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12/28/65 Glesby L. Dabney, v. Orville Freeman

December 28, 1965

GLESBY L. DABNEY, APPELLANT

v.

ORVILLE FREEMAN, SECRETARY OF AGRICULTURE OF THE UNITED STATES OF AMERICA, ET AL., APPELLEES 1965.CDC.255



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petition for Rehearing En Banc Denied February 24, 1966.

APPELLATE PANEL:

Fahy, McGowan and Tamm, Circuit Judges. Fahy, Circuit Judge (dissenting).

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN

McGOWAN, Circuit Judge:

The complaint in the District Court in this case sought a judgment compelling the Secretary of Agriculture to restore appellant to a clerk-typist position formerly held by her in the Farmers Home Administration. By an order reciting the consent of the parties and bearing the signatures of counsel to that end, the District Court remanded the case to the Civil Service Commission "with directions to conduct further administrative proceedings, including an oral hearing, relating to the manner of [appellant's] separation from Government service." Such a hearing was held and resulted in a determination that appellant's separation from her federal employment "was the result of her voluntary resignation of December 5, 1961 and not an adverse action subject to review, on appeal, by the Civil Service Commission." The District Court, with the Civil Service Commission record now before it and after hearing the parties in both brief and oral argument, granted appellees' *fn1 motion for summary judgment. We affirm this action. I

It was appellant's essential contention throughout that her resignation of December 5, 1961 (which she did not deny was knowingly signed and delivered) was null and void because coerced. Her story was that it was obtained from her by a Department of Agriculture investigator sent from Washington to inquire into rumors of misconduct in the New Jersey office in which she worked; and that the conditions under which, and the methods by which, she was induced by this investigator to submit her resignation rendered it wholly involuntary and, accordingly, without legal effect. Within a few weeks after her resignation took effect by its terms on December 9, 1961, appellant, through counsel, represented to the Regional Director of the Civil Service Commission in New York that her resignation had been coerced and requested a hearing. A reply was received from this officer to the effect that, since resignations are not adverse actions taken by the employing authorities, they may not be made the subject of an appeal to the Commission. Appellant then went for relief to the District Court but, as has been seen, both her counsel and the Government consented that the matter be sent to the Commission for hearing.

Once there, the case was docketed under the caption of "Appeal of Glesby L. Dabney Under Part 22, Subpart B, of the Civil Service Regulations"; and the issue to be explored and decided was described by the Appeals Examining Office of the Commission as "whether the appellant's separation was by resignation or whether, in the alternative, the separation was a discharge subject to the procedural requirements of the laws and regulations administered by the Commission." In formulating the issue in such manner, it was said that "separation resulting from resignation has been held to be an adverse action the same as a discharge where it is shown that the resignation was coerced."

This approach is, of course, directly at variance with the response made to appellant by the Regional Director in New York. We are of the view that it is the correct one. The Commission has been entrusted by Congress with the function of hearing and deciding appeals from assertedly wrongful separations from federal service. It seems to us that a separation by reason of a coerced resignation is, in substance, a discharge effected by adverse action of the employing agency. *fn2 If and when the Commission's relieving authority is invoked by non-frivolous allegations of coercion, the Commission should entertain the appeal and hear and determine the allegations. If they are sustained, the Commission presumably must find that the particular separation has not been effected in the manner required by law and must reinstate the employment, subject to the employer's continuing discretion to initiate discharge proceedings in the prescribed manner. If they are not sustained, the appeal is to be dismissed as outside the limits of the Commission's jurisdiction. In the latter event, review of the Commission's decision may be sought in the District Court, as in other discharge cases. But, as is true of such other cases, which are heard on the record made before the Commission, the standard of judicial review is that of whether there is evidence of substance in that record which supports the Commission's view of the matter. *fn3

On this record we are not, of course, squarely confronted with the question of whether an initial rebuff at the Commission level, of the kind suffered by appellant here at the hands of the New York Regional Director, entitled appellant to stay in the District Court at all costs. The consent order blunts this issue. We surmise, however, that the Government's consent may have reflected a realistic recognition of the fact that the Regional Director had denied appellant an appeal to which she was entitled. There can, we think, be little doubt that Congress intended personnel grievances of this kind to be heard and determined in the first instance by the Commission and not by the District Court. The latter has enough to do without displacing the Civil Service Commission in this area, at least without a clearer mandate from Congress than it now has.

In support of her contention that she is entitled to a trial of the factual issues in the District Court, appellant's reliance is upon Paroczay v. Hodges, 111 U.S.App.D.C. 362, 297 F.2d 439 (1961). In that case, an employee claiming involuntariness in respect of his resignation was first turned away by the Commission for the same reason given by the New York Regional Director here. The District Court, from whom relief was next sought, undertook to decide the merits of the voluntariness issue on affidavits submitted in connection with the Government's motion for summary judgment. We held only that there were disputed matters of fact which made summary judgment inappropriate. No contention was made by anyone at any stage that perhaps the Commission had erred in declining to entertain the appeal in the first instance, and that the District Court's true function under the circumstances was to correct that error. *fn4 Compare Competello v. Jones, 105 U.S.App.D.C. 412, 267 F.2d 689 (1959), where the Commission entertained an appeal where a resignation existed, and dismissed the appeal after a hearing in which it found the resignation to be voluntary. We sustained the District Court's grant of summary judgment in a suit to review the Commission's action.

A proper observance of the Congressional allocation of functions and related resources may not be safely left to a coincidence of desire by the parties to have their controversy tried in one forum rather than another. Here, in our view, the consent order seems to us to have been wholly consonant with, if indeed not dictated by, a due respect for that allocation; and we think the District Court acted wisely in entering it. II

The Analysis and Findings of the Appeals Examining Office describe in detail the nature of the evidence which was forthcoming in the Commission hearing. *fn5 Appellant was the principal witness in her own behalf; and she told a story calculated to put the departmental investigator in a bad light in terms of an aggressive and ruthless application of highpressure methods to secure the resignation. The investigator's account of what happened was diametrically different. Appellant's version of the facts was supported by the testimony of her supervisor, who was also present during the interview with the investigator. The nature of the rumored misconduct was such, however, as to impart to the supervisor's testimony an interest very similar to that of appellant's. And, on the question of coercion, the supervisor testified that he was present throughout and repeatedly counseled appellant not to resign. The ultimate finding was that "there is no preponderance of credible evidence to show that [appellant's] resignation was coerced or that her separation was, in fact, a discharge under the terms of Part 22B of the regulations." This finding was upheld upon a further appeal to the Commission, acting through its Board of Appeals and Review.

The issue of the voluntariness of appellant's resignation turned largely, if not entirely, upon which account of the facts was to be accepted. The investigator denied all of appellant's allegations of coercive acts, including appellant's claim that she was told that she must either resign immediately or be discharged, and that she was denied the opportunity requested by her to take some time in which to ponder, and to consult with others about, her resignation. This last is important, because, in Paroczay, Judge Youngdahl took our opinion there to mean that this circumstance, if undisputed or found to exist from conflicting evidence, constitutes coercion as a matter of law. He thought that the Government's own testimony in that case established this fact beyond dispute; and he held for the employee accordingly. The investigator's testimony here, by contrast, was that the purpose to resign was conceived by appellant alone, unaided by either suggestion or pressure from him, and that she apparently ...


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