completion of the waiting period:

(1) Of the basis for the negative determination;

and

(ii) Of the employee's right to secure re-

consideration of the negative determination as

provided by paragraph (d) of this section and of

the time limits within which the employee may

request reconsideration.

(4) Failure to inform an employee of a negative

determination as required by subparagraph (3) of

this paragraph may not be the basis for changing

a negative determination.

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Washington, D.C. 20410

Office of the Under Secretary

MAR 19 1971

Mr. Donald R. Gratehouse

Economist

Office of Economic Analysis

Office of the Deputy Under Secretary

Department of Housing and Urban Development

Washington, D.C. 20410

Dear Mr. Gratehouse:

This is a very unpleasant letter for me to write

and probably more unpleasant for you to read.

It concerns your less-than-satisfactory

performance as an economise, Grade GS-13, in

the Economic Analysis since October 1970.

As a member of the staff responsible for

providing economic intelligence in response

to the needs of the chief officials of the

Department, you were expected to keep abreast

of important developments in the several fields

that you were assigned to cover-- construction

materials production and prices, building trades

labor supply and wages, and the supply and prices

of land needed for housing sites. Im monitoring

these critical factors affecting housing

production and costs, you were expected to

maintain appropriate data series and to perform

meaningful analysis at a level that reflects

the competence of a GS-13. economist.

More specifically, you were requested in early

October to prepare a study of land prices in

anticipation of the work that needed to be done

in connection with the preparation of the Third

Annual Housing Goals Report. This study was

never received. In early December, you were

assigned the specific responsibility for the

preparation of Appendix D of the Third Annual

Goals Report dealing with "Materials, Land and

Manpower Requirements in Housing Production."

Despite the repeated exhortations by your

immediate supervisor, Duane McGough, and me,

to have a draft of the Appendix ready by

January 15, 1971— the deadline established

by the Deputy Under Secretary, nothing was

received from you until the third and fourth

weeks of January. The submitted data and

drafts had to be completely revised by staffs

of the Departments of Commerce and Labor as well

as by other members of the Office of Economic

Analysis in order to cast them into understandable

language and relevant data comparisons.

Your unsatisfactory performance of these basic

duties of your job was matched by your lack of

concern for the work responsibilities of the Office.

First, you had pursued the practice. of reporting

for work at around 9:30 am most mornings,

sometimes as late as 9:45am, even though the regular

work hours of the Office run from 8:45 sm yo 5:15

pm. Moreover, you were terribly put out by my

insistence that you are expected to be in the

Office by 8:45 am each morning, just as the

other members of the staff are required to do.

Second, you had such little regard for the Office

work for which you are responsible that you

requested permission to spend half of your

working time in working with the Office of the

General Counsel as a means of furthering your law

education. Considering the many tasks in your

area of responsibility that remain undone, I,

of course, refused to grant such permission.

Only after repeated requests, including a written

memorandum, did you undertake to tabulate critical

statistics on construction materials and labor,

even though such data are readily available

from Federal agency and trade association reports.

As yet, you have not submitted any analytical

studies of such data showing: (a) the labor and

materials requirements for typical housing

units, (b) the competing demands for building

materials and construction labor from commercial

and industrial construction, (c) the degree of

availability of substitues materials and labor

force, in the event shortages arise, and (d)

the capacity of the respective building material

industries and construction labor force to expand

in response to increasing construction

rewuirements. Considering the abundance of

economic and trade literature on these subjects,

these analytical tasks should not have been

too difficult to perform. Nonetheless,

they have not been done, although you have

been employed in the Office of Economic

Analysis for over three years.

In checking with your former supervisors,

officials of other agencies with whom you

have dealings and with senior members of the

Office, I learned that you low level of

performance and competence persisted throughout

the past three years. In fact, in one

discussion with me concerning your unsatisfactory

performance, you conceded that in the past

you had a tendence to "goof off".

After consultation with the Deputy Under

Secretary and with the Director of Personnel,

I have prepared this written notice to advise

you that your within-grade salary merit

increase, scheduled for June 1971, is being

indefinitely withheld and that your work

performance is not of a caliber to merit Continued

2323 Sincerely,

Arnold H. Diamond

Acting Director

Office of Economic Analysis

September 1, 1971

Hr. Arnold H. Diamond

Director

Office of Economic Analysis

Office of the Deputy Under Secretary

Department of Housing and Urban Development

Dear Mr. Diamond:

Last May 26, 1971, I signed a resignation in ex-

change for your signature giving me the normal step

increase for my grade level. The effective date of

the resignation was set for September 3, 1971. Had

I not signed the resignation, it was your stated

intention to deny the step-increase.

It is my informed belief that this resignation was

the product of illicit actions and based on faulty

contractual grounds. It is my further belief

that this agreement involving a mutual exchange of

personnel actions was itself founded on bad faith.

I, therefore, request the immediate return of my

signed resignation.

Yours very truly,

Donald R. Gratehouse

Economist

Office of Economic

Analysis

UNITED STATES CIVIL SERVICE COMMISSION

Washington, D.C. 20415

Mr. Edward Williams, Director Nov 4 1971

Division of Technical Personnel Services

Office of Personnel

Housing and Urban Development

451 7th Street, S.W.

Washington, D.C. 20414

Dear Mr. Williams:

This is in further reference to the September 15,

1971 appeal of Mr. Donald R. Gratehouse pro-

testing the action of the Department of Housing

and Urban Development in refusing to permit the

withdrawal of his resignation submitted May

20, 1971, effective September 4, 1971; and your

reply of November 2, 1971.

Chapter 715, Subchapter 2-3, of the Federal

Personnel Manual contains the Commission's

instructions to the agencies concerning withdrawal

of resignation and reads in pertinent part:

"When the agency does not permit the 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 disrup-

tion 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."

The record before us shows that Mr. Gratehouse

and his representatives met with his supervisor

and other officials of the Department on Sept en-

ber 2, 1971, at which time the appellan® submitted

to the Department his written request, dated

September 1, 1971, that his resignation be re-

turned. The Department denied his request. Your

November 2, 1971 letter does not clearly state

what explanation was given to Mr. Gratehouse

by the Department for this action, nor does the

appellant state precisely what reason was given

to him for the denial of his request.

You did state in your November 2, 1971 letter

that: "The withdrawal was denied for a valid

reason: the position for which Mr. Gratehouse

wasresigning was to be - and has since been-

abolished as part of the reduction in staff of

800 employees in our Headquarters offices..."

We Sonclude , therefore, that the Department re-

fused Mr. Gratehouse's request that his resigna-

tion be withdrawn in order to avoid the difficul-

ties attendant upon following the required

procedures necessary to separate him from a

position which was to be subsequently abolished.

In view of the foregoing, we conclude that the

Department did not explain to Mr. Gratehouse

that it had a valid reason for denying his

request that his resignation be withdrawn, nor

did it in fact have a valid reason for this

denial. We find, therefore, Mr. Gratehouse's

resignation to have been effectively withdrawn

on September 2, 1971, and his separation on

September 4, 1971 was an adverse action subject

to Part 752-B of the Civil Service regulations.

Section 752.202 of Part 752-B provides for cer-

tain procedures to be followed in effecting

adverse actions, including removal. Among

these are: providing the employee with 30 days

advance written notice stating the reasons

for the proposed action specifically and in de-

tail; giving the employee a reasonable time to

answer, personally and in writing; and

furnishing the employee with a decision in

writing prior to the action being effected.

Since this action was taken without following

the procedures set forth in Section 752.202 of

the regulations , we find Mr. Gratehouse's

separation to be fatally defective from a proce-

dural standpoint.

In view of the foregoing, we recommend that

the Department of Housing and Urban Develop-

ment restore Mr. Gratehouse to his former

position retroactive to the day following the

effective date of his removal, September 4,

1971. This decision relates only to a proced-

ural deficiency and does not constitute any

ruling on the merits or sufficiency of the

reasons the Department may have for removing

Mr. Gratehouse from the service.

This decision becomes a final decision of the

Civil Service Commission unless the agency

files an appeal, in duplicate, with the Board

of Appeals and Review, U.S. Civil Service

Commission, Washington, D.C. 20415, within

fifteen (15) calendar days of receipt of this

decision.

Sincerely yours,

Herman D. Staiman, Chief

Appeals Examining Office

UNITED STATES CIVIL SERVICE COMMISSION

BOARD OF APPEALS AND REVIEW

Washington, D.C. 20415

Mr. James C. Curvey

Director

Office of Personnel

Department of Housing and Urban Development

Washington, D.C. 20410

MAY 5 1972

Dear Mr. Curvey:

This is in reference to the appeal which was

submitted by your agency to the Board of Appeals

and Review from a decision issued by the

Commission's Appeals Examining Office on November

4, 1971 in the case of Mr. Donald R. Gratehouse.

The Appeals Examining Office found that the

separation by resignation of Mr. Gratehouse

on September 4, 1971, was fatally defective from

a procedural standpoint. The Appeals Examining

Office based its decision on a finding that Mr.

Gratehouse requested the withdrawal of his

resignation before its effective date, that the

agency denied his request, and the agency did

not have, and did not offer Mr. Gratehouse a

valid reason for its denial of his request for

withdrawal of his resignation. Under the

circumstances, the Appeals Examining Office found

that Mr. Gratehouse's resignation was effectively

withdrawn on September 2, 1971, and that his

separation September 4, 1971, constituted an

adverse action subject to Part 752-B of the Civil

Service Regulations. Since the separation action

was not taken in accordance with the procedures

set forth in section 752.202 of those Regulations,

it was found to be fatally defective from a

procedural standpoint. Accordingly the Appeals

Examining Office recommended that Mr. Gratehouse

be restored to his former position retroactively

to the day following the effective day of his

removal.

By letter dated November 23, 1971, your agency

appealed to the Board of Appeals and Review

from the decision issued by the Appeals Ex-

ining Office. A copy of the appellate rep-

resentations was furnished to Mr. Gratehouse

who submitted comments thereon by letter dated

January 13, 1972. A copy of Mr. Gratehouse's

comments was furnished to your agency for

information. Supplemental comments were then

sent to the Board by your agency under date

of February 22, 1972, and a copy thereof was

furnished to Mr. Gratehouse for his information.

The Board of Appeals and Review has completed

a careful review of the information of record

in the light of the representations submitted

in support of your agency's appeal, and the con-

ments submitted by Mr. Gratefouse.

The record is clear that Mr. Gratehouse sub-

mitted his resignation in writing under date

of May 20, 1971, and that he indicated that

the action should become effective at the close

of business on September 4, 1971. However,

by letter dated September 1, 1971, submitted

to the agency on September 2, 1971, he re-

quested the immediate return of his resign-

ation. The record shows that a meeting took

place between Mr. Gratehouse and agency per-

sonnel on September 2, 1971. His request for

withdrawal was not granted, and his resignation

became effective on September 4, 1971.

In its decision, the Appeals Examining Office

cited Chapter 715, Subchapter 2-3, of the

Federal Personnel Manual which contains the

Commission's instructions to agencies con-

cerning the withdrawal of resignations. Those

instructions provide that an agency must have a

valid reason for refusing to permit an employee

to withdraw his resignation before its effective

date, and further, that the agency must explain

its reason to the employee.

In the instant case, Mr. Gratehouse submitted

a written request for the withdrawal of his

resignation after a period of more than three

months had passed since he notified the agency

of his desire to resign. The request for with-

drawal was submitted prior to the effective

date of resignation, but just barely so, as

the effective date of resignation was imminent.

It was, as the agency stated, an attempt to

withdraw the resignation "at the eleventh

hour

There is no question that agency personnel

gave consideration to Mr. Gratehouse's request

for the withdrawal of his resignation. The

record is clear that a meeting took place

between Mr. Gratehouse and agency personnel

on September 2, 1971, and that his request

for withdrawal was discussed. Representations

from both the agency and Mr. Gratehouse reflect

that the request for withdrawal was refused,

or denied. The agency contends that it was

in the midst of a substancial reduction in its

staff at the time, and that it so informed

Mr. Gratehouse when he sought to withdraw his

resignation. Representations made by Mr.

Gratehouse indicate that, at the time of the

meeting of September 2, 1971, a wage-price

freeze in government was discussed.

In view of the foregoing facts and circumstances

the Board of Appeals and Review finds that the

agency gave consideration to Mr. Gratehouse's

request for the withdrawal of his resignation,

that it decided to deny his request for valid

reasons, and that it so informed Mr. Gratehouse.

Therefore, the Board finds that Mr. Gratehouse

did not effectively withdraw his resignation, and

that his resignation properly became effective on

September 4, 1971.

The Board of Appeals and Review hereby reverses

the decision issued on Novewber 4, 1971, by the

Commission's Appeals Examining Office, and

withdraws the recommendation for corrective action

which was contained in that decision. Civil

Service Regulations provide that decisions of the

Board of Appeals and Review are final, and that

there is no further right of administrative

appeal.

For the Commissioners:

Sincerely yours,

William P. Berzak

Chairman

—— — —

In the Gnited States Gourt of Claims

No. 328-73

(Decided March 19, 1975)

DONALD R. GRATEHOUSE v. THE

UNITED STATES

Ben Paul Noble, attorney of record, for plaintiff. Noble,

Mann, and Schoenfeld, of counsel.

Frank I. Clabaugh, with whom was Assistant Attorney

General Carla A. Ilills, for defendant.

Before Cowen, Chief Judge, Sure, and Benner,

Judges.

ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND

DEFENDANT'S CRORS-MOTION FOR SUMMARY JUDQMENT

Bennerr, Judge, 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 depart-

mental 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

did not consider it and violated no adverse action procedures,

as alleged by plaintiff. Defendant asks that we dismiss the

56% 7 78

claim or remand it to the CSC for a hearing on the merits of

the allegation of resignation induced by coercion.

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-15, 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.” Fol-

lowing receipt of this letter, plaintiff met with the Deputy

Under Secretary, who, after hearing plaintiff's response, ad-

vised him that he might consider seeking other employment.

Subsequent efforts to secure other employment were, how-

ever. unsnecessful.

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 ef-

fective 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 Septem-

ler 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 “had faith” on defendant’s part. At a meeting

of plaintiff and HUD personnel on the same day, his request

for withdrawal of resignation was denied. However, plaintiff

was offered a 60-day temporary appointment in order to give

him more time to find another position. Plaintiff rejected the

offer and he was separated on September 4, the effective date

of his resignation.

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.’ Specifically,

he alleged deception, intimidation, time pressure, and duress.

In reply, the agency argued that the resignation was volun-

tary and that it had a valid reason for refusing plaintiff's

requested withdrawal of the resignation. The chief of the

CSC Appeals Examining Office, noting that pursuant to

FPM chapter 715, subchapter 2-3, the agency was required

to “have a valid reason for denying the withdrawal,” ruled

on November 4, 1971, that HUD had not stated a valid reason

or communicated one to plaintiff, that his separation was

therefore an adverse action, subject to 5 C. F. R. Part 752-B

(1972), and that the regulations pertaining to such action

had not been followed, It was recommended that plaintiff be

restored to his position retroactive to September 4. The Ap-

peals Examining Office stated that it was ruling only that

there had been a procedural deficiency and that the decision

“does not constitute any ruling on the merits or sufficiency

of the reasons the Department may have for removing

Mr. Giratehouse from the service.” We note also that the

decision made no reference to plaintiff's claim that his resig-

nation was involuntary from its inception.

HUD promptly appealed the foregoing decision te the

CSC’s Board of Appeals and Review (BAR). IUD’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. HUD alleged, among the grounds for its action,

that plaintiff's position had been eliminated and that he had

been replaced by another person with a GS-9 rating. Return-

ing plaintiff's resignation would thus have created adminis-

g VPM Sapp. 752-1, 681-22 (1) (1972), states, in pertinent hart:

“* © © (A) normally voluntary action Ie, a resiguation. optional retire-

ment, or reduction in rank or pay at the employee's request—-ix an ndverne

action if tt tx

tion obtained by duress, time pressure, intimidation, or decep-

trative disruption, in HUD’s opinion. Such disruption and

reassignment was sufficient to support HUD’s actions pur-

snant to CSC regulations and chapter 715, subchapter 2-3, of

the Federal Personnel Manual (June 21, 1971) :

* * * When the agency does not permit an employee

to withdraw his resignation before its effective date, the

agency must have a valid reason for denving the with-

drawal. 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 he explained to the employee. * * *.

Plaintiff contested TITD’s assertions.

In its decision of May 5. 1972, the Board of Appeals and

Review reversed the Appeals Examining Office, finding that

IT™D’s stated reasons for refusal to permit withdrawal of

the resignation were within required guidelines and valid.

Plaintiff's resignation. the board stated, “properly heeame

effective.on September 4, 1971.” Thus, the board did not di-

rectly address the allegation in plaintiff's appeal that his

resignation was involuntary due to intimidation and decep-

tion. 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 regard-

less 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 richt 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 resigna-

tion. Plaintiff's petition to the court was filed on August 23.

1973. Tt was amended on April 4, 1974. Plaintiff's motion

for summary judgment was filed on July 3. 1974.

It is now hornbook law in our jurisdiction that an involun-

tary resignation constitutes an adverse action by the agency.

*Piaintif’s first amended petition charges that he was separated on the

bari of agency action alleged to be arbitrary and capricions and in violation

of agency law and reguiation. Plaintiff's motion for summary judgment .

limited, however. to the rights of plaintiff by reason of fallure of CBC to

accord him his procedural rights to a hearing on the merits of the

that his resignation was vold and illegal because obtained by duress. This

opinion is limited to this ineue raised by the motion.

FPM Supp. 752-1, § S1-2a(1) ; McCormack v. United States,

204 Ct. Cl. 371 (1974); Cosby v. United States, 189 Ct. Cl.

528, 417 F. 2d 1345 (1969). Where there is a nonfrivolous

allegation by a Government employee that his resignation

was involuntary, he is entitled. in the usual case, upon timely

appeal to CSC, to a hearing before that body. 5 C. F. R. Parts

752, 772 (1972); Goodman v. United States, 358 F. 2d 532

(D.C. Cir. 1966); Dabney v. Freeman, 358 F. 2d 533 (D.C.

Cir. 1965); McCormack v. United States, supra; Cunning-

ham v. United States, 191 Ct. Cl. 471, 423 F. 2d 1379 (1970).

Where it is found that an adverse personnel action has been

carried out in substantial violation of procedural regulation,

it is a void action and the employee is entitled to recover

any pay of which he has been illegally deprived. Vitarell/i v.

Seaton, 359 U.S. 535 (1959) ; Service v. Dulles, 354 U.S. 363

(1957) ; Leone v. United States, 204 Ct. Cl. 334 (1974): Jones

v. United States, 203 Ct. Cl. 544 (1974); Hanifan v. United

States, 173 Ct. (J. 1053, 354 F. 2d 358 (1965). Exceptions are

made to the rule where the procedural error is deemed

harmless.*

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 memo-

randum of appeal to the CSC spoke of coercion for the first

time and referred to FPM chapter 752. At that point the

CSC Appeals Examining Office focused on the requirement

of FPM chapter 715 that an agency must have a valid reason

* Haynes v. United States, 190 Ct. Ci. 9, 418 V 2d 1280 (1969): MeCailin

v. Uuited States, 180 Ct. Cl. 220 (1987): Oreamer v. United States, 174 Ct.

Cl. 408, cert. denied, 385 U.S. 819 (1966): Greenway v. United States, 103

Ct. CL. 72, 6 (1968), 175 Ct. Cl. 350, cert. denied, 285 U.S. 881 (1968). 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. 808 (1961); Hanifan v. United States, 173 Ct. Cl. 1052. 854

F. 24 358 (1965); Garrott v. United States, 169 Ct. Cl. 186, 840 FV 24 615

(1965).

3¢

for refusing to permit withdrawal of a resignation. In re-

viewing the action of the Appeals Examining Office the BAR

apparently never realized that plaintiff had made a claim of

involuntary resignation, for it focused entirely on the issue

of whether or not the decision of the Appeals Examining

Office was sustainable. This oversight is not difficult to under-

stand in the context of events leading to the resignation and

the demand for its withdrawal, for until after plaintiff left

the Government payroll there was no issue about an involun-

tary resignation.

When the BAR decision came down, it should have been

instantly clear to plaintiff that the BAR had failed to con-

sider 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. Plain-

tiff did not exhaust his opportunity to gain such reconsidera-

tion at the administrative level. If an employee sincerely

fecls that there has been an oversight of this kind on his

appeal, yet he does not say anything about it or use the reg-

ulations 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 maxi-

mize his claimed damages. On the other hand, the board’s

decision stated that “there is no further right of administra-

tive 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 judg-

ment was filed on July 3, 1974, counsel for defendant in a

telephone conversation offered plaintiff « hearing before the

CSC. Defendant’s attorney emphasized in oral argument

“BEST COPY AVAILABLE

8 10

that the offer of a hearing was made as a matter of “grace,”

not as an admission of any prior procedural error. He also

stated that the hearing was to have retroactive effect, i.c.,

a decision against plaintiff on the duress question would

preclude any recovery of back pay by plaintiff. The plaintiff

refused the offer.

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 recon-

sider 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 con-

ducted 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, separ-

ation of an employee in violation of procedural regulations is

illegal and void, except where it is harmless error. The em-

ployee in effect was never separated, and never stopped draw-

ing 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

run, the purpose of a correction of that error can only be to

determine the merits of the dispute prospectively.

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 jus-

tified 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 cireum-

stances 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 plain-

tiff 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 depart-

ment before going to CSC about it, assuming timely appeal

to CSC, as here. Tt is equally clear from regulations set forth

in the ITUD Handbook, § 771.3, Adverse Actions and Ap-

„On the other hand, we do not believe that the Government is heipless 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

procedures went forward, it would be freely given la appropriate circumstances.

“>

peals, which plaintiff admits he had access to and knew about,

that plaintiff could have claimed before his department that

he was the victim of an adverse action and that he would

have obtained a hearing on the charge. But, he elected to go

to CSC.

Plaintiff's claim suffers from the disability that his sepa-

ration was not the result of a violation of procedural regula-

tions 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 atten-

tion of the BAR 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 be-

came effective. There is no reason to assume that had plain-

tiff 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 hear-

ing 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 re-

cently in Hart v. United States, 204 Ct. Cl. 925 (1974), cert.

denied, U.S. —— (Dee. 9, 1974), should apply:

* * In Cohen v. United States, 177 Ct. (I. 599, 369

F. 2d 976 (1966), cert. denied, 387 U.S. 917 (1967), this

court held that a plaintiff is required to show “demon-

strable 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,

if a claim could be made by administrative

action or under the Back Pay 5 U.S. C. § 5506

(1970) * * *,

We would only add that any other rule would put a

premium on form rather than substance and permit a plain-

tiff to recover for technical rule infractions without demon-

strated 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 plain-

tiſſ'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 posi-

tion, 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 im-

properly 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). Plain-

tiff 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 sub-

mitted 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 plain-

tiff has created n 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 con-

clude 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

selecting a delayed date for his resignation to go into effect.

Defendant offered plaintiff still additional time to job- hunt

but it was refused. Defendant charges that plaintiff actually

sought an extension of the resignation date shortly before he

raised the coercion issue. Defendant concludes that this case

is just an effort by plaintiff to reap a windfall for the con-

sequences of his failure to perform on the job and that, in

any event, he cannot be reinstated to a position that was

abolished.

These contentions, of course, all require proof. As in

McCormack v. United States, supra, Goodman . United

Statex, supra, and Dabney v. United States, supra, it is proper

that this issue of whether the resignation was in fact volun-

tary be decided in the first instance by the Civil Service Com-

mission to which it is remanded for hearing and decision. If

plaintiff wishes to pursue the matter further he has the bur-

den 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 Personne!

Manual, and in decided cases. Pitt v. United States, 190 Ct.

C1. 506, 420 F. 2d 1028 (1970) ; Dabney v. Freeman, 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 he 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. Tf

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.

nited 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 JJ. S. C. § 1491 as amended by Pub. L. 92-415, 86 Stat. 652

(1972), the case is remanded to the Civil Service Commission

42 | .

for a hearing on plaintiff's charge of resignation induced by UNITED STATES CIVIL SERVICE COMMISSION

defendant’s coercion, Further proceedings in court are sus- FEDERAL EMPLOYEE APPEALS AUTHORITY

pended for a period of 6 months from this date. Plaintiff's '

counsel is designated to advise the court by letter to the trial ö 66

judge of the status of the remand proceedings pursuant to Washington, D.C. 20415

— 149 (f). Attention of counsel and the Commission is also

directed to Rule 150, The motion for summary judgment and

cross-motion for summary judgment are allowed and denied APPEAL OF DONALD R. GRATEHOUSE

consistent with this opinion. UNDER PART 752, — 1 oe THE CIVIL SERVICE

DECIDED on OCT 6 1975

I, INTRODUCTION

On March 19, 1975 the United States Court of

. Claims issued decision number 328-73 in the

, case of Donald R. Gratehouse v. the United

"States, in which it remanded the case to the

Civil Service Commission "for a rehearing on

Plaintiff's charge of resignation induced by

Defendant's coercion". The Defendant referred

to is the Department of Housing and Urban

Development ( HUD ).

II. BACKGROUND

By letter dated September 15, 1971 Mr. Grate-

house submitted an appeal to our predecessor

office, the Appeals Examining Office (AEO),

& 0)*aneEr’ ens OFrice es

—

44 45

that HUD had a valid reason for doing so; and

that HUD informed the appellant of this reason.

BAR reversed the November 4, 1°71 decision

of the AEO, and withdrew the AEO's recommendation

for corrective action. It also made no finding

United States Ciyil Seryice Commission, in which

he alleged that his separation by resignation

from his Economist, GS-110-13, Step 4, $19,537

per annum position with HUD in Washington, D.C., |

effective SEptember 4, 1971, "was the product

of coercion and constitutes an involuntary

discharge". He also presented evidence to show

that he requested the return of his resignation

on September 1, 1971; and that his request was

denied on September 2, 1971.

On November 4, 1971 AEO issued a decision in

which it found that the agency did not give the

appellant a valid reason for denying his

request for the withdrawal of his resignation;

that the agency did not have a valid reason

for its refusal; that Mr. Gratehouse's

resignation was, therefore, effectively with-

drawn on September 2, 1971; and that the

agency's action in separating him on September

4, 1971 was an adverse action subject to the

Commission review under Part 752 of the Civil

Servite Regulations. It found further that

the agency's action was fatally defective

from a procedural standpoint, and recommended

that HUD restore the appellant to his former

position. The decision made no finding on the

appellant's allegation that his resignation

was obtained by coercion.

The agency appealed the AEO decision to the

Commissions's Board of Appeals and Review

( BAR ) on November 23, 1971. BAR issued its

decisiog,on May 5, 1972 in which it found that

HUD did give consideration to Mr. Gratehouse's

request for the withdrawal of his resignation;

on appellant's allegation that his resignation

was obtained by coercion.

Mr. Gratehouse filed his petition with the

United States Court of Claims on August 23, 1973,

and the Court issued its decision on March 19,

1975 as noted supra. The hearing ordered by

the Court of Claims was held at Washington, D.C.

on June 13, 1975. Mr. Gratehouse was

represented by Ben Paul Noble and Craig T.

Sawyer, Attorneys at Law. HUD was represented

by Mrs. Ellen Banta and Mr. William L. Johncox,

Attorney-Advisors. Five witnesses, including

the appellant, testified at the hearing.

III. ANALYSIS AND FINDINGS

Federal Personnel Manual Supplement ( FPM

Suppl.) 752-1 contains the Commission's

principles, interpretations and policies

pertaining to the adverse action regulations. The

following quotation from FPM Suppl.752-1,

Subchapter $1-2, which is concerned with

voluntary and involuntary separations and

reductions, is important to our adjudication of

this appeal:

“a. General (1) Separations and reductions

in rank or pay voluntarily initiated by an

employee are by their very nature actions which

do not require the use of adverse action

procedures. On the other hand, 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. Whether an action is voluntary or

- involuntary is determined not by the form of the

— but by the circumstances that produced

(2) The Commission holds that an action

requested by an employee is voluntary only if the

employee has freedom of choice. The general

principle is that an action is voluntary if the

employee is free to choose, understands the

transaction, is given a reasonable time to make

his choice, and is permitted to set the effective

date. (See McGucken v. U.S. for similar

characteristics the courts consider when

determining the voluntariness of an action.)"

Turning to the facts in this case, Mr. Gratehouse

signed part III. of a Standard Form 52 (SF 52)

on May 26, 1971. This date was established by

his testimony and that of all of the witnesses

at the hearing who had personal knowledge of the

resignation episode. The only handwriting on

that part of the form is the appellant's

signature. The following information was typed

on the form: date resignation is written" is

shown as "5/20/71"; the reason for resigning is

shown as “to accept a new position"; and the

effective date of the resignation is shown as

"c.0.b.9/4/71". Appellant testified that he did

none of this typing.

eee

Four witnesses having first-hand knowledge of

the resignation episode testified at the hearing

namely: the appellant himself; Mr. Arnold H.

Diamond; Mr. Duane T. McGough; and Mrs. Willa

Mae Cook. Their testimonies are discussed below.

The appellant testified that in late 1970 Mr.

Diamond became the Director of the Office of

Economic Analysis, HUD. His first contact with

the new Director took place shortly after Mr.

Diamond entered on duty when he sought approval

of a request for his reassignment to the General

Counsel's Office of the agency. He was then

attending law school. He alleged that Mr. Diamond

was annoyed with this request and disapproved it.

From this bad start his association with the

Director gradually worsened. Eventually, Mr.

Diamond took over his direct supervision from

his immediate supervisor,Mr. McGough. This

resulted in numerous "confrontations" between

himself and Mr. McGough concerning the manner in

which he was performing his assignments. Finally,

on March 19, 1971 Mr. Diamond wrote him a letter

concerning his “less-than-satisfactory performance

as an Economist, GS-13." The Director pointed

out specific instances of this alleged poor

performance in his letter, including "such little

regard" for the office work for which he was

responsible that he had requested permission to

spend half his time working in the Office of the

General Counsel. The letter closed with this

paragraph:

"After consulting with the Deputy Under

Secretary and with the Director of Personnel,

I have prepared this written notice to advise

you that your within- grade salary increase,

scheduled for June 1971, is being indefinitely

withheld and that your work performance is not

of a caliber to merit continued employment."

The appellant prepared a written response to

this letter, which he discussed with Mr. McGough

and then with the Deputy Under Secretary, Mr.

Orlebeke. After discussing the matter with him,

the latter advised appellant that because

there appeared to be a personality conflict

between appellant and Mr. Diamond the matter

would be handled informally (Hearing Transcript,

hereafter called HT, page 32). As a result,

appellant's written response to the March 19, 1971

letter was never given to Mr. Diamond.

An agreement was worked out through Mr. Orlebeke.

Appellant, Mr. McGough and Mr. Diamond discussed

this agreement, the essence of which was that Mr.

Gratehouse was to look for a job outside the Office

of Economic Analysis, and that Mr. Diamond would

not say anything adverse about him to any other

potential employer (HT p.33. He did seek other

employment, including positions in other HUD

o.fices, and Mr. Diamond gave him some assistance

in his search. In late April 1971 he applied for,

and was actively being considered for a position

in the Federal Housing Administration, HUD,

which would have resulted in a promotion.

However, he didn't get the job because Mr.

Diamond gave a poor reference to Mr. Doan,

the person who was considering him. As a

consequence, Mr. Orlebeke's assistant, Mr.

Ganley, read the riot act“ to Mr. Diamond.

(HT 36-41). He subsequently received no offers

of employment prior to his leaving the agency.

From the end of March forward, Mr. Gratehouse

alleged that Mr. Diamond reminded him constantly

that "I've got to do something because the

in-grade is coming due and I want to keep my

options open." (HT p.34) Finally, towards the

end of May Mr. Diamond came in to see him and said:

"All right, what are my options, what are we

going to do, it's only a week off?" He responded

by telling Mr. Diamond that the Deputy Under

Secretary could reassign him; that he could

resign; or that the Director could give him

the within-grade increase and he could continue

looking for other employment. He alleged that

"all of a sudden he (Mr. Diamond) turned quiet

and ran out of the office." Mr. Gratehouse

then discussed the conversation with Mr. McGough

who advised him that he shouldn't have mentioned

resignation as a possible alternative. He then

told Mr. McGough to advise the Director "that

no way in this world is resignation any kind of

possibility so he can strike that off his list"

(HT pp. 44-45). He admitted being concerned

that the withholding of his within-grade increase

would be a black mark on his record which would

make future promotions difficult, but denied that

he was concerned that this might hurt any

political ambitions he might have since he had

none at the time.

Mr. Gratehouse testified that toward the end

of May he was getting to the point where he

couldn't produce and that he got physically ill

with stomach cramps. As a consequence he took

sick leave beginning May 24, 1971 preparatory to

entering Georgetown University Hospital for tests.

On Tuesday, May 25, 1971, he received a call

from Mr. McGough who asked him to report to

Mr. Diamond's office the following morning for a

meeting. When he asked Mr. McGough what the

meeting was about, he was told "Well, I think

there's something cooking and you'd better check

in and maybe he's going to ask you to resign."

He reminded Mr. McGough that he had told him

the preceding Friday that didn't intend to

resign, but the latter told him to come in and

see what it was all about. He then called Mr.

Ganley and was advised that Mr. Diamond was

going to make him an offer and he should take

it "whatever it is". He also called the

personnel director and left messages, but his

calls were not returned. (HT pp 45-48).

On Wednesday, May 26, 1971 he attended the meeting

which was held in Mr. Ganley's outer office. Mr.

Diamond, Mr. McGough, and Mr. Ganley's secretary,

Mrs. Cook, were present. Mr. Diamond got the

resignation form from Mrs. Cook and offered

to sign the "in-step increase" if Mr. Gratehouse

would resign. He showed Mr. Gratehouse the within-

grade form. Appellant signed the resignation form

effective "September 3, 1971" at the same time Mr.

Diamond signed the form granting him his within-

grade increase. He testified that although

he had no intention of resigning, he did so for

the following reasons: Mr. McGough had indicated

"This is probably the best deal you're going to

get"; Mr. Ganley had advised him “Take whatever

you can get because it's the best thing we can do

for you";because he was afraid of never getting"

any kind of decent job in government if I had an

in-grade denial on my record"; and because Ms.

Debbie DeSault, who handled personnel matters

in his area, and who he had seen in her office

“shortly before this cross- exchange“, had advised

him "I think it's a dirty trick bui it's

probably legal". The effective date of the

resignation was set some months in the future

at the end of a pay period, after some discussion

between the parties present, in order to give

him more time to seek other employment. Mr.

Gratehouse could not recall visiting the agency

to discuss the resignation in person until

the Morning of May 26, 1971, and alleged that he

was given no time to go home and think the

matter over. He estimated that the whole

transaction, from the time he entered the agency

until he signed the resignation form took no

more than 45 minutes. (HT pp. 49-52 and 84-89)

When asked on direct examination by his represent-

ative why he felt he was coerced into resigning

Mr. Gratehouse stated:

"I was coerced in the sense that if I didn't

- — —

sign the resignation he was going to deny me

the increase, and Mr. McGough said, Do it’.

He also testified that he was not advised he

could dispute the withholding of the step-

increase until he late: talked to the union.

It was only after this that he sought to withdraw

his resignation on September 1, 1974.

Mr. Diamond testified that although he was not

Mr. Gratehouse's immediate supervisor, he did

give him assignments, and did meet with appellant

periodically to discuss his performance. After

deciding that appellant's performance did not

warrant an in-grade salary increase, he advised

Mr. Gratehouse by letter dated March 19, 1971

that it was being indefinitely withheld. He

intended to reassess the appellant's performance

in June and felt that this was implied in his

memorandum. After the letter was issued Mr.

Orlebeke “indicated to Mr. Gratehouse that he

would be well advised to seek employment

elsewhere" and told Mr. Diamond to "See what

you can do to help him find another job’ Mr.

Diamond then solicited positions within HUD for

the appellant and gave people with whom he talked

positive statements in appellant's behalf.

However, when Mr. Doan of FHA called and asked

specifically whether appellant had any “negative

features or points“ he felt obliged to tell Mr.

Doan what had transpired. Subsequently Mr.

Oberleke and Mr. Ganley were unhappy: about what

he had done, but felt, given the circumstances,

it was the proper thing to do. He was told by

Mr. Ganley not to interfere with appellant's

seeking other employment again. (HT pp. 92-94,

105, 112-118).

Mr. Diamond stated, in effect, that he did not

ask appellant at any time "What are my options?"

However, some time within one to three weeks

prior to May 26, 1971 he had a discussion with

the appellant, in the presence of Mr. McGough, in

which the appellant stated that this was the first

“somebody had questioned his performance", that he

was thinking of going into politics; that it was

a black mark on his record; and that he concluded

by saying "I would rather resign than have a with-

holding of a within-grade on my record. Up until

this time, Mr. Diamond was hoping that appellant's

performance would improve, and that he was under

the impression that Mr. Gratehouse was still

seeking employment. He stated that he did not ask

appellant to resign. ( HT pp. 120-123, 126-127 ).

Subsequently, while appellant was on sick leave,

Mr. Diamond stated that he told Mr. McGough to call

Mr. Gratehouse to inquire if "he was still

interested in offering to resign as a means of

obtaining the within-grade", and to have him come

in if he was. Mr. McGough reported back that

appellant was "interested in that kind of an

arrangement", and the May 26, 1971 meeting re-

sulted. Mr. Diamond did not recall seeing

appellant on May 25,1971, but identified that as

the date Mr. McGough talked to the appellant

on the telephone. (HT pp 95-96, 134) Mr.

Diamond recalled that the May 26, 1971 meeting

was held in Mr. Ganley's outer office. He, the

appellant, Mr. McGough, and Mrs. Cook were present.

He testified that there was sone discussion to the

effect that Mr. Gratehouse was here to sign a

Form 52 indicating a resignation, and I was going

to be signing a form calling for a within-grade

increase". There was also some discussion of

the time the resignation was to be effective "at

which point this suggestion was that it run through

90 days, and then Mrs. Cook said the pay period

ends-—September 4, and therefore that was the

effective date". (HT pp. 98-99)

Mr. Diamond testified further that between

March 19 and May 26, 1971 appellant began to

produce some of the products he had requested.

— — —

However, he still had doubts about Mr.

Gratehouse's performance. He had received

some agency materials, and possibly the U.S.

Code, concerning “acceptable level of competency’

and was particularly impressed “by the phrase

that the within-grade had to be merited”.

He admitted that as a result of the exchange

of his approval of appellant's within-grade

increase for Mr. Gratehouse's resignation,

the appellant had received a within-grade

promotion to which he was not entitled by

statute. (HT pp. 130, 135-136)

Although Mr. Diamond at first testified that the

resignation forms were typed up at the time of the

May 26, 1971 meeting (HT p.97), upon being

shown that May 20, 1971 date on the resignation

form, he agreed this indicated that the form had

been typed up in advance of the meeting (HT 132).

He stated that the HUD Form 8064, "Competance

Certification of Work Performance" , was also

prepared in advance, probably by the personnel

office. He admitted that the May 20, 1971 date

on this latter form was in his handwriting,

and that he may have placed that date on the

form because he had observed the date May 20, 1971

on the resignation form (HT pp. 132,134 and

Appellant's Exhibit #2. at the hearing).

Mr. Diamond was asked on cross examination if

he had ever told Mr. Gratehouse "that he had

any rights with respect to the determination

you had made?" Mr. Diamond's only response

was that appellant had contended verbally that

his performance warranted the within-grade

increase (HT p. 110). Nothing in the record

shows that the appellant was ever advised by

Mr. Diamond or by anyone else in the agency, of

the provisions of part 531, subpart b, of the

Civil Service Regulations prior to the acceptance

of his resignation. One of the provisions of

this subpart is that an agency shall give an

employee an opportunity to secure reconsideration

of a determination that his work is not of an

acceptable level of competance.

Turning to Mr. McGough's testimony, at the time

of these events he was Acting Assistant Director,

Office of Economic Analysis, and the appellant's

immediate supervisor. He testified that after

Mr. Diamond became Director of the Office, the

latter gradually took over some of his supervisory

functions, including some direct supervision of

the appellant. Mr. McGough became aware that Mr.

Diamond was increasingly dissatisfied with the

appellant's performance because appellant

frequently reported for work late, because he

did some poor work on analysis, and because he

missed deadlines. After the issuance of the

March 19, 1971 letter the appellant discussed the

contents of the letter with him. He recalled that

Mr. Gratehouse was very upset with the letter, and

that appellant told him that he could not afford

the within-grade denial "because it would not

look good on his record”. Appellant also

mentioned to him that he was going to law

school, wanted to get into legal work, and

might like to go into politics so he preferred

a clean personnel record. However, Mr. McGough did

not believe appellant considered resigning in

March 1971. (HT pp. 139-142)

Mr. McGough became aware that an agreement was

reached that appellant was to seek other

employment, and that Mr. Diamond had agreed not

to interfere with these efforts. Subsequently,

he was called by Mr. Doan of FHA and he gave Mr.

Gratehouse as good an evaluation as he could.

Mr. Doan called him back later and told him that

Mr. Diamond had given appellant a "different

evaluation” than he had. Mr. McGough concluded

that by so doing, Mr. Diamond had interferred

with appellant's seeking a job with FHA .

(HT pp. 157-159)

— —-

———„ĩ„%7ꝗ E —˙*

Turning to the meeting between Mr. Diamond and

Mr. Gratehouse at which the word "resignation"

was first mentioned, Mr. McGough testified that

he was not present at this meeting. Prior to

that time, although he had heard appellant say

he would do almost anything to avoid a black mark

on his record, he had never heard Mr. Gratehouse

use the word resignation in discussing his

situation. After the meeting, however, both

the appellant and Mr. Diamond had discussed it

with him. Mr. McGough gave somewhat contradictory

testimony about what he was told. At one

point in the hearing he testified that Mr.

Diamond told him that Mr. Gratehouse had

offered to resign; and that appellant had told

him he would like to avoid resignation, but if

it was necessary to keep his record clear he

would like to effect some kind of orderly

transfer out of the agency (HT pp. 143-144).

At another point, upon cross~examination, he

testified that he was told by both parties that

resignation was among a number of alternatives

discussed, not that Mr. Gratehouse had specifically

offered to resign. (HTp. 164)

On Monday, May 24, 1971, shortly after the

meeting where resignation was discussed, Mr.

Diamond instructed Mr. McGough to call the

appellant and to ask him to come in as soon as

possible. The gist of the message which he

was to deliver to appellant was that Mr. Diamond

wanted to resolve the matter because the time

for withholding the within-grade increase was

coming up; and that, since Mr. Gratehouse said

he would prefer to resign rather than have a

black mark on his record, Mr. Diamond was

willing to take him up on the offer and give him the

within-grade increase if he would resign. Mr.

McGough delivered this message. The appellant replied

that he didn't think that was the best solution for

him.McGough stated then he suggested that since

Gratehouse had some promising leads for a job, it

might be in his best interest to resign if

he wanted to avoid having the within-grade

denial on his record; and that a longer period

(presumably before the resignation would become

effective) might be worked out to give him an

opportunity to locate another position. (HT pp.

146-147)

Mr. McGough's recollection of the events which

followed differed from that of appellant and Mr

Diamond. He stated that Mr. Gratehouse came into

his office briefly at noon Tuesday, May 25, 1971.

He thought that he and the appellant went into

Mr. Diamond's office on that day, and that Mr.

Diamond then “made the offer that if Mr.

Gratehouse would follow on his offer to resign

Mr. Diamond would sign his within-grade increase

and give him some time into the summer, July or

sometime , to find another job". He also

recalled that appellant advised him that since

he had called personnel before coming in and had

not gotten any response, he was going to the

personnel office that day. (HT 148) At a

later point in his testimony he testified that the

effective date of the resignation was discussed

on May 25, 1971, with Mr. Diamond stating he

wanted the appellant gone by July 1971, and Mr.

Gratehouse responding by requesting more time since

if he went in July, he wouldn't have enough time

to look for a job (HT pp.171-172).

Mr. McGough testified that Mr. Gratehouse

returned to the agency on Wednesday May 26, 1971,

and that the final meeting was held in Mr.

Ganley's outer office. Before the meeting he

suspected that he and the appellant had discussed

the resignation, and he thought he had again

suggested to the appellant that it would be

in his best interests "to accept this kind of

compromise". (HT p. 169) The'papers'were

exchanged at this meeting. Although he did not

see the resignation documents, he believed the

effective date of the resignation was put in

at the last minute. (HT pp. 149-150).

ee eee

Mrs. Willa Mae Cook testified that in May 1971

she worked for Mr. Orlebeke and Mr. Ganley.

She recalled typing in the information shown in

the blanks in part III of the SF 50 form by

which appellant's resignation was effected. She

stated that she did so on instructions from

Orlebeke and Mr. Diamond so it would be ready

“when Mr. Gratehouse and Mr. Diamond were coming

up". She was at first uncertain as to the date

on which she typed the information in, but

testified subsequently that she was sure that

since she put the date May 20, 1971 on the form

that was the correct date on which it had been

prepared. She was present during the resignation

episode and recalled Mr. Diamond saying to Mr.

Gratehouse . . If you sign the resignation then

I will not withhold your within-grade, something

to that effect."

Ms. Deborah DeSault also testified at the hearing.

She identified herself as presently being a

"Personnel Officer....Chief of the Operations

Area in the Headquarters Operation of the

Division of Office Personnel", HUD. At the time

of the events in question she was responsible

for the personnel work in the office in which

appellant worked; and was acquainted with him

from October 1970 to October 1971. She recalled

attending a meeting in September,1971 when the

appellant sought to withdraw his resignation.

but she could not recall any prior conversation

with Mr. Gratehouse concerning the withholding

of his within-grade increase. She did testify

that she thought it was improper , in the abstract,

for a supervisor to give an employee a within-grade

increase for which the supervisor felt he did not

meet the statutory requirement in return for the

employee's resignation. (HT pp. 174-180)

In addition to the testimony of witnesses, the

appeal file contains documents bearing on the

resignation episode. In an attachment to an

appeal memo dated September 15, 1971, Mr.

Gratehouse recited the events which occurred

on May 25 and 26, 1971 as follows:

"On the afternoon of Tuesday, May 25th, Mr.

McGough called me at home and told me to report

the following morning about 11:30 in Diamond's

office. He further informed me that Ganley and

Diamond had reached an agreement between

themselves the nature of which involved a resolution

of the in-grade impasses. lle indicated it would

probable mean a resignation on my part and we

could discuss it further the next day.

Following this talk, I immediately called

Ganley to get more details and he advised me to

take whatever offer Diamond was making me....I

then called the Personnel Director's Office

and left messages for him to call me but they were

never answered.

On Wednesday, McGough, Diamond and myself

went to Ganley's office where his secretary

handed me a standard resignation form and my

in-grade action was given to Diamond. Before

signing, Diamond specified he wanted the effective

date to be 60 days off. McGough suggested the date

be August 1 and asked it be at least another 30

days after that. Diamond reluctantly agreed and

set the date at September 3, 1971. At this point,

we both signed simultaneously."

In his September 15, 1971 memorandum Mr.

Gratehouse made this contradictory statement:

„ . the record shows a strong element of

intimidation by management. It began first with

the notification from complainant's immediate

supervisor on May 24 (underscoring supplied)

to report the next day...."

Another document in the record is a letter

dated November 2, 1971 from Mr. E.C. Williams

Director, Technical Personnel Services Division, HUD

—— a ere

— —

— — a ee *ũã1õ

to the Chief, AEO, in response to Mr. Gratehouse's

appeal. At one point the Director stated:...When

a resignation of July 26 was suggested, Mr.

Gratehouse on May 25 proposed an August 1 date and

on May 26, he proposed that the effective date be

moved forward to September 1. The Administrative

Officer for the Deputy Under Secretary thereupon

Suggested September 4, the end of a pay period."

His letter does not state the source of this

information.

From Mr. McGough's demeanor at the hearing, from

the fact that his interest in the resignation

matter is less personal than that of the

appellant and Mr. Diamond, and from the fact that

he no longer is under Mr. Diamond's supervision

and not subject to the latter's’ mtrol, we find

it more reasonable to believe Mi. McGough's

testimony where it is in conflict with that of

Mr. Diamond and Mr. Gratehouse. With this in

mind, as well as from all of the evidence of

record, including that discussed above, we find

the facts in this case to be those set forth

below.

From the time he became Acting Director of the

Office of Economic Analysis in October 1970

until March 1971 Mr. Diamond became progressively

dissatisfied with Mr. Gratehouse's performance

and his habit of reporting late for work.

Consequently, on March 19, 1971 he issued a

notice to appellant informing him of several

areas in which his performance had been poor, and

notifying him that the within-grade salary increase

due him in June 1971 was being indefinitely

withheld. The notice was unequivocal, for it

neither stated nor implied that this decision was

subject to change if appellant's performance

improved. In fact, it ended by hinting that

appellant's performance was so poor that he

might be removed. Although Mr. Diamond testified

that he hoped appellant's performance would

improve, with the implication that as a result

his decision might change, his subsequent

actions belie this. What we do find is that Mr.

Diamond, who admittedly had some knowledge of

the Commission's regulations regarding the

withholding of within-grade increases, preferred

not to process the withholding action if that

could be avoided. We find it reasonable to

believe that he was aware that had he done so,

he would have had to advise Mr. Gratehouse that

the latter could request reconsideration of

his decision. Consequently, he took an active

part in an agreement to assist the appellant

in a search for other employment, and was

hopeful that appellant would leave before the

withholding action would have to be effected.

When he was asked for a recommendation for the

appellant for a position which might have resulted

in Mr. Gratehouse's promotion, he quite properly

felt that he had to advise the official making the

inquiry of his reservations concerning appellant's

performance. It turned out that by so doing,

however, he prevented the result he was hoping

forei.e., the appellant's leaving the Office of

Economic Analysis.

Mr. Gratehouse, on the other hand, was very

concerned about the effect the withholding

of his within-grade increase might have on his

future career, either as an Economist in Government

or in the legal field or politics once he completed

law school. Both parties had their respective

problems in mind when approximately a week before

the resignation was effected Mr. Diamond took

the initiative in again discussing the within-grade

increase denial with the appellant. At this meeting

the appellant admitted that he first brought up

the subject of resignation. The record is

inconclusive, however, as to whether the exchange“

of the within-grade increase approval for

appellant's resignation was specifically

discussed at this time. Mr. Diamond says it

was, and Mr. Gratehouse says it was not. Mr.

—— ONE ok V —

Ra 2 4 ˙ ·˙*

McGough gave two conflicting versions of what was

told to him by the parties after the meeting. '

That Mr. Diamond intended to obtain the appellant's

resignation after this meeting is clear, however,

for he and/or Mr. Orlebeke had a resignation form

typed up on May 20, 1971. Additionally, he had

Mr. McGough call the appellant while the latter

was on sick leave in order to have the appellant

come in to consummate what he described to Mr.

McGough as an agreement initiated by the appellant.

Mr. Gratehouse has continually insisted that he had

no knowledge of the exchange agreement until the

meeting on May 26, 1971. We find this contradicted

by Mr. McGough's testimony concerning the telephone

conversation which was held on May 24, 1971, not on

May 25, 1971 as stated by Mr. Diamond and the

appellant. Additionally, we find that the appellant

discussed the matter personally with Mr. Diamond

on May 25, 1971 as testified to by Mr. McGough.

Finally, appellant admitted asking Ms. DeSault

about the propriety of the exchange before it

took place. By his own recitation of events

this could not have occurred on May 26, 1971. We

find that it probable took place on May 25, 1971,

when he advised Mr. McGough he was going to the

personnel office. Our conclusions in this regard g

are also supported in the record by Mr. Grat ehouse s

reference to a telephone call from Mr. McGough

on May 24, 1971 in his September 15, 1971 memo

of appeal; and by Mr. William's reference to a

meeting on May 25, 1971 in his November 2, 1971

letter to the Commission. 5

on May 26, 1971 the exchange took place in Mr.

Ganley's outer office. The previously prepared

resignation form was signed by the appellant, after

the effective date was added, and Mr. Diamond

signed the form granting him his within-grade

salary increase. Here, again, however, the record

shows that Mr. Diamond took the lead in effecting

the transaction.

IV. CONCLUSION

From our analysis above, de find that Mr.

Gratehouse had at least from 24, 1971 until

May 26, 1971, a period of two days, ta decide what

action he should take with respect to the exchange

Appellant was well educated, was attending law.

school, and was a relatively high grade federal

employee. Mr. McGough testified that appellant

twice sought his advice on what course of action

to follow. Consequently, we find from these facts

that Mr. Gratehouse had a reasonable time in which

to make his choice.

Appellant sought a longer period of time than was

suggested by the agency before his resignation was

to be effected. The agency acceded to his request.

Consequently, we find that Mr. Gratehouse was

permitted to set the effective date of his

resignation.

On the other hand, Mr. Diamond pressed the appellant

to make a decision for he had Mr. McGough call him

while he was on sick leave to have him come in and

make it. Additionally, two agency employees upon

whom appellant relied, Mr. McGough and Mr. Ganley

both suggested that he accept Mr. Diamond's "offer".

We find from these facts that the agency did exert

some pressure on the appellant to accept the

exchange.

More importantly, we find that the agency had a

duty to give the appellant all of the information

to which he was reasonably entitled before he

made his election to resign. However, it did not

do this, since it did not advise him that he

could request reconsideration of Mr. Diamend's

decision to withhold his within-grade. increase; and

that, if he did so, the decision might be

overturned. This fact of itself might easily have

influenced Mr. Gratehouse to remain on the agency's

rolls and "fight" the withholding decision.

—ͤ—— ᷑⁊ͥQQ— 2 —

Consequently, we find that the agency deceived

Mr. Gratehouse by withholding this information from

him.

The gravest fault we find with the entire exchange

transaction, however, is that no matter who

suggested it, or what the appellant desired, the

agency had no authority to effect it. Section

5335, title 5, U.S. Code provides that an employee

may not be advanced to the next higher rate in a

grade unless his work is at an acceptable level

of competance. Mr. Diamond believed that Mr.

Gratehouse was not working at an acceptable level

of competence, and he had, therefore, a statutory

duty to take action to withhold the within-grade

increase. Instead, he improperly granted it in

order to induce the appellant's resignation.

We conclude, therefore, that Mr. Gratehouse was

induced and deceived into resigning, and that his

resignation was involuntary. Before the agency

could involuntarily remove him from its rolls, it

was required to follow the adverse action procedures

part 752-B of the Civil Service regulations in

effecting the action. These include, but are not

limited to, the following: 30 full days advance

written notice stating any aid all reasons

specifically and in detail for the proposed

action; an opportunity to reply to the proposal

notice both personally and in writing; and the

issuance of a written decision stating which of

the reasons in the proposal notice were found to be

sustained. We find, therefore, that the agency

failed to comply with the mandatory procedural

requirements of section 752-202 of the Civil Service

regulations in separating the appellant.

V. DECISION

We recommend that the agency cancel the September

4, 1971 personnel action separating the appellant

by resignation. Please furnish this office with

a copy of the personnel action form accomplishing

the recommended corrective action.

Unless this decision is further appealed within 15

calendar days of the day on which it is received,

it becomes the final decision of the U.S. Civil

Service Commission. Any further appeal of this

decision must be sent directly to:

U. S. Civil Service Commission

Appeals Review Board

Washington, D.C. 20415

Two copies of the letter of further appeal and

all representations which the Board should

consider beyond those now in the appeal file must

be submitted with the 15 calendar day time

limitation.

Attached is CSC Form 942 providing more detailed

information about further appeals to the Civil

Service Commission's Appeals Review Board.

Arthur J. Burgess Michael E. Sedmak

Assistant Appeals Officer Chief Appeals Officer

dale se

UNITED STATES CIYIL SERVICE COMMISSION

APPEALS REVIEW BOARD

Washington, D.C. 20415

DECISION

In the Matter of )

) TYPE CASE:

) INVOLUNTARY

DONALD R. GRATEHOUSE ) RESIGNATION

BEFORE: McDonald, Tillman

and Stanislav, Board

Members.

INTRODUCTION

This is an appeal from the October 6, 1975

decision of the Commission's Federal Employee

Appeals Authority (FEAA), Washington Field Office,

which determined that appellee's resignation

effective September 4, 1971, from the position

of Economist, GS-110-13, Step 4, $19,537 per annum,

with the Department of Housing and Urban Develop-

ment (HUD), Washington, D.C., was involuntary.

STATEMENT OF THE CASE

On May 26, 1971, agency officials reached a

compromise with appellee whereby he would resign

from his position effective September 4, 1971,

and the agency would grant him his within-grade

(hereinafter referred to as WGI), due in June 1971.

On September 1, 1971, appellee notified the agency

that it was his belief that his resignation was

the product of illicit actions, faulty contractual

grounds, and that the exchange of personnel actions

on May 26, 1971, was founded on bad faith. He

further requested that his resignation be returned.

The agency processed his resignation and thereby

separated appellee from the rolls, effective

September 4, 1971.

On September 15, 1971, the appellee appealed to

the Commission's Appeals Examining Office (now

Washington Field Office, FEAA) alleging that his

resignation, effective September 4, 1971, was a

product of coercion and constituted an involuntary

discharge and that he had requested the with-

drawal of his resignation on September 1, 1971,

which was denied by the agency.

In its decision of November 4, 1971, the Appeals

Examining Office (AEO) found that the agency did

not give appellee a valid reason for denying his

request for the withdrawal of his resignation and

as a result that appellee's resignation was

effectively withdrawn on September 2, 1971. It

therefore found that the agency's action in

separating appellee on September 4, 1971, was an

adverse action subject to the provisions of part

752 of the Civil Service regulations and accordingly

recommended that the agency restore the appellee to

his former position. That decision made no finding

on the appellee's allegation of coercion.

The agency appealed the AEO decision to the Board

of Appeals and Review (now Appeals Review Board).

In its decision dated May 5, 1972, the Board

reversed AEO, finding that the agency had shown a

valid reason for denying the appellee's request

for withdrawal of the resignation and also withdrew

AEO's recommendation for corrective action.

By decision decided March 19, 1975, No. 328-73, the

United States Court of Claims, remanded appellee's

case to the Commission for a hearing. The Board,

pursuant to the order of the Court, rescinded the

decision of AEO and remanded the case to that office

for a hearing to determine whether appellee's

resignation from the agency had been voluntary.

FIELD OFFICE DECISION #2

In complying with the instruction set forth in the

Board's letter of remand, the Field Office con-

ducted a hearing on June 13, 1975. In its decision

dated October 6, 1975, the Field Office found that

based on the evidence: (1) the resignation was

involuntary because appellee was induced into

resigning and the resignation had been obtained

under circumstances which were deceptive in nature,

and (2) it was therefore an adverse action which

had not been effected in accordance with the pro-

cedural requirements of subpart B, part 752 of the

Civil Service regulations. The Field Office

recommended that the agency cancel the September 4,

1971 personnel action separating the appellee by

resignation.

REPRESENTATIONS TO THE BOARD

On appeal to the Board, the agency contends that

it had no duty to advise the appellee of the

consequences of the proposal since the appellee

initiated it. It also contends that the supervisor's

action in not withholding the appellee's WGI was

part of a compromise, one that the appellee

desired, and was done in exchange for the appellee's

resignation. It further contends that since appellee

was the moving party in the compromise, who requested

the WGI be approved, appellee should not benefit

from the Field Office's finding that the agency

improperly granted the WGL.

Through his representative, the appellee submitted

his rebuttal to the agency's representations on

December 3, 1975.

ANALYSIS AND FINDINGS

With respect to appellee's rebuttal to the agency's

representations received by the Board on December 3,

1975, specifically, pages 4,5 and 6 of the brief,

concerning the Board's authority, the Board notes

that a recent reorganization of the Commission's

appellate system eliminated an administrative

right of appeal to the Appeals Review Board in all

cases where an action appealed was effected on or

after September 9, 1974. In those cases, as

reflected in the current regulations, a request

for reopening and reconsideration by the Board

must meet one of the three listed criteria as out-

lined in the bi ef on pages 4 and 5. However, in

cases involving an action effected prior to

September 9, 1974, an appeal is processed to

completion under the regulations existing at the

time the action was effected. Since appellee's

resignation was effected on September 4, 1971, the

Board has second appellate level authority in his

case as the regulations in effect on September 4,

1971, are applicable to the case.

The Civil Service Commission does not have

appellate authority to review a resignation which

is effected by an employee of his own volition.

The general principle is that a resignation is

voluntary if the employee understands the trans-

action, is free to choose, and is given a

reasonable time to make his choice. With this in

mind, the Board has reviewed the facts and the

representations submitted to the Board by the

parties to the appeal.

The voluntary or involuntary character of a

personnel action is determined not by the form of

the action, but by the circumstances which produced

it. In this case, the Field Office found that the

agency secured appellee's resignation by inducement

and deception and it was therefore an involuntary

action. The Board, after reviewing the evidence of

record, agrees with the Field Office concerning the

facts surrounding appellee's resignation but

disagrees with its conclusions.

The record shows that by letter dated March 19,

1971, appellee was informed that his performance

had been “less than satisfactory"; that he was

being advised that his WGI scheduled for June

1971 was being indefinitely withheld and that his

work performance was not of a quality to merit

continued employment. After discussions with

agency officials, it was agreed that appellee

would look for a job outside the Office of

Economic Analysis. From the record, the Board

finds that appellee was faced with what was, for

him, an apparently difficult choice - whether to

resign, attempt to seek employment elsewhere, or

remain in his position and face the apparent

denial of his WGI and possible removal action.

The crux of the Field Office finding that

appellee's resignation was induced and that the

agency deceived him into resigning, is based on

the agency's granting of appellee's WGI in ex-

change for his resignation, which the Field

Office found violated agency and Civil Service

regulations. The Field Office finding was also

based on the agency's failure to properly advise

the appellee of his rights before he made his

election to resign, specifically, his appeal

rights in connection with the denial of his WGI.

The evidence of record shows that all the tests of

a voluntary action have been shown. The facts

disclose that appellee was given the freedom of

choice and initiated the resignation action. The

appellee also had ample opportunity to weigh the

matter before resigning. The record shows that he

had from May 24, 1971 to May 26, 1971, a period of

two days to decide what action he should take with

respect to the exchange“. However, the record also

clearly shows that from March 19, 1971, the date

of the letter notifying appellee of his poor

performance and withholding of his WGI, to May 26,

1971, the date of the exchange transaction,

appellee was attempting to avoid the denial of his

WGI by seeking employment within the agency or

with another agency. He also discussed his pre-

dicament with several persons in the supervisory

chain. In addition, the Board notes the denial of

his WGI and possible removal noted in the letter

of March 19, 1971, was a prospective action and

cannot stand as a decision.

With this in mind, the Field Office found that

under Section 5335, Title 5, U. S. code, the agency

violated the Civil Service regulations and had ao

authority to effect the appellee's WGI in exchange

for appellee's resignation. However, the record

shows that the granting of the WGI followed

rather than preceeded the discussions and the

decision to resign. Moreover, because the March 19,

1971 letter concerning the denial of the WGI was a

prospective action and not a decision, there was

no requirement that the agency comply with Section

5335, Title 5, U.S. Code, or furnish the appellee

his rights, if he wanted to contest the possible

denial. Indeed, the reason there was no decision

to deny the WGI was because the appellee sought to

avoid even an initial denial by his attempts to

seek employment with another agency c within his

agency, and with the agreement of his agency,

engineered his resignation to be effective months

later. Based on the foregoing, the Board does not

agree with the Field Office that the facts disclose

that appellee was induced and/or deceived into

resigning. He clearly knew what he was doing and

understood the results and was the moving party.

The agency simply acquiesced. The Board finds hat

appellee initiated the resignation and got what he

bargained for in exchange - - a clear record, his

WGI, no action with respect to removal for cause,

and, continuation on the agency rolls for three

months while he searched for other employment. The

agency did not deceive nor default.

With regard to the Field Office finding that Mr.

Arnold H. Diamond had a statutory duty to take

action to withhold appellee's WGI, the Board finds

no basis for such a determination. That issue is

not fo: adjudication here. Mr. Diamond had the

authority to and did sign ( and appellee did

benefit from ) the required certification

resulting in appellee's WGI being granted. Even

assuming that the certification was improper, it

would not cancel a valid resignation. Deceptive

coercion could only follow from a subsequent

attempt to void the certification which resulted

in the WGI being granted.

In view of the above, the Board finds that the

appellee voluntarily resigned, free of any action

on the part of the agency to secure the

resignation by inducement or deception.

DECISION

The Appeals Review Boaiu hereby reverses the

decision of the Washington Field Office decided

on October 6, 1975.

As provided by the Civil Service regulations,

the decision of the Board is final and there is no

further right of administrative appeal.

For the Board:

HERMAN D. STAIMAN

Chairman

March 18, 1976

IN THE UNITED STATES COURT OF CLAIMS

DONALD R. GRATEHOUSE

THE UNITED STATES

Ben Paul Noble, attorney of record,for

Plaintiff, Noble and Larsen, of counsel.

Frank H. Clabaugh, with whom as Assistant

Attorney General Rex E. Lee, for Defendant.

Before COWEN, Chief Judge, NICHOLS and BENNETT,

Judges.

This case is before the court on plaintiff's

motion and defendant's cross-motion for summary

judgment. It was previously the subject of an

opinion by ti > court. Gratehouse v. United States,

206 Ct. C1. 288, 512 F.2d 1104 (1975). That opinion

remanded the case to the Civil Service Commission

(the Commission) for a hearing on plaintiff's

charge that his resignation was induced by

defendant's coercion and deceit. Plaintiff, who was

employed prior to September 4, 1971, as an

Economist, GS-13, Step 4, in the Department of

Housing and Urban Development (HUD), resigned his

* 6

position effective as of that date. He alleges

that he did so through the deceit and coercion

of HUD management, that this made his resignation

involuntary and, in effect, an adverse action,

and that he was denied the procedural protections

afforded to those subject to adverse actions. He

further says that he was granted a within-grade

increase (WGI) in consideration of his resignation

but such an exchange was contrary to law, thus

voiding his resignation. He seeks back pay and

reinstatement to his position.

On October 6, 1975, the Federal Employee

Appeals Authority (FEAA) of the Commission,

pursuant to the order of remand and following a

hearing, entered a decision in plaintiff's favor.

On March 18, 1976, the Appeals Review Board (ARB)

of the Commission, reversed the FEAA decision,

concluding that plaintiff was not entitled to recover.

The issue now before the court on the pending

motions is whether the ARB decision is supportable

by substantial evidence and mrrect as a matter of

law. Boyle v. United States, 207 Ct. Cl. 27, 515

F.2d 1397 (1975).

The parties are agreed on the facts as found

by FEAA and adopted by the ARB, which disagreed

only as to the conclusions to be drawn from those

facts. It is clear from these facts that defendant

regarded plaintiff as less than a satisfactory

employee and proposed to withhold a within-grade

increase from him. He was so advised. Concerned

that this would be a damaging mark on his personnel

record, and in order to forestall the action,

plaintiff submitted his resignation in writing under

date of May 20, 1971, effective September 4, 1971,

in exchange for simultaneous approval of « WGI for

plaintiff. The post-dating of the resignation by

plaintiff was to give him time to seek other

employment.

On September 1, 1971, plaintiff requested

return of his resignation on the grounds of

defendant's alleged “illicit actions" and “bad

faith". The request was not granted, but plaintiff

was offered a 60-day temporary appointment in order

to give him still more time to find another

position. Plaintiff rejected the offer and appealed

his separation unsuccessfully through civil service

procedures. Additional historical details are out-

lined in our 1975 opinion. We were concerned at

that time that the Commission had not evaluated

plaintiff's claim of coercion and entitlement to

adverse action procedures, hence the remand order

which has now been complied with.

The real thrust of plaintiff's claim is that

he was tricked into signing his resignation in

order to get his step increase and that this was

illegal. It certainly would be illegal, and his

resignation void, if he was so deceived, but the

evidence 1s the contrary. It is absolutely clear

from the findings and opinions of FEAA and ARB that

the suggestion that plaintiff resign was plaintiff's

own idea. The ARB finding sums it up as follows:

The Board finds that appellee

initiated the resignation and got what he

bargained for in exchange -- a clear record,

his WGI, no action with respect to removal

for cause, and, continuation on the agency's

rolls for three months while he searched for

other employment. The agency did not deceive

nor default.

Whether a resignation is voluntary or

involuntary is determined, not by the form of the

action or terminology used, but rather by the true

substance of the action, and by the circumstances

that produced it. Patterson v. United States, 193

Ct. Cl. 750, 436 F. 2d 438 (1971); Federal Personnel

Manual Supp. 752-1, Subch. S1-2. Here plaintiff had

freedom of choice and ample time within which to

decide what action to take with respect to

— 2

Ur 3

resignation in exchange for the WGI, which ex-

change he initiated and understood. Plaintiff set

the effective date of his resignation. In light of

these facts, this transaction did not amount to an

adverse action, so no occasion arose requiring

provision of applicable procedural rights. Christie

v. United States, 207 Ct. Cl. 333, 518 F. 2d 584

(1975); 5 C.F.R.§§752.201 et seq. (1971). HUD,

moreover, committed no legal error in failing to

advise plaintiff of his right to seek reconsideration

of its judgment that his work was not of an

acceptable level of competence, entailing the pro-

posed denial of his WGI. See 5 U.S.C. §5335 (1970);

5 C.F.R.§ 531.407 (1971). Such notice of appeal

rights need only be given an employee at some time

before the end of his “waiting period," the amount

of time that must lapse between the granting of

WGI's. 5 C. F. R. § 531.407(c)(3) (1971). Plaintiff

had submitted his resignation well before the

expiration of his waiting period, presenting HUD

with no need or opportunity to give him notice.

ARB dismissed the charge that the approval of

plaintiff's WGI by supervisors who thought that he

did not merit it was illegal and invalidated the

resignation that plaintiff submitted in exchange

saying that even if the WGI should not have been

granted as a part of the compromise package to

obtain plaintiff's resignation, nevertheless it

could not void an otherwise valid resignation. The

validity of plaintiff's resignation depends upon

its voluntariness, and again, that is determined

from the circumstances surrounding it, not by

mere forms and technicalities. Plaintiff

initiated and controlled the resignation process,

and received in exchange exactly what he bargained

for. Plaintiff is estopped from challenging the

validity of his resignation on this ground, having

accepted the benefits of his own suggestion that

he resign, which was agreed to and relied upon by

defendant. Peters v United States, 208 Ct. C1. 373,

534 F. 2d 232 (1975); Steueur y United States, 207

Ct. Cl. 282 (1975); Weir y. United States, 200 Ct.

Cl. 501, 511, 474 F. 2d 617, 622, cert. denied,

414 U.S. 1066 (1973). The ARB decision is

sustained.

IT IS THEREFORE ORDERED that plaintiff's

motion for summary judgment be and it is denied.

Defendant's cross-motion for summary judgment is

granted. The Petition is dismissed.

BY THE COURT

FEB 4 1977

Wilson Cowen

Chief Judge

Te he 5

IN THE UNITED STATES COURT OF CLAIMS

No. 328-73

DONALD R. GRATEHOUSE

THE UNITED STATES

Before NICHOLS, Judge, Presiding, COWEN, Senior

Judge, and BENNETT, Judge.

ORDER

This case comes before the court on plaintiff's

motion, filed March 21, 1977, for rehearing, or,

in the alternative, for rehearing en banc, pursuant

to Rules 7(d) and 151(b). Upon consideration

thereof, without oral argument, by the six active

Judges of the court as to the suggestion for

rehearing en banc under Rule 7(d), which

suggestion is denied, and further having been so

considered by the panel listed above as to the

motion for rehearing under Rule 151(b),

IT IS ORDERED that plaintiff's said motion for

rehearing, filed March 21, 1977, be and the same

is denied. BY THE COUR!

APR 29 1977 Philip Nichols, Jr.

Judge, presiding

SUPREME COURT OF THE UNITED STATES

No 7 A-97

DONALD R. GRATEHOUSE

Petitioner,

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon consideration of the application of

Petitioner,

IT IS ORDERED that the time for filing a petition

for writ of certiorari in the above-entitled cause

be, and the same is hereby, extended to and including

August 22 .

s/William J. Br Jr.

Associate Justice of the

Supreme Court of the

United States

Dated this 29

day of July » 19 22

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