Taylor v. United States

591 F.2d 688, 219 Ct. Cl. 86, 1979 U.S. Ct. Cl. LEXIS 25
CourtUnited States Court of Claims
DecidedJanuary 24, 1979
DocketNo. 349-77
StatusPublished
Cited by50 cases

This text of 591 F.2d 688 (Taylor 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
Taylor v. United States, 591 F.2d 688, 219 Ct. Cl. 86, 1979 U.S. Ct. Cl. LEXIS 25 (cc 1979).

Opinion

COWEN, Senior Judge,

delivered the opinion of the court:

The parties’ cross-motions for summary judgment in this civilian pay case raise an issue not previously decided by this court. The question for decision is whether a classified Civil Service employee, who retires after his removal from the service but while his appeal from such adverse action is pending, is entitled to back pay and reinstatement if the removal action is cancelled by an administrative appellate decision. Since we find that plaintiffs retirement was voluntary, we hold that he is not entitled to back pay or other employment rights.

Plaintiff was a permanently classified Civil Service employee who held a GS-14 position as a mathematician in the Applied Mathematics Division, Ballistic Research Laboratories, United States Army Research and Development Center, Aberdeen Proving Ground, Maryland. On September 17,1971, he was notified by a Letter of Proposed Adverse Action that the agency proposed to separate him from the service (1) for failure to produce any tangible results of his research since assignment to the Applied Mathematics Division in July 1968; (2) for unwillingness to work on assigned duties in a team effort, and (3) for failure to comply with written instructions.

Plaintiff submitted a written reply to the charges, but by letter of January 10, 1972, he was advised that the charges were sustained and that his removal would be effective January 14, 1972.

On February 11, 1972, plaintiff appealed his removal by the adverse action to the agency’s appellate level. On [89]*89February 28, 1972, while his appeal was pending, he submitted a written application for a voluntary retirement. At that time plaintiff was past 62 years of age and had more than 22 years of creditable service with the Federal government. He was therefore entitled to retire under the provisions of the Civil Service Act (5 U.S.C. 8331, et seq.). The application was approved by the Civil Service Commission and was made effective retroactively to January 15, 1972, the day following the date of his removal from the Federal service.

The United States Army Civilian Appellate Review Office (USACARO) issued findings and recommendations on November 15, 1972, concerning plaintiffs removal. It found that the first charge was not supported by the evidence and that charges 2 and 3 lacked specificity and detail and were procedurally defective. It was recommended that the action to remove plaintiff be cancelled. On September 29, 1973, Headquarters, United States Army Materiel Command (HQUSAMC), Alexandria, Virginia, issued a final agency appellate decision, which affirmed the findings of the USACARO examiner and ordered that the removal action be cancelled and purged from plaintiffs official personnel folder. However, the decision stated that plaintiff would not be entitled to back pay because he had voluntarily retired effective January 15, 1972, the day following the date of his removal.

By letters dated November 15, 1973 and July 29, 1974, plaintiff wrote the Army Materiel Command, requesting that he be reinstated with back pay. He contended that his retirement was involuntary and forced upon him by the duress of an unwarranted removal action. The Army, by letters of January 17 and October 11, 1974, disagreed with plaintiff, but informed him of his right to appeal to the Philadelphia Office of the Federal Employee Appeals Authority, Civil Service Commission. Plaintiff appealed to that office, which by decision of September 23, 1975, sustained his appeal and recommended that his separation by retirement be cancelled and that he be reinstated to his former position retroactively to the date of his separation. The opinion stated that "the appellant had a choice between removal and retirement benefits only because of the duress of the unwarranted adverse action initiated [90]*90against him by the agency.” On October 8, 1975, the Army appealed the decision of the Philadelphia Office to the Appeals Review Board of the Civil Service Commission. On November 19, 1976, that Board reversed the action of the Philadelphia Office, holding that plaintiffs retirement was a voluntary action and therefore was not a matter within the purview of the Commission’s appellate jurisdiction.

I.

In a recent decision involving the right of a retired employee to reinstatement and back pay, this court declared: "The focus of our consideration must be the voluntariness of plaintiffs retirement in June 1972. If that choice was freely made, he had no right after that event to further employment by the Federal Government * * *.” Roskos v. United States, 213 Ct. Cl. 34, 37, 549 F.2d 1386, 1388 (1977).

Here, as in that case, the controlling issue is whether plaintiffs retirement was voluntary. The clear import of the statutes, regulations and decisional law is that a voluntary retirement, like a resignation, results in the employee’s complete separation from the Federal service — a separation which, after it becomes effective, may not thereafter be revoked or withdrawn at his option. McGucken v. United States, 187 Ct. Cl. 284, 407 F.2d 1349, cert. denied, 396 U.S. 894 (1969); Rosenblatt v. United States, 204 Ct. Cl. 910, cert. denied, 419 U.S. 1032 (1974).

In Federal Personnel Manual (FPM) Supp. 752-1, sub-paragraph Sl-2, the Civil Service Commission has set forth the following guidelines for determining whether a separation from the service is voluntary or involuntary:

Sl-2. VOLUNTARY AND INVOLUNTARY SEPARATIONS AND REDUCTIONS
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 for which the Commission will accept a timely appeal if it is obtained by duress, time pressure, intimidation, or deception. Whether an action is volun[91]*91tary or involuntary is determined not by the form of the action, but by the circumstances that produced it (see FPM chapter 715).
(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.)
* * * * sis
* * * The fact that the employee may be faced with an inherently unpleasant situation, or that his choice may be limited to two unpleasant alternatives, does not make the resulting action an involuntary action. * * *

In McGucken v. United States, supra,

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Bluebook (online)
591 F.2d 688, 219 Ct. Cl. 86, 1979 U.S. Ct. Cl. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-united-states-cc-1979.