
    419 F. 2d 416
    LILLIAN H. HORNE v. THE UNITED STATES
    [No. 400-65.
    Decided December 12, 1969]
    
      
      Carl L. Shipley, attorney of record, for plaintiff. Bufus W. Peehham, Jr., and Shipley, Ahermcm & Piekett, of counsel.
    
      Katherme E. Johnson, with whom was Assistant Attorney General William D. Buekelshaus, for defendant.
    Before Cowen, Chief Judge, Laramore, Durpee, Davis, Collins, SeeltoN, and Nichols, Judges.
    
   Per Curiam:

This case was referred to Trial Commissioner Saul Bichard Gamer with directions to make findings of 'fact and recommendation for conclusions of law under the order of reference and Buie 57(a) [since September 1, 1969, Buie 134(h)]. The commissioner has done so in an opinion and report filed on August 15, 1969. Neither party has filed exceptions to the commissioner’s opinion and report and the time for so filing pursuant to the rules of this court has expired. On October 15,1969 the defendant filed a motion that the court adopt the commissioner’s report as the basis for its judgment in this case. Plaintiff has filed no response to this motion and the time for so filing pursuant to the rules of the court has expired. Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby grants defendant’s motion and adopts the said opinion, findings and recommended conclusion of law as the basis for its judgment in this case without oral argument. Therefore, plaintiff is not entitled to recover and the petition is dismissed.

OPINION OP COMMISSIONER

Gamer, Commissioner:

On November 27, 1964, plaintiff, while in her one-year probationary period, was separated from her position with the Manhattan, New York, District of tbe Internal Revenue Service. Plaintiff bad been appointed to tbe position on June 15,1964. Her appeals to tbe Civil Service Commission were unsuccessful. Her petition here alleges that her discharge was arbitrary, capricious, and unlawful, and seeks judgment for loss of salary.

A detailed consideration of tbe record herein, following a full trial, fails to disclose any basis for recovery.

No procedural defect in effecting plaintiff’s separation has been shown. The only pertinent regulation applicable at the time was Section 315.804 of the Civil Service Regulations, which prescribed the procedure for the termination of employment of probationers for unsatisfactory performance or conduct. The quite summary procedure authorized was here followed. The regulation simply provides that the agency shall set forth its “conclusions as to the inadequacies of [the probationer’s] performance or conduct.” By letter of November 17, 1964, to plaintiff, the agency notified her that, effective November 27,1964, she would foe separated because she had been “uncooperative” with agency officials in that she had “unnecessarily impeded audit procedures” in connection with an audit conducted of her own income tax returns. Such audits were routinely made as part of the investigation of all IRS employees in plaintiff’s category (tax technician) prior to the expiration of their probationary periods. The letter went on to state, after a full recitation of the acts and events upon which the agency’s “conclusions” were based, that:

_ As a Tax Technician, one of your major responsibilities is to obtain the cooperation of taxpayers in the enforcement of provisions of the Tax Code and to encourage voluntary compliance. By your actions in regard to your own audit you have shown that you would be unable to perform, your duties suitably and conscientiously, and are, therefore, being separated to promote the efficiency of the Eevenue Service.

In thus stating that plaintiff’s uncooperative conduct in connection with her own tax audit demonstrated an inability to perform the duties of a tax technician suitably and conscientiously, the agency was manifestly in compliance with the “conclusions” requirement of the regulation. Actually, the letter, setting forth in considerable detail plaintiff’s various acts (and failures to act) upon which the agency’s conclusions were grounded, went further than required by the regulation.

Apparently, as shown by her appeal to the Civil Service Commission, plaintiff was under the misconception that she was entitled to advance written notice of the proposed dismissal, presumably in the nature of charges, to which she had a right to reply, for that was one of the points she made in her appeal. (As shown, the notice did set forth the date upon which the termination would become effective.) However, unlike employees with permanent civil service status in their positions, who are entitled to the protections of the Lloyd-LaFollette Act, including advance written notice ¡based on charges, as well as the opportunity to reply, probationary employees are subject to the summary dismissal procedure described in the above-mentioned Civil Service regulation. Dargo v. United States, 176 Ct. Cl. 1193 (1966). Plaintiff seemingly now concedes this, for the contention is no longer pressed.

Similarly, the contention plaintiff has sometimes asserted that, because she had, since 1952, served in various federal positions m which she had attained civil service status, she was not subject to the summary dismissal procedure applicable to probationers, is also now apparently abandoned. Plaintiff concedes that her previous positions, which were of the secretarial-stenographic type in agencies other than the IES, involved duties of a different nature and character than that of the tax technician position for which she was employed by the Internal Revenue Service. Thus, she was properly subject to a one-year probationary period in her new position. Dargo v. United States, supra.

Consequently, the only basis upon which plaintiff’s dismissal can foe attacked is on the merits, and plaintiff’s main thrust is now so grounded. She says that, despite the conclusion of the agency that she was “uncooperative” because she had “unnecessarily impeded audit procedures,” and that therefore she would not, in the agency’s opinion, be an employee who could “perform [her] duties suitably and conscientiously,” she had in fact been cooperative and her attitude and conduct had been proper.

Considering the strong presumption that public officials act in good faith, an employee carries a heavy burden in attempting to show, in cases of this kind, that his discharge was so lacking in rational support that it must be characterized as arbitrary or capricious. Greenway v. United States, 175 Ct. Cl. 350, cert. denied, 385 U.S. 881 (1966); Knotts v. United States, 128 Ct. Cl. 489, 121 F. Supp. 630 (1954).

It is settled that “the courts cannot be drawn into the merits of controversies relating to competence. Judgments as to an employee’s qualifications or the satisfactory nature of his services must necessarily rest with the agencies and not with the courts. [Cases cited] All the courts can do in questions of this kind is to make certain the agency’s action represents honest judgment.” Dargo v. United States, supra at 1206. And here the record, including the testimony of the official who initiated the dismissal action, affirmatively shows that the agency’s action was taken in good faith and, in its sound opinion, to promote the efficiency of the Service. Further, the evidence demonstrates that such determination and action were not so lacking in factual support as to compel the conclusion that they were without any reasonable foundation and therefore arbitrary and capricious.

For one attempting to demonstrate her fitness for the tax technician job to which she was aspiring, plaintiff certainly acted in a strange manner. In notices (a telegram and a letter) of May 28, 1964, which plaintiff received, stating that she had been selected for appointment, plaintiff was specifically advised that the appointment would be “subject to the results of a character investigation and an audit of your income tax returns filed for three prior years” and that “the first year of this appointment will be a probationary period.” Actually, in anticipation of her selection, an employee audit had already been initiated of plaintiff’s 1962 and 1963 (joint) returns. Plaintiff was so advised by letter of May 7, 1964, from the Brooklyn, New York, District Director. The letter stated that additional information was necessary to verify her reported tax liabilities, and requested that she bring the records she used in computing her taxes for such years to the District Director’s Office on May 11, 1964. The letter further stated that information was specifically required to support the deductions plaintiff had taken for interest expense, as well as for medical and dental expenses. Plaintiff’s conference appointment, the letter advised, was with Miss Jean Kaufman, an experienced tax technician who was then assigned to conducting audits of the returns of IBS employees.

On May 11, 1964, plaintiff did appear for the conference, but brought no data at all with respect to 1962. As to 1963, all she brought was partial verification (medical bills and canceled checks) of her medical expenses (around $800 out of total claimed expenditures of over $1,700). Some canceled checks to credit unions, finance companies, and stores were submitted as proof of loans and installment purchases. However, because there was no showing as to what part of the total check amount, if any, represented interest, these were not accepted as interest expense verification. In justification for the paucity of verification material presented, plaintiff explained that she had recently moved from Washington, D.C., to the New York City area and that the papers she required could not be located. Miss Kaufman explained to plaintiff, however, that the loss of the papers plaintiff felt she needed would not necessarily prevent verification since experience indicated that, in such cases, the writing by the taxpayer of a few short notes to the doctors or hospitals involved to obtain copies of their bills or statements of payments, or., with respect to the interest payments claimed, to the lenders to obtain statements of the loan accounts, invariably promptly produced acceptable verification. Similarly, plaintiff was also asked to obtain verification of the deductions claimed with respect to charitable contributions and taxes. Plaintiff agreed she would write such letters as Miss Kaufman described immediately, and, since it was expected that replies thereto would be received in about two weeks, it was further agreed that another conference would be held in Miss Kaufman’s office on May 26, 1964, to review the material and possibly to complete the audit.

Despite their continued best efforts to arrange for another meeting with plaintiff, however, that was the last that Miss Kaufman or anyone else in the Brooklyn District Office ever saw of plaintiff. By letter of May 25, 1964, the day before the agreed-upon conference date, plaintiff wrote to Miss Kaufman that she was still unable to locate the missing papers. She consequently requested a postponement, but stated she hoped that “in a few days” she could obtain “all the necessary documents, so as not to delay my entrance on duty with your Service any longer.” Nothing was mentioned about having written the letters she had promised to send, nor was any new conference date suggested.

Hearing nothing further from plaintiff “in a few days,” Miss Kaufman, 'by letter of June 12, 1964, reminded plaintiff that the information she had submitted was insufficient to complete the audit, and asked plaintiff to telephone her on June 15,1964.

Miss Kaufman did not receive the requested call on June 15, 1964 (that was the day plaintiff was appointed to her position) . Plowever, the next day plaintiff wrote to Miss Kaufman, stated that the Baltimore, Maryland, IBS Office, where she had filed her 1963 return, was also examining it, and requested that Miss Kaufman’s audit “be withheld” until the Baltimore District completed its examination. Plaintiff further stated that her missing papers still had not been located, “ [b]ut in order not to delay your processing further,” sbe requested a copy of her 1962 return (being unable to locate her own copy), “so that I may submit what information I have, if any, or justification therefor.” There was still no indication that plaintiff had written any of the verification letters she had promised to send.

By letter of June 22, 1961, Miss Kaufman sent plaintiff the requested copy of the 1962 return, stated that she would lite to complete the audit “as soon as possible,” and advised that if plaintiff could not make a personal visit, the verification data should be mailed to her.

Another two weeks passed without any communication from plaintiff. The Brooklyn District officials then decided to contact the Manhattan District Office, where plaintiff was employed and was taking her training course, and request that that office speak to plaintiff and encourage her to communicate with the Brooklyn officials and assist them in completing the audit. Accordingly, on July 6, 1964, Miss Kaufman telephoned plaintiff’s supervisor at the Training Branch of the Manhattan Office, explained the situation to him, stated she considered it desirable to have another conference with plaintiff, and solicited his aid in having plaintiff come to the Brooklyn Office, or at least contact her by telephone. Miss Kaufman was assured that trainees could take off such time as was necessary in connection with matters pertaining to their own audits. After conferring with plaintiff, a Manhattan Office official (one of plaintiff’s instructors), advised Miss Kaufman the following day that he had relayed Miss Kaufman’s message to plaintiff, but that plaintiff stated she would mail the verification data to Miss Kaufman.

Plaintiff’s supervisor, apparently having followed up the matter about a week later, and having ascertained that plaintiff had still done nothing about the matter, was assured by plaintiff that she would send in the papers immediately. The supervisor then again so advised Miss Kaufman.

By letter of July 14, 1964, plaintiff forwarded to the Brooklyn Office certain data which she referred to as “information sheets regarding specific items on the returns.” The sheets consisted only of explanations as to how the deductions on the returns had been computed. These were substantially the same explanations plaintiff had already made at the conference as long ago as May 11, 1964. No independent verification materials were submitted, nor again was there any indication that plaintiff had sent any of the letters she had promised to send over two months ago.

Concluding that plaintiff was not cooperating and that further delay was unjustified, Miss Kaufman 'decided to complete the audit on the basis of the data she had. The amounts of the deductions verified or otherwise allowable were insufficient to exceed the standard deductions. Accordingly, the claimed deductions were disallowed and instead the standard deductions allowed for both years. Plaintiff was so informed by letters of July 21, 1964, from the Brooklyn District Director. The resulting recomputations showed deficiencies of $164.43 for 1962 and $443 for 1963. The letters further advised that, if plaintiff wished, she could discuss the matter in person with the examining office, or have an informal conference with an independent conferee.

By letter of August 1, 1964, plaintiff requested reconsideration of the matter “by conference or any other means or method you deem necessary” (although, because of her training program, she stated she preferred that the matter be handled “without a personal visitation on my part, if at all possible”). The letter went on to recite that the deficiency report was “unreasonable in view of the circumstances,” that the “audits were occasioned by my acceptance for employment with the Internal Bevenue Service” and that “I find this additional taxation or employment fee is much more than I bargained for * * Again she attached “information” sheets containing substantially the same deduction explanations previously made.

The matter was then assigned to a staff conferee at the Brooklyn Office, who, since plaintiff indicated a willingness to confer about the matter, sent plaintiff an “Invitation to Conference” letter dated September 4, 1964. However, by letter of September 13,1964, plaintiff requested that the matter be reviewed on the basis of the data already submitted.

The staff conferee then advised plaintiff by telephone that the information already submitted was insufficient to warrant greater allowances, and invited her to a conference to review the entire matter. However, although she had previously indicated a willingness to have a conference (which caused the case to be assigned to a staff conferee), plaintiff now declined the invitation.

Accordingly, plaintiff’s case was referred back to the Audit Division for the issuance of formal deficiency determinations. Letters containing such determinations were sent on October 6, 1964.

The Brooklyn officials then decided to call plaintiff’s case to the attention of Mr. Peter Dillon, the chief of the branch in the Manhattan District Office to which plaintiff was assigned. Dillon immediately spoke to plaintiff about the matter. Dillon was not familiar with or concerned about the details of plaintiff’s tax problems. What he was concerned about was plaintiff’s apparent attitude and failure to cooperate. Plaintiff told him that the delays in the completion of her audit were due to her missing papers, that she was still searching for them, and that just as soon as she could locate them, she would mail them to the Brooklyn District Office. Dillon advised her of the Brooklyn District’s concern. He told her that the officials there stood ready to see her immediately. Plaintiff stated that she could not go to Brooklyn at that time because (apparently considering the matter as a personal one) she had no leave. However, Dillon stated he would allow her such time as was necessary for the purpose, without charging it to leave. Plaintiff responded that other engagements prevented her from going immediately, but that she would mail some verification data to the Brooklyn Office the following day, and would attempt to visit it the day after.

By the close of the interview, Dillon was troubled by what be felt constituted evasive conduct on plaintiff’s part. In any event, be advised tbe Brooklyn officials of plaintiff’s statements that she would both forward further data and attempt to visit them personally to enable them to close their audit file. However, when Dillon’s subsequent follow-up with the Brooklyn officials disclosed that plaintiff had done neither (as the Brooklyn officials had anticipated), he once more conferred with plaintiff, told her of his concern about her failure to do as she had promised, and advised her of the serious nature of the matter. Plaintiff then stated that she had no other data to submit, and that she would promptly mail her check to pay the deficiencies in full (which plaintiff did). As she had stated in her letter of August 1,1964, to the Brooklyn Office, plaintiff reiterated to Dillon, however, that she felt the amount involved constituted the exaction of a high employment fee by the Internal Revenue Service, a statement which Dillon felt reflected an attitude which was wholly improper.

Dillon ultimately concluded that the audit of plaintiff’s returns disclosed attitudes which would be incompatible with satisfactory performance by a tax technician. Such an employee would have constant contact with the public. One of her important duties would be to obtain the cooperation of, and voluntary compliance by, taxpayers when their returns were being audited and questions raised with respect thereto. With the attitude toward the Service, and the lack of cooperation plaintiff had herself displayed in connection with the audit of her own returns, he concluded that she would make a poor representative of the Service. Accordingly, he initiated her separation by the District Director by the letter of November 17, 1964, as above set forth.

Certainly as the above review amply demonstrates, the good faith action by the Service in separating plaintiff for the good of the Service was well within the ambit of permissible agency discretion and in no way can be labeled arbitrary or capricious. And this is so whether or not others might reasonably have taken different or less drastic action with respect to plaintiff. “* * * such matters as the appropriate disciplinary action to be taken normally lie within the agency’s discretion.” Dargo v. United States, supra at 1207.

Plaintiff further says she was proving herself to be a technically competent employee but was nevertheless discharged simply because she had a tax controversy with the IES. This, she says, does not constitute, under the regulation, “performance or conduct on the job.” She was doing nothing impermissible, she says, in claiming deductions, even if it turned out she could not substantiate them. Such inability, she argues, is not unusual taxpayer conduct. It would be unfair, plaintiff urges, to hol'd a competent IES employee to a higher standard of conduct in this respect than any other taxpayer.

The above review and analysis of plaintiff’s relations with her agency with respect to the audit of her tax returns refute the contention. Plaintiff was not discharged because she had, as she says, “a personal tax controversy with the I.E.S.” As plaintiff herself points out, many taxpayers fail to substantiate deductions. This is also true of IES employees and is not in itself considered as any indication of dishonesty. It is especially true of new IES employees, who may not be familiar with the tax laws or regulations. In this respect, the audit of the past years’ returns also serves as an educational tool and as part of their training. What plaintiff was discharged for, as the letter of termination explicitly stated, was her attitude, obviously an important job ingredient. That attitude indeed left much to be desired, as was amply illustrated by plaintiff’s considering the disallowance of her unsubstantiated deductions as the exaction of an “employment fee,” thus in effect impugning the good faith of her agency-employer. It was further illustrated by her uncooperative conduct, as demonstrated by her several promises to supply substantiating data and then apparently making little or no effort to obtain such data, as well as by her statements that she desired or was willing to have personal conferences but then not following through with respect thereto, and indeed actually declining to attend such conferences when specifically invited to do so. To the agency officials, it almost seemed, not unreasonably, that plaintiff was, for reasons best known to herself, deliberately engaging in dilatory tactics. Tech-meal competence is not the sole test of job qualification. Cf. Ruderer v. United States, 188 Ct. Cl. 456, 459-60, 412 F. 2d 1285, 1287-88 (1969).

Finally, plaintiff argues that she was discharged for reasons other than those set forth in the termination letter of November 17, 1964. The contention is grounded upon the fact that, after he was drawn into the matter of plaintiff’s personnel problem and had his conferences with plaintiff, Dillon, prior to arriving at a final conclusion on the question of whether he should recommend plaintiff’s dismissal on the audit bases indicated, inquired of plaintiff’s supervisor concerning her on-the-job performance. The supervisor reported that technically, plaintiff was performing competently. He further stated, however, that her attitude toward her supervisor was not one of being willing to consult with him freely, and that, consequently, she failed to so consult with him on the more complex problems which he felt called for such consultation. She tended, he said, to operate alone and to fail to seek help. Dillon felt that the work traits the supervisor described reinforced his conclusion that plaintiff had some of the weaknesses which the audit of her returns had uncovered. It was then that he recommended to the District Director that plaintiff be dismissed for the reasons growing out of the audit of her returns. Accordingly, plaintiff now says she was discharged for the reasons, inter alia, that she was not free and willing to consult with her supervisor and failed to consult with him on matters concerning which he felt she should; that she failed to seek help; and that she operated alone, none of which reasons were set forth in the termination notice. This, she argues, violated the pertinent regulation hereinabove mentioned, requiring that the notice set forth the agency’s “conclusions as to the inadequacies of [the employee’s] performance or conduct.”

The contention cannot be accepted. Clearly, plaintiff’s discharge was based only upon the conduct and attitudes she displayed in connection with her audit. That other work traits she exhibited, although not of such character in themselves as to justify dismissal, reinforced the agency’s conclusion as to the correctness of its decision concerning the weaknesses she displayed in connection with the audit, is quite immaterial. It was perfectly natural for Dillon, prior to his final dismissal recommendation, to have called for an on-the-job report of plaintiff’s performance. There is no showing that, the audit matter aside, Dillon would have recommended the termination of plaintiff’s employment during her probationary period on the basis of the supervisor’s report, especially in light of the supervisor’s conclusion that technically she was proving to be a competent employee. Nor was there any reason why, if plaintiff’s on-the-job performance was actually considered to be unsatisfactory, her termination could not have been on such basis, without any need for a coverup. Considering the entire record, no basis becomes apparent for any assumption that plaintiff’s discharge was actually grounded in any part upon the on-the-job work traits discussed by plaintiff’s supervisor.

For all of the above reasons, plaintiff is not entitled to recover.

FINDINGS on Fact

1. In September 1963, plaintiff was employed by Headquarters, Defense Supply Agency, Cameron Station, Alexandria, Virginia, as a secretary (stenographer) in Civil Service Grade GS-6. At that time plaintiff and her husband resided in Washington, D.C. Plaintiff had worked for the Federal Government since May 1952 and had been in such Defense Supply Agency position since April 1962.

2. Plaintiff’s husband was an employee of the Post Office Department in Washington, D.C. However, in October 1963, he was transferred to New York City. Accordingly, plaintiff sought federal employment in New York City. Toward that end, shortly after her husband’s transfer, plaintiff took a Civil Service examination (Federal Service Entrance Examination) in Washington and requested that, if she passed, her name be placed on the New York City register for such positions as she might qualify.

3. By March 15, 1964, plaintiff had not as yet obtained employment in the New York City area. Accordingly, she took a grade demotion (to Grade GS-5) in the agency in which she was employed and transferred to the position of secretary (stenographer) with the Defense Medical Supply Center in Brooklyn, New York. The transfer was effective March 15, 1964. Although plaintiff commenced working in Brooklyn on such date, and also then established her residence in Flushing, New York, her personal effects were left in Washington, D.C. They were moved to Flushing, New York, about two weeks later. Neither plaintiff nor her husband was present in Washington when the move took place, plaintiff relying on others to make certain that all of the contents of her home were shipped.

4. By a telegram dated March 24, 1964, the Internal Revenue Service (IBS) notified plaintiff that she was being considered for the position of tax technician in New York City. The telegram was sent to plaintiff’s Washington address. Plaintiff was requested to report for an interview in Washington on March 26, 1964.

5. The telegram of March 24, 1964, was immediately forwarded to plaintiff in New York City, and on March 26, plaintiff reported for the Washington interview which was conducted by a panel of Internal Revenue Service officials. Plaintiff was informed during the interview concerning the duties and responsibilities of the position for which she was being considered. She was also advised that all IRS employees holding such positions were subject to a character investigation which would include an audit of their federal tax returns for the last three years. She was further informed that new employees would be obliged to go through a training and probationary period during which their work performance would be observed and evaluated. The position for which plaintiff was being considered required the employee to deal with the public directly. One of the primary objectives of the panel interview was to measure, by appraisal of personal qualities, the prospective employee’s capacity for meeting and dealing with the public.

6. (a) By a letter of May 7, 1964 (Form L-14), from the IRS District Director in Brooklyn, New York, plaintiff was advised that her federal income tax returns for 1962 and 1963 were being examined and that information in addition to that supplied with the returns was needed to verify her reported tax liabilities. So that the examination could be completed “as soon as possible,” plaintiff was requested to come to the District Director’s Office in Brooklyn on May 11, 1964, and to bring with her all records, receipts, canceled checks, and other data used in computing her tax for the years in question. The letter stated it was especially important that plaintiff submit complete information concerning the interest expenses and medical and dental expenses which she had claimed as deductions. Plaintiff was also requested to bring in all savings account books, as well as a copy of her 1963 return, which had been filed with the Collector in Baltimore, Maryland, and which the Brooklyn Office did not then have. The letter indicated that plaintiff’s appointment on May 11, 1964, was with “J. Kaufman.”

(b)The examination of plaintiff’s 1962 and 1963 returns was being made in view of her prospective employment by IBS. The “J. Kaufman” referred to in the letter was Miss Jean S. Kaufman, one of the experienced and highly regarded tax technicians in the office of the Brooklyn District Audit Branch, who was then assigned to conducting audits of IBS employees’ returns.

7. (a) At the appointed time on May 11, 1964, plaintiff met with Miss Kaufman at the Brooklyn District Director’s Office.

(b) On plaintiff’s 1962 (joint) return, deductions in the amount of $201.48 were claimed as contributions, $299 as interest expense, $425.55 as taxes, and $814.11 as medical and dental expense (total medical and dental expenditures amounting to $1,223.71). The deductions claimed totaled $1,740.14.

(c) On plaintiff’s 1963 (joint) return, deductions in the amount of $558.74 were claimed as contributions, $450 as interest expense, $534.40 as taxes, and $1,258 as medical and dental expense (total medical and dental expenditures amounting to $1,714). The deductions claimed totaled $2,801.

(d) Plaintiff informed Miss Kaufman that, as a result of possible loss or mislaying of papers incident to her recent move from Washington to New York City, she was not able to locate all of the requested verification data. She did, however, submit a copy of her 1963 return (in compliance with the Service’s request) and some medical bills and canceled checks supporting certain medical expenses for such year. Of the $1,714 total medical and dental expenditures claimed to have been made for such year, plaintiff’s submissions served to verify only around $800. Some canceled checks to credit unions, finance companies, and stores were presented as proof of loans and installment purchases but were not accepted as interest expense verification since there was no showing of how much of the amounts paid represented interest. Nothing was submitted with respect to the 1962 return.

(e) Since plaintiff’s substantiation of the deductions for the two years was so deficient, Miss Kaufman advised her that additional verification material would be required. Miss Kaufman also explained that any loss of plaintiff’s original records would not necessarily prevent verification since experience indicated that in such cases the relatively simple process of plaintiff’s writing a few short notes to such persons as the doctors involved to obtain copies of their bills or statements of payments, or, with respect to the interest payments claimed, to the lenders to obtain statements of her accounts, including the amount of interest plaintiff paid during the years involved, invariably promptly produced acceptable verification. Accordingly, plaintiff agreed that she would immediately write such letters in an attempt to obtain the required additional verification. Since plaintiff felt that the replies to her letters would be received within two weeks, it was agreed that another conference would be held in Miss Kaufman’s office on May 26,1964. To aid plaintiff in understanding what was required, Miss Kaufman at the interview gave plaintiff the following memorandum concerning the material which plaintiff should supply at the next interview:

John M. & Lillian H. Horne 5/11/64
1962 year — Verification of contributions, interest expense, all medical expenses.
Ke taxes — How you arrived at figures.
1963 year — All contributions, receipts or cancelled checks.
Interest payments — letters from any loan co. or credit unions stating interest paid in 1963.
Check hospitalization premium.
Ee taxes — breakdown of how figures arrived at.

8. By tetter of May 25, 1964 (the day before that set for the conference), to the Brooklyn District Director (marked for the attention of Miss Kaufman), concerning her “personnel type audit,” plaintiff advised that “a complete inventory of our household furnishings and personal effects delivered to us by the vanlines” definitely disclosed that certain of her belongings were missing, including the “material required at our next meeting.” She stated: “Accordingly, I am asking for a postponement, until I am in possession of same, so as to complete the final portion of this personnel audit.” Plaintiff advised that she was checking certain leads, including the building superintendent (who had made some of the moving arrangements for plaintiff) concerning the location of some “rather small boxes which may have been left in the dwelling as trash” and which probably contained “the missing articles.” The letter closed as follows:

Miss Kaufman, I sincerely appreciate your understanding and indulgence in this matter. I trust that in a few days, I may be in a position to have all the necessary documents so as not to delay my entrance on duty with your Service any longer.

The letter suggested no date as to when plaintiff would again meet with Miss Kaufman, nor did it indicate that plaintiff had written any letters such as she had promised to write at the conference on May 11, 1964.

9. By a telegram of May 28,1964, as well as a letter of the same date, plaintiff was advised that she had been selected for appointment to the position of tax technician in the Manhattan District of the Internal Revenue Service, effective June 15, 1964. The letter stated that the appointment was “subject to the results of a character investigation and an audit of your income tax returns filed for three prior years,” and that “the first year of this appointment will be a probationary period.”

10. On or about June 9, 1964, plaintiff received a tetter from the Baltimore, Maryland, District Director, with whose office plaintiff had filed her 1963 return. The tetter recited that such return bad been selected for examination, and plaintiff was requested to submit records concerning the medical and dental expenses she had claimed as a. deduction.

11. On (Friday) June 12,1964, Miss Kaufman, not having heard further from plaintiff, had a form letter sent to her over the signature of the BrooHyn District Director, which stated that “the information recently furnished is not sufficient to complete the audit of your Federal income tax for the year[s 1962/1963] shown above. Therefore, you are requested to furnish the additional information referred to below.” In the following blank space on the form, Miss Kaufman, over her own signature, wrote:

Please phone me at ULster 2-5100 Extension 58 Monday [June 15, 1964] between 8:30 AM and 4:30 PM. Thank you.

12. (a) Effective June 15, 1964, plaintiff was appointed to the position of “Tax Technician (Trainee) ” in the Audit Division, Office Audit Branch, Internal Revenue Service, 120 Church Street, New York City. The appointment was “subject to completion of 1 year probationary (or trial) period commencing June 15,1964,” and also “subject to investigation.” Plaintiff’s prior federal service had been of a different nature and character than that of the tax technician position for which she was employed by the Internal Revenue Service.

(b) This was the day Miss Kaufman had, in the District Director’s letter of June 12, 1964, requested plaintiff to telephone her. However, Miss Kaufman did not receive any telephone call from plaintiff that day.

13. By letter of June 16, 1964, addressed to the Brooklyn District Director (Attention, Miss Kaufman), plaintiff advised that she had attempted unsuccessfully to reach Miss Kaufman by telephone both on June 15 and 16, 1964, and was, therefore, writing the letter instead. (The record contains no satisfactory explanation for any inability to contact Miss Kaufman on the days in question. Miss Kaufman was on duty on such days, and her telephone was covered at all times.) Plaintiff stated that she had, during the preceding week, received a letter from the Office of the Baltimore District Director advising that her 1963 return was being examined by that office. Plaintiff said that, inasmuch as she was entitled to a refund for such year, “I request that continuation of your audit be withheld until a determination is made by the Baltimore District.” The letter further stated:

I regret most grievously that the missing articles of our household belongings mentioned in my May 25th letter have not been located. But in order not to delay your processing further, please furnish me with a copy of my 1962 Tax Return, so that I may submit what information I have, if any, or justification therefor.

14. By letter of June 22,1964, to plaintiff, Miss Kaufman forwarded a copy of plaintiff’s 1962 return. The letter stated in part:

We would like to complete audit of your 1962 and 1963 returns as soon as possible.
If you cannot come in to see me, please mail the verification to me.
Thank you for your letters keeping me informed.

15. (a) Hearing nothing further from plaintiff during the following two weeks, Miss Kaufman consulted with Thomas Cardoza, the Chief of the Office Audit Branch (the branch in which Miss Kaufman was employed) about the difficulty she was experiencing in completing the audit. Cardoza advised her to go through personnel channels and the Manhattan District’s Training Branch and request it to encourage plaintiff’s coming to the Brooklyn District. Accordingly, on July 6, 1964, Miss Kaufman telephoned the Training Branch of the Manhattan District at 120 Church Street, New York City, where plaintiff, as a trainee, was receiving tax technician class instruction. Miss Kaufman told the branch officials that she was conducting an audit of plaintiff’s tax returns, that she considered it desirable to have another conference with plaintiff, and wished to know when plaintiff could come in to the Brooklyn Office. Miss Kaufman was told that they would call her back and advise her when plaintiff could come to Brooklyn to see her. Later that day, Mr. Arnold Elson, an IRS agent who was one of plaintiff’s instructors, called Miss Kaufman about the matter. She reiterated to El-son she would like to get in touch with plaintiff concerning the pending audit and requested him to tell plaintiff to telephone her or to come to her office. Although the training course classes plaintiff was then taking commenced at 8:30 A.iyT. and concluded at 5 P.M., only about one-half of that time consisted of actual classroom attendance, the balance being study periods, and the instructors were authorized to permit trainees to take time off when necessary, especially when the problem involved was a trainee’s own tax audit. (The Brooklyn District Office was one subway stop from the Manhattan Church Street office.) Elson told Miss Kaufman he would relay her message to plaintiff and would have plaintiff telephone Miss Kaufman. He stated that plaintiff would certainly have the time to go to the Brooklyn Office on July 14, 1964, since that was a “Visitation Day.” He also advised that the training school classes would terminate August 17, 1964, after which plaintiff would commence receiving on-the-job training.

(b) The following day, July 7, 1964, Elson telephoned Miss Kaufman and advised that he had spoken to plaintiff and given her Miss Kaufman’s message. He reported that plaintiff stated she would mail the papers in question to Miss Kaufman.

(c) On July 13,1964, Elson again telephoned Miss Kaufman and advised that plaintiff had informed him that Miss Kaufman should receive the papers that day.

16. (a) By letter of July 14, 1964, to Miss Kaufman, plaintiff thanked her for the copy of the 1962 return. Plaintiff stated that there were attached to the letter “information sheets regarding specific items on the return.” The letter further stated:

Mr. Elson, from the office, relayed your message to me the earlier part of this week. Because of the condenseness and complexity of this tax training program and my absorption ability at this point, I hope this information would negate my personal visitation to your office. However, if you feel that it is necessary, arrangements will have to be made.
I have received no further information from the Baltimore region regarding my 1963 return as of this date.

(b) The sheets attached to the letter explained how the figures on the 1962 return relating to the deductions for contributions, interest expenses, taxes, and medical expenses were arrived at. There was no verification of any expense such as was discussed at the May 11, 1964 conference between plaintiff and Miss Kaufman, nor was there any indication that plaintiff had sent letters requesting such verification, as she had promised to do at such conference. The sheets contained substantially the same explanations that plaintiff had already made at the May 11 conference.

17. At this point, Miss Kaufman concluded that plaintiff was not cooperating in the expeditious completion of the audit of her 1962 and 1963 tax returns; that such lack of cooperation was resulting in unreasonable delay in effecting such completion; and that further delay was unjustified. She believed that if plaintiff had actually sought the verification discussed at the conference on May 11, 1964, it could have been obtained in approximately two weeks. Normally, an auditor will not wait over a month for such verification to be submitted. If not submitted within such time (unless special arrangements are made for an extension) the deduction will be disallowed and the additional tax determined. In this case, Miss Kaufman had waited over two months with no results, despite affirmative attempts to contact and enlist the cooperation of this taxpayer-employee. Accordingly, she reviewed plaintiff’s files relating to the returns for the purpose of completing the audit based on such data as she had. For 1962, there was no verification whatsoever concerning the claimed deductions. She therefore disallowed such deductions in their entirety and instead allowed only the standard deduction (which, in the case of a joint return, as was plaintiff’s, came to $1,000). For 1963, the only acceptable verification consisted of the medical bills which plaintiff had submitted at the conference on May 11, 1964. However, these totaled less than $1,000. Accordingly, plaintiff was again allowed the standard deduction ($1,000) for such year, For both years, such additional amounts as could be allowed, based on reasonable or acceptable estimates, would still be insufficient to make the total allowances exceed $1,000.

18. (a) By letters of July 21, 1964 (Form L-16) plaintiff (and her husband) was advised by the Brooklyn District Director that her returns for 1962 and 1963 had been adjusted in accordance with an enclosed report. For 1962, the report stated: “Since you bave not substantiated any of the items requested, we are recomputing your return allowing the standard deduction.” For 1963, $50 was allowed for contributions; nothing was allowed for interest expense; $100 was allowed as a reasonable amount for sales taxes; and $535 was allowed as verified medical expense. However, since the total of all the allowances was less than the standard deduction, plaintiff was allowed the standard. The recomputations of the taxes resulted in a deficiency of $164.43 for 1962, and $443 for 1963. For 1963, plaintiff, because of withholdings, was required to pay only $48 more to liquidate the deficiency. Plaintiff’s return had indicated that, on the basis of the deductions claimed, a refund was due her in the amount of $395.

(b) The letters stated that if plaintiff did not accept the findings set forth in the report, she could submit additional evidence or information and discuss the matter in person, within fifteen days, with the office examining the case, or have an informal conference with an independent conferee provided she so advised within fifteen days. (She was also privileged to file a formal protest within thirty days and to request a conference with the Appellate Division of the Regional Commissioner’s Office.)

19. (a) By letter of August 1, 1964, to the Brooklyn District Director, plaintiff requested a recomputation and reconsideration of the deficiencies assessed for 1962 and 1963, as set forth in the report enclosed with the Director’s letter of July 21, 1964, “by conference or any other means or method you deem necessary.” The letter further stated:

. I find these reports unreasonable in view of the circumstances. These audits were occasioned by my acceptance for employment with the Internal Revenue Service. While I am happy for this appointment to a wonderful and challenging position, I find this additional taxation or employment fee is much, much more than I bargained for, and will impose an undue burden and hardship upon me, for which I don’t feel in all honesty and fairness is just due.
The attached information is pertinent to the taxable years in question.
Because of the training program here at Manhattan and the planned hour by hour schedule for these first six months, I would appreciate your consideration in these matters without a personal visitation on my part, if at all possible.

(b) Attached to the letter were explanations with respect to the 1962 and 1963 deductions in question.

As to 1962, plaintiff stated that as a result of her move from Washington to New York, “some vital records required for this audit” were lost, but that she had previously “submitted statements, explanations and computations substantiating the deductions claimed.” She further stated that although she had nothing additional to submit, “I maintain those amounts are true amounts and reasonable based on our income. Accordingly, I request acceptance be made of the information already submitted and relief from additional taxation be granted under the Cohan Rule, which is still applicable to 1962 expenditures.”

As to 1963, plaintiff submitted the following: (1) Concerning the “Contributions” deduction, she stated that the amounts she had claimed “are correct and bona fide actual donations made in 1963,” and that “I maintain further, that they are within the Imitation and reasonable in light of our income.” She further claimed three additional contribution deductions totaling $55 which had been omitted from her 1963 return and for which she submitted canceled checks in verification. (2) Concerning the “Interest Expense” deductions, plaintiff had claimed $200 as interest paid to credit unions. She now enclosed “a machine tape from one credit union in amount of $122.20,” and requested that the canceled checks she had previously submitted to Miss Kaufman at the conference on May 11,1964, be accepted as verification of the balance of $77.80. She similarly requested that the canceled checks previously submitted to Miss Kaufman and which were not accepted because the interest amounts were not segregated, be considered as acceptable verification for interest in the sum of $250 allegedly paid on personal notes, finance company loans, and installment purchases. (3) Concerning the “Medical and Dental Expenses,” plaintiff again explained the basis for the claimed deduction, but agreed to a disallowance in the amount of $278.24 previously claimed, since such amount constituted premiums for life and loss of earnings insurance, instead of accident and health, insurance, as originally claimed. (4) Concerning “Taxes,” plaintiff again made explanations as to how the amount claimed was calculated.

20. (a) As above set forth, plaintiff’s school training classes continued to August 17, 1964. On August 18, 1964, plaintiff’s three class instructors executed an Evaluation Report with respect to plaintiff’s classroom training performance. Her record showed an above average composite rating. However, the instructors commented that plaintiff “does not participate freely,” and that she “has a hesitant approach to” certain types of tax questions.

(b) Commencing August 18,1964, plaintiff (and the other trainees) commenced a 19-week on-the-job training program under selected instructors. The circular setting forth the program stated in part: “Primary responsibility for evaluating the trainee will rest with the on-the-job instructor who will carefully observe the trainee’s conduct, approach, and attitude in meeting and dealing with taxpayers and other people in carrying out his assignments.”

21. In response to plaintiff’s letter of August 1, 1964, her case was assigned to Mr. Stanley Siegel, a staff conferee, who had a letter (Form L-70) sent to plaintiff on September 4, 1964, by the “Conference Coordinator,” which contained an invitation to a conference since plaintiff’s letter requested either further consideration upon the basis of the material submitted or an informal conference.

22. By letter of September 13, 1964, to the Brooklyn District Director (Attention, Conference Coordinator), plaintiff referred to the information contained in her letter of August 1, 1964. She requested that “a meaningful and conscious effort be made to review” her records and that her taxes be recomputed “on information we have produced as substantiation in interview and subsequent correspondence.”

23. (a) On September 18,1964, Staff Conferee Siegel telephoned plaintiff. Plaintiff stated she felt that on the basis of the data she had already submitted and the explanations previously made, she was entitled to greater allowances for the claimed deductions. Siegel thereupon reviewed the file and concluded plaintiff was entitled to no greater allowances. He telephonically informed her of this on September 21, 1964, and invited her to a conference to discuss the issues again. However, plaintiff declined the invitation, stating that she could not take time off from her training program. She also indicated she did not have any further substantiation to offer in any event.

(b) On September 24, Siegel concluded that, although plaintiff had indicated a willingness to have a conference with a staff conferee, she was now refusing to do so. Accordingly, he referred the case back to the Audit Division for the issuance of formal deficiency determinations. The case thus came back to Miss Kaufman.

24. By letter dated October 6, 196,4, from the Brooklyn District Director (Form L-21), plaintiff (and her husband) was notified that a deficiency was determined in the amount of $164.48 for 1962, and $443 for 1963, as set forth in the L-16 letters of July 21, 1964. The letter advised that unless plaintiff agreed to make payment in accordance with the determinations, the deficiencies would be assessed for collection upon the expiration of ninety days.

25. (a) On October 13, 1964, the Chief of the Audit Division, Brooklyn District Office, discussed plaintiff’s case with Cardoza. They decided they would again attempt to have plaintiff personally come to the Brooklyn Office and then to see whether a satisfactory completion of the examination of her tax returns could be made. Accordingly, Cardoza called Peter Dillon, Chief, Office Audit Branch, Manhattan District (the branch in which plaintiff was employed), told him they were having difficulty in closing out plaintiff’s case in a manner appropriate to an employee’s audit, and requested him to talk to plaintiff and attempt to persuade her to come to the Brooklyn Office that day at 2 P.M.

(b) Dillon then promptly spoke to plaintiff about the call he had received from the Brooklyn District. Dillon asked her what the nature of her problem was. Plaintiff replied that as a result of her move from Washington, D.C., to New York City, she could not locate necessary substantiating records, and that just as soon as she could locate the papers, the audit could be completed. Dillon then asked her to contact the Brooklyn Office officials as quickly as possible because they wished to see her that day. Plaintiff replied that she could not go because she had no leave. Dillon stated that he would give her such time as was necessary for the purpose, without charging it against her leave. Plaintiff responded that other engagements prevented her going to the Brooklyn Office that day, that she would mail some information to that office the following day, and that she would try to visit there the day after.

(c) Dillon then telephoned Cardoza and told him of the results of his conversation with plaintiff. Dillon stated that he felt plaintiff had acted in an evasive manner.

(d) Cardoza had reservations as to plaintiff’s keeping the commitments she had made to Dillon concerning either the supplying of additional data to the Brooklyn Office or the making of a personal visit to that office. He felt the entire matter should be presented to the Chief of his Division. Accordingly, he requested Miss Kaufman to prepare a memorandum setting forth the history of the attempt by the Brooklyn Office to audit plaintiff’s returns.

(e) That day Miss Kaufman prepared and submitted a memorandum to Cardoza setting forth the 1962-1963 audit-history of plaintiff’s case in chronological form, commencing with the letter of May 7, 1964, sent to plaintiff and ending with the 90-day letter of October 6, 1964. The memorandum concluded with the comment: “In view of the volume of material in this file not only for these two years, but for the 1961 year, we would suggest that the entire file be reviewed.”

26. The following day, October 14, 1964, Cardoza sent a memorandum to the Chief of the Audit Division setting forth his conversations the previous day with Dillon and his reservations about plaintiff’s following through. Attached thereto was Miss Kaufman’s chronological history memorandum.

27. (a) On October 15, 1964, Dillon telephoned Cardoza to ascertain whether plaintiff had forwarded any further data or had personally visited the Brooklyn Office. When advised that plaintiff had done neither, Dillon again spoke to plaintiff, told her of his concern about her failure to do what she said she would do, and advised her of the serious nature of the matter. Plaintiff stated she had no other substantiating data available. She stated that she would, therefore, sign the agreement form (Form 870) enclosed with the 90-day letter of October 6, 1964, which would signify her agreement to pay the amounts of the determined 1962 and 1963 deficiencies, and that she would send it to the Brooklyn Office that day, together with a check in payment of the amount due. She stated that such amount constituted the exaction of 'a high employment fee by the Internal Revenue Service. Dillon felt such an attitude was not an appropriate one for a tax technician employee of the Service.

(b) Dillon promptly advised the Brooklyn Office by telephone of plaintiff’s statement that she would immediately sign the agreement and mail it, together with her check.

(c) That day plaintiff did execute the agreement form and mailed it to the Brooklyn Office with her check, both of which were received the following day.

28. (a) Dillon was not familiar with the details of plaintiff’s tax problem or especially concerned with the fact that she could not substantiate certain claimed deductions. This was not uncommon either in the cases of taxpayers in general or of IRS trainee-employees, and was not in itself any indication of dishonesty. He was, however, dissatisfied with plaintiff’s conduct concerning the audit of her returns. He felt (as did the Brooklyn District) that she had not properly cooperated in enabling the Brooklyn District to complete the audit of her returns expeditiously, and that, indeed, it appeared, for reasons best known to herself, she had deliberately engaged in dilatory tactics. For example, Dillon was concerned about her promising to supply substantiating data, and then apparently making little effort to obtain such data, as well as her stating that she desired or was willing to have personal conferences, and then not following through with respect thereto, or actually declining to attend such conferences when invited to do so. He was especially dissatisfied with the attitude she displayed, as indicated by her reference to the deficiencies determined against her as an “employment fee.” He doubted that anyone guilty of such conduct and displaying such an attitude would make a satisfactory tax technician employee of the Service. Such a position called for constant contact with the public. Proper performance of the duties of the position would result in the education of the taxpayer and the obtaining of his cooperation when his return was being audited. With the conduct and attitude she displayed concerning the audit of her own tax returns, he did not feel she would be a good educator or representative of the Service.

Plaintiff was still in her one-year probationary period, during which the Service constantly attempts to ascertain all it can about the employee to make certain the original selection was proper and that the employee has the character and personality attributes essential to satisfactory performance in the position for which he has been selected.

(b) Before coming to a final conclusion concerning the dismissal of plaintiff during her probationary period, Dillon asked her supervisor about her on-the-job performance. The supervisor reported that technically she was performing competently. However, he stated that her attitude toward her supervisor was not one of being free and willing to consult with him; that, consequently, she failed to consult with him on many of the more complex problems that called for such consultation; and that generally, she failed to seek help and tended to operate alone.

(c) The work traits described by plaintiff’s supervisor reinforced Dillon’s conclusion that plaintiff had some of the weaknesses which he felt the audit of her returns had uncovered. Accordingly, he decided that she would be dismissed during her probationary period, and so recommended to the District Director.

(d) Dillon’s decision that plaintiff should be discharged was based on no considerations other than those pertaining to the good of the Service, as above set forth. Dillon had been assigned to the Manhattan District in early September 1964. The record does not indicate that he ever knew plaintiff (or her husband) prior thereto.

29. By letter of November 17, 1964, to plaintiff, the Manhattan District Director advised that effective November 27, 1964, her employment would be terminated. The letter stated in part:

This letter constitutes a notice to you that you will be separated from the Internal Revenue Service on November 27, 1964 in accordance with Section 315.804 of the Civil Service Regulations, for disqualification during your probationary period, for the following reasons:
You have been uncooperative with officials of the Brooklyn District, Internal Revenue Service, and have unnecessarily impeded audit procedures. You were advised before your effective date of employment, June 15, 1964, that audits of your tax returns for the last three years would be required. On May 7,1964 you were asked to appear on May 11, 1964 with verification of certain deductions on your 1962 and 1963 returns. You appeared and stated that you couldn’t locate your papers because you had recently moved from Washington, D.C. The Tax Technician performing your audit gave you a memorandum listing the material required and arranged a postponement until May 26, 1964. By letter dated May 25, 1964 you asked for another postponement, stating that you had not obtained the required material. * * *

The letter continued with a recitation of acts and events between June 12,1964, and October 16,1964, when plaintiff’s check was received, and further stated:

As a Tax Technician, one of your major responsibilities is to obtain the cooperation of taxpayers in the enforcement of provisions of the Tax Code and to encourage voluntary compliance. By your actions in regard to your own audit you have shown that you would be unable to perform your duties suitably and conscientiously, and are, therefore, being separated to promote the efficiency of the Revenue Service.

30. Section 315.804 of the Civil Service Regulations, pursuant to which the Internal Revenue Service determined that plaintiff was disqualified during her probationary period, reads:

Section 315.804 Termination of probationers for unsatisfactory performance or conduct.
When an agency decides to terminate an employee serving a probationary or trial period because his work performance or conduct during this period fails to demonstrate his fitness or his qualifications for continued employment, it shall terminate his services by notifying him in writing as to why he is being separated and the effective date of the action. The information in the notice as to why the employee is being terminated shall, as a minimum, consist of the agency’s conclusions as to the inadequacies of his performance or conduct. [5 C.F.R. § 315.801 (1964).]

31. On November 20, 1964, plaintiff appealed her discharge to the New York Region of the United States Civil Service Commission. Plaintiff stated, as the reason for her appeal, that her discharge was a “[violation of Civil Service Regulations 315.804. This separation, it is felt, is not due to performance or conduct on the job. Therefore the procedure followed is in direct violation of this regulation. No advance written notice of proposed action was initiated by the Agency.”

32. Effective November 27, 1964, plaintiff was separated from her position, the separation being designated a “Termination During Probation.” The notification to plaintiff of this personnel action stated:

You were terminated during your probationary period as outlined in the letter to you dated November 17,1964, for uncooperativeness with officials of the Internal Revenue Service and unnecessarily impeding audit procedures on your own returns.

33. By letter dated December 18,' 1964, the Regional Director of the New York Region of the Civil Service Commission advised plaintiff that Section 315.804 of the Commission’s Regulations “does not provide for any appeal to the Civil Service Commission by a probationary employee on the basis of his inadequate performance or conduct on the job.” The letter further stated:

After carefully considering all of the information in the file in your case we find that there is no basis for your appeal to the Commission. Your claim that your separation was not due to performance or conduct on the job is without merit. Your actions subsequent to your appointment, as outlined in the letter of November 17, 1964, certainly relate to your conduct on the job.

34. Plaintiff then appealed to the United States Civil Service Commission Board of Appeals and Review. The Board, by its decision of February 16, 1965, held that since plaintiff was separated during her probationary period for reasons arising after her appointment, the decision of the New York Regional Office was affirmed.

Conclusion of Law

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover and the petition is dismissed. 
      
       By order of January 16, 1967, the court denied both defendant’s motion and plaintiff’s cross-motion for summary judgment.
     
      
       5 C.F.R. § 315.804 (1964).
     
      
       “Section 315.804 Termination of probationers for unsatisfactory performance or conduct.
      “When an agency decides to terminate an employee serving a probationary or trial period because his work performance or conduct during this period fails to demonstrate his fitness or his qualifications for continued employment, it shall terminate his services by notifying him in writing as to why he is being separated and the effective date of the action. The information in the notice as to why the employee is being terminated shall, as a minimum,, consist of the agency’s conclusions as to the inadequacies of his performance or conduct.”
     
      
      
         She stated: “No advance or written notice of proposed action was initiated by the Agency.”
     
      
       37 Stat. 539, 555, as amended by the Act of June 10, 1948, 62 Stat. 354, 5 U.S.C. § 652(a) (1964).
     
      
       The oficial title of the position to which plaintiff was appointed was “Tax Technician (Trainee).”
     
      
      
         The Civil Service Commission also took the position that it would not entertain an appeal based on a probationer’s inadequate performance or conduct on the job.
     
      
       Plaintiff was claiming total medical and dental expenditures of $1,223.71 for 1962 and $1,714 for 1963. Interest expense deductions of $299 and $450 were being claimed for 1962 and 1963, respectively.
     
      
       The letter stated that plaintiff had unsuccessfully attempted to reach Miss Kaufman by telephone both on June 15 and 16. The record contains no satisfactory explanation for any such inability, since Miss Kaufman was on duty both days and her telephone was covered at all times.
     
      
       Withholdings for 1963 were in such amounts as to require the payment of only $48 to liquidate the 1963 deficiency.
     
      
       There were a few changes as follows: (1) for 1963, plaintiff claimed three more charitable contribution deductions; (2) in support of the claimed 1963 interest expense deduction, which included $200 paid to credit unions, she submitted “a machine tape” in the amount of $122.20 from one union; and (3) agreed that $278.24 previously claimed as health and accident insurance premiums was not allowable, since such amount actually constituted premiums for life insurance.
     
      
       As to this contention of plaintiff’s, the Civil Service Commission stated: “Your claim that your separation was not due to performance or conduct on the job is without merit. Xour actions subsequent to your appointment, as outlined in the letter of November 17, 1964, certainly relate to your conduct on the job.”
     