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October 11, 1977

THE UNITED STATES DONALD C. ALEXANDER, Commissioner of Internal Revenue ROBERT E. HAMPTON, Chairman, JAYNE B. SPAIN, and L. J. ANDOLSEK, Commissioners of United States Civil Service Commission

The opinion of the court was delivered by: LUONGO

 On May 1, 1970, plaintiff was removed from her position as an Internal Revenue Service (IRS) tax examiner. Extensive administrative and judicial review of that decision has taken place in the seven years since the discharge. In this case, plaintiff seeks a writ of mandamus (28 U.S.C. § 1361) compelling defendants to reinstate her to the position with IRS. The case is before me on cross-motions for summary judgment under Federal Rule 56.


 Plaintiff had been employed with IRS since 1966 and had become a full-time employee the following year. See, e.g., Administrative Record [hereinafter cited as A.R.], pt. 1, at 243. Proceedings for her discharge were instituted on January 22, 1970, when the Director of IRS's Mid-Atlantic Service Center sent her a "Notice of Proposed Adverse Action" which informed her that she might be disciplined or discharged. See id. at 313-17. The notice set forth three "charges" against plaintiff, each of which was supported by various specifications in support of the charge. The first charge, supported by fourteen specifications, stated that plaintiff had violated Rules of Conduct for Internal Revenue Service Employees § 1942.52 in that she disrupted official business and caused dissension and discord in her relations with supervisors and fellow employees. Id. at 313-16. The second charge, which alleged violation of the same section of the IRS Rules of Conduct and was supported by two specifications, asserted that plaintiff "did not cooperate fully with official requests of properly constituted authority" in that she would not, as ordered, arrange to undergo a physical and psychiatric examination either by the Public Health Service or a doctor of her own choice. Id. at 316-17. The third charge, supported by one specification, was similar to the second, asserting that plaintiff was guilty of insubordinate conduct and thus violated § 1942.52 by refusing to comply with a direct order to report to the Public Health Service on December 19, 1969 for a psychiatric evaluation to determine fitness for duty. Id. at 317. As a Civil Service Commission hearing examiner later explained,

"The charges appear to be progressive in that the specifications used to support Charge I were of such a nature to apparently cause the agency to decide that a physical examination and psychiatric evaluation were warranted. When the appellant resisted this action, her failure to cooperate led to Charge II. Finally, when the agency did order the appellant for a psychiatric evaluation and she refused, Charge III, insubordinate conduct, arose."
Id. at 137.

 Plaintiff responded to the charges on February 27, 1970, in a meeting with an IRS representative. See A.R., pt. 1, at 174-200. On April 27, 1970, the Director of the IRS Mid-Atlantic Service Center rendered a decision sustaining the charges and specifications in the January 22 notice, explaining that plaintiff's response to the charges was "not considered acceptable." Id. at 170. Since the charges were sustained, the director discharged plaintiff from her employment effective May 1, 1970. Id.

 Rather than appeal to the IRS Regional Commissioner, plaintiff, on May 11, 1970, exercised her right to appeal directly to the Director of the Philadelphia Region of the United States Civil Service Commission (CSC). A.R., pt. 1, at 165. A hearing was held before a CSC hearing examiner at the IRS Center in Philadelphia on December 15-16, 1970. See A.R., pt. 2. On March 25, 1971, a regional appeals examiner, acting on behalf of the Philadelphia Regional Director of the CSC, rendered a decision upholding the IRS' dismissal of plaintiff. A.R., pt. 1, at 131-42.

 The appeals examiner concluded that only three of the fourteen specifications in the January 22 notice supported the first charge against plaintiff. He ruled, however, that each of these involved incidents in which plaintiff, through her conduct or remarks, caused dissension, discord, or disruption and that the allegations in the first charge therefore should be sustained on the basis of these three specifications. Id. at 136-39.

 As to the second charge, the appeals examiner found that under ch. 751, subch. 2, para. 4(b)(3)(b)-(c) of the Federal Personnel Manual, the IRS had the authority to direct plaintiff to have a fitness-for-duty examination and plaintiff did not have discretion to ignore that directive. He also found that "the agency had cause to question [plaintiff's] fitness for continued duty" (id. at 140) and its fitness examination directive therefore was not arbitrary or unreasonable. The record showed that plaintiff did not schedule the examination because she did not feel it was warranted, and the second charge thus was sustained because plaintiff "chose not to cooperate with properly constituted authority on this matter." Id. at 139-40.

 As to the third charge that plaintiff was insubordinate in failing to report for a psychiatric evaluation by the Public Health Service on December 19, 1969 although she had been ordered to do so, the appeals examiner found "some merit" (id. at 141) to plaintiff's contention that she had reason to believe the order had been rescinded. He concluded, however, that no rescission of the order had actually occurred and plaintiff therefore was insubordinate in failing to comply. He thus sustained the third charge. Id. at 140-41.

 The appeals examiner's "ultimate finding" was "that the agency action was taken for such cause as will promote the efficiency of the service within the meaning of that language in the Civil Service Regulations." Id. at 142. The removal was "found to be warranted" and no change in that action was recommended. Id.

 Having exhausted her administrative remedies, on October 26, 1972, plaintiff filed an action in the United States Court of Claims, alleging that she "was removed on charges as to which there was no substantial evidence" and that the removal "was arbitrary and capricious." Petition para. 2, Miller v. United States, No. 405-72 (Ct. Cl.). On March 14, 1975, a panel of the Court of Claims issued an order granting the United States' motion for summary judgment and denying plaintiff's cross-motion for summary judgment. The Court stated:

"[It] is concluded that there was more than substantial evidence to support charges II and III, and these charges were sufficient to warrant plaintiff's removal as the Civil Service Commission held. Nor was the action on those charges arbitrary or capricious. No procedural violations are alleged or shown. It is therefore unnecessary to consider whether Charge I, as upheld, was adequately supported by substantial evidence or whether it would be enough, standing by itself, to sustain the removal."
Anne E. Miller, 206 Ct. Cl. 870, 871 (1975).

 On July 1, 1975, plaintiff filed a motion for rehearing. Included in that motion was the text of a psychiatric report by Dr. Stuart Wolfe which was based on a June 20, 1975 examination of plaintiff. The report concluded:

"I see no evidence at this time of a psychiatric disorder that would disqualify Mrs. Miller from performing the duties of her job. In reconstructing the situation at the time of her dismissal, it seems that there is no clear evidence that she had an emotional disorder sufficient to render her unfit for duty."
Motion for Rehearing at 2, Miller v. United States, supra.

 The motion also referred to a June 9, 1975 examination of plaintiff by Dr. James J. Ryan, the report of which had not yet been received. On the basis of these reports, plaintiff contended that, if she had submitted to a psychiatric examination as demanded by IRS, she would have "been found fit for duty [and] her removal would have been cancelled by the Internal Revenue Service at that time." Id. at 3. The Court of Claims denied the motion for rehearing on October 3, 1975. Miller v. United States, No. 405-72 (Ct. Cl., Oct. 3, 1975) (unpublished order).

 On April 7, 1976, plaintiff filed this mandamus action against the United States, Commissioner of Internal Revenue Donald C. Alexander, and the members of the CSC -- Chairman Robert E. Hampton, Jayne B. Spain, and L. J. Andolsek. She contended that she "was removed on charges which constituted fraud" (Complaint para. 1). The complaint stated:

"4. Plaintiff was fraudulently charged by defendant with psychiatric problems and fraudulently directed to submit ...

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