Sokoloff v. United States

4 Cl. Ct. 140, 1983 U.S. Claims LEXIS 1542
CourtUnited States Court of Claims
DecidedDecember 14, 1983
DocketNo. 596-82C
StatusPublished
Cited by4 cases

This text of 4 Cl. Ct. 140 (Sokoloff v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sokoloff v. United States, 4 Cl. Ct. 140, 1983 U.S. Claims LEXIS 1542 (cc 1983).

Opinion

OPINION

LYDON, Judge:

In this civilian pay case, plaintiff challenges his removal, for cause, from federal employment by the Internal Revenue Service (IRS). This removal action was affirmed by the Federal Employee Appeals Authority, United States Civil Service Commission (FEAA). The Appeals Review Board, Civil Service Commission (ARB) (now Office of Appeals, Merit Systems Protection Board (MSPB)) subsequently denied plaintiff’s request to reopen and reconsider the FEAA decision. Thereafter, plaintiff filed suit in the United States District Court for the Western District of Missouri, which suit was transferred to this court, at plaintiff’s request, on November 19, 1982. This suit is not governed by the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 since plaintiff’s employment was terminated prior to the effective date of that act. See Gaskins v. United States Postal Service, 221 Ct.Cl. 918, 919-20 (1979). Both parties have moved for summary judgment, each asserting there are no genuine issues of material fact in dispute. Upon consideration of the submissions of the parties, and without oral argument, it is concluded that defendant’s motion for summary judgment should be granted.

I.

On January 31, 1977, plaintiff’s duty station was the Office of District Director of the Internal Revenue Service (St. Louis, Missouri), Audit Division, Examination Branch 2, Group 7, Kansas City, Missouri. Plaintiff was employed as a Tax Auditor, GS-9. At that time, plaintiff had almost 12 years of federal service. He had received a career conditional appointment as a Social Insurance Claims Examiner, GS-5, on May 9, 1965. On July 5, 1966, he had received a career conditional appointment as a Tax Technician, GS-7, and had completed his probationary period in this position on July 4,1967. Plaintiff was promoted to the position of Tax Technician, GS-9, on July 16, 1967.

[142]*142On January 31, 1977, plaintiff received a notice of proposed adverse action from the Chief of the Audit Division informing him of his proposed removal from his position based on unsatisfactory work performance. This notice set forth three reasons for this proposed action, each of which was supported by specifications. The January 31st letter also notified plaintiff of all his procedural rights.

Plaintiff submitted a written reply to this proposed adverse action on April 8, 1977, after having provided an oral reply on March 4,1977. On April 26,1977, the Chief of the Audit Division, “after careful consideration of the evidence file and the efforts of the Group Manager to improve Mr. Sokoloff’s performance,” recommended to the District Director that plaintiff be removed for the reasons stated in the January 31, 1977 letter of proposed adverse action. On April 28, 1977, the District Director informed plaintiff of his decision to remove him. In this letter, the District Director set forth, and discussed, the reasons for this action.

Plaintiff appealed the removal decision of April 28,1977, to the St. Louis FEAA office on May 4, 1977. At plaintiff’s request, a hearing was held before an Appeals Officer (Hearing Examiner) on September 6, 1977. At this hearing, the agency withdrew one of the three reasons it had advanced in its January 31, 1977, notice of proposed adverse action.

By decision dated December 19, 1977, the FEAA, in sustaining plaintiff's removal, found, inter alia, that no procedural error tainted the removal, that the two remaining reasons and the underlying specifications were fully supported by the evidence, and that the agency was not required to file for disability retirement on plaintiff’s behalf since, as plaintiff had acknowledged, plaintiff’s ill-health was not responsible for his work performance deficiencies.

In its December 19th decision the FEAA informed plaintiff, in pertinent part as follows: “The decision of the Appeals Officer is final and there is no further right of appeal. This means that the decision of the Appeals Officer marks the exhaustion of those administrative remedies which must precede resort to the courts.” This decision also advised plaintiff that Civil Service Commission Regulations did permit the ARB, in its discretion, to reopen and reconsider any previous decision of an Appeals Officer on the ground of (1) new and material evidence; (2) erroneous interpretation of law or regulation or misapplication of established policy; or (3) precedential nature of previous decision.

Thereafter, plaintiff filed a request with the ARB to reopen and review the FEAA decision upholding plaintiff’s removal. In this request, plaintiff contended that the Appeals Officer erroneously interpreted certain regulations relating to (a) prohibition of inference of guilt from plaintiff’s lack of rebuttal to the charges against him; (b) oral reply; and (c) progressive discipline. On October 25, 1979, the Office of Appeals denied plaintiff’s request on the ground it did not meet any of the regulatory criteria for reopening the previous decision of an Appeals Officer as set forth in 5 U.S.C.R. §§ 772.310 and 772.312 (1978).1

[143]*143II.

Plaintiff advances two grounds in support of his contention that his removal was procedurally defective. First, plaintiff argues that the letter of charges lacked the required specificity. Second, plaintiff maintains that the agency failed in its obligation and duty to file a disability retirement application on behalf of plaintiff before proceeding further with the removal action.

The role of this court in reviewing administrative actions in civilian pay cases is a limited one. Staskus v. United States, 1 Cl.Ct. 633, 636 (1983), aff’d 723 F.2d 68 (C.A.Fed.1983). The court’s role is to determine, upon review of the administrative record, whether the agency action questioned violates applicable statutes or regulations, or is demonstrably in bad faith, lacking in substantial evidence, or arbitrary and capricious. Wathen v. United States, 208 Ct.Cl. 342, 351-52, 527 F.2d 1191, 1197 (1975), cert. denied 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976). This role is further tempered by the established proposition that a presumption exists that administrative actions are taken and processed in good faith. Staskus v. United States, supra, 1 Cl.Ct. at 636. See also Wathen v. United States, supra, 208 Ct.Cl. at 351, 527 F.2d at 1197. Given this standard of review, the decision by the FEAA that plaintiff’s removal was procedurally proper, in accord with all applicable regulations, and supported by substantial evidence must be sustained.

A. Letter of Charges — Specificity

At the time of plaintiff’s removal in 1977, an individual in the competitive service whose removal was sought was entitled, inter alia, to reasons in writing and to notice of the action sought and of any charges preferred against him. 5 U.S.C. § 7501 (1976). Under regulations in effect at the time of plaintiff’s removal, it was provided in pertinent part:

[A]n employee against whom adverse action is sought is entitled to at least 30 full days’ advance written notice stating any and all reasons, specifically and in detail, for the proposed action. [5 C.F.R.

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Bluebook (online)
4 Cl. Ct. 140, 1983 U.S. Claims LEXIS 1542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sokoloff-v-united-states-cc-1983.