
    389 F.2d 815
    ANTHONY C. AUTERA v. THE UNITED STATES
    [No. 344-65.
    Decided January 19, 1968]
    
      
      Oarl L, Shipley, attorney of record, for plaintiff. Rufus W. Peclcham, Jr., and Samuel Resnieoff, of counsel.
    
      Katherine H. Johnson, with, whom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant.
    Before Cowen, Ghief Judge, Laramore, D tortee, Davis, Collins, Skelton, and Nichols, Judges.
    
   Pee Curiam:

This case was referred to Trial Commissioner C. Murray Bernhardt with directions to make find-inga of fact and recommendation, for conclusions- of law under the order of reference and Eule 57 (a). The commissioner has done so in an opinion and report filed on September 19, 1967. Plaintiff has filed no exceptions to or brief on this report and the time for so filing pursuant to the Eules of the court has expired. On November 13, 1967, defendant filed a motion that the court adopt the report. Since the court agrees with the commissioner’s findings, opinion, and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same 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 Comhissioner

BeRNi-iaRdt, Commissioner: On January 27,1967, the court entered an order dismissing without prejudice the parties’ cross-motions for summary judgment and remanded the case to the commissioner for trial on the two fact issues of whether or not (1) plaintiff was coerced into resigning from his position, and (2) plaintiff was certified on a most nearly appropriate Civil Service register by the Civil Service Commission. Trial on these issues produces a negative result as to each.

Plaintiff, a five-point veterans’ preference eligible, seeks judgment for backpay from the date of his separation from civilian Government employment, alleging that his rights under both the Lloyd-LaFollette Act, 37 Stat. 555, as amended, 62 Stat. 354 (1948), 5 U.S.C. ’§ 652 (1964 ed.), and the Veterans’ Preference Act of 1944, 58 Stat. 387, as amended, 61 Stat. 723 (1947), 5 U.S.C. § 863 (1964 ed.), as well as his rights under Civil Service Eegulations, have been violated.

Two grounds are implicit: (1) The failure and refusal of the Securities and Exchange Commission (SEC) to convert his appointment in the classified service from temporary to probationary after his name had been certified by the Civil Service Commission (CSC) constituted breach of an express condition in his offer of appointment in addition to violating 5 C.F.E. §2.302 (1961 ed.), and (2) the coercive character of his resignation from SEC constituted in effect an unlawful discharge.

On August 4,1961, the Securities and Exchange Commission offered plaintiff an appointment as financial analyst, GS-1160-9, at $6,435 annually, “on a temporary basis pending your name being certified by the Civil Service Commission”. On August 21, 1961, plaintiff assumed his duties with SEC as a financial analyst in the Division of Corporate Regulation. On August 24, 1961, pursuant to plaintiff’s earlier application and unassembled examination, his name was entered on the Civil Service Commission register of eiigibles for U-255 Economist (Business), GS-9. Plaintiff proved to be a willing but incompetent financial analyst in the view of his superiors. On June 8, 1962, he was informed that his work had been disappointing because he did not seem to miderstand the nature of the work assignments given him and required too much supervision. He was told that unless he showed substantial improvement he would not be recommended for promotion, and was advised to consider looking elsewhere for a job. He admitted having difficulty in grasping the nature of his work assignments and hoped to improve.

He did not improve. On or about July 25, 1962, plaintiff was again called to a conference with his superiors. They told him that he had not demonstrated the competence required for his position, and gave him the choice of either having his temporary appointment terminated, or to resign voluntarily, in which latter case he would be given an opportunity to seek other employment on Government time. After reflecting a day or two the plaintiff, under date of July 27,1962, tendered

bis resignation effective September 28, 1962, assigning as reason: “To seek a position with better advancement possibilities.” The resignation was accepted to be effective September 28,1962. Plaintiff tried unsuccessfully to obtain other Government employment in the interim. He contends that his resignation was coerced. It is the prevailing view as announced in Rich v. Mitchell, 273 F. 2d 78 (D.C. Cir. 1959), cert. denied, 368 U.S. 854, and Popham v. United States, 151 Ct. Cl. 502, 506 (1960), that an agency official does not act illegally or improperly in telling an employee he can choose between separation and resignation, unless the plaintiff alleges and proves that the official knew or believed that the proposed reasons for the proposed separation could not be substantiated. In the case under consideration the plaintiff, if he in fact enjoyed only temporary status, had no discharge rights whatsoever. In giving plaintiff an option to resign and opportunity prior to the effective date of the resignation to look around for other employment, the plaintiff’s superiors were humanely exceeding requirements rather than threatening action which they had no authority to take. Dabney v. Freeman, supra, n. 2, and Paroczay v. Hodges, 219 F. Supp. 89 (D.D.C. 1963), and n. 2, supra, cited by plaintiff, do not aid him. In Dabney v. Freeman the court sustained the conclusion of the Civil Service Commission that plaintiff’s resignation was not coerced, according great weight to the Commission’s finding to that effect as the frier of the fact, and applying a standard of substantial evidence in reviewing and sustaining the agency’s finding. In Paroczay v. Hodges not only was the employee coerced into resigning by not being given time to decide whether to resign or to face immediate charges, but also the act of resignation deprived him of certain procedural rights under the Veterans’ Preference Act, such as the right to respond on the merits to charges made against him. In the present case the plaintiff was given a day or two to make up his mind whether to resign, and furthermore by resigning he was waiving no procedural rights, since he had none.

The remaining question is whether the plaintiff was certified by the CSC on a most nearly appropriate Civil Service register. Findings 7 through 13 explore this issue, reaching the conclusion that the U-255 economist register of the CSC on which plaintiff’s name was certified as an eligible was not the most nearly appropriate register for his appointment on a career-conditional basis to the position of SEC financial analyst, GS-9, thus ratifying the administrative holding. The condition in plaintiff’s offer of employment by SEC that it would be “on a temporary basis pending your name being certified by the Civil Service Commission” meant a certification by the CSC that the plaintiff was on a register of eligibles most nearly appropriate to that of SEC financial analyst. Throughout the Government there was no extant register of eligibles which was appropriate to provide candidates for the position of SEC financial analyst, because that position had unique requirements. Plaintiff’s certification by CSC on a register of eligibles for economist, GS-9, did not suffice the requirements of the SEC financial analyst position. Since at the time of plaintiff’s appointment in 1961 the register of eligibles for SEC financial analyst had been long since exhausted, and SEC elected not to announce a new examination for that position so as to establish a new register of eligibles, the plaintiff could only have been hired on a temporary basis as a financial analyst, as he was.

Just as the court has refused to determine and pass on the qualifications of an employee for any given post as decided by the CSC, in the absence of a showing that there has been some substantial departure from applicable procedures, a misconstruction of governing legislation, or some error going to the heart of the determination, it should not undertake to second-guess the CSC in determining whether a person eligible for career appointment as an economist, or financial economist (finding 12), is also eligible as a SEC financial analyst with duties strictly limited to responsibility for the administration and enforcement of the regulatory provisions of the Investment Company Act of 1940. Cf. Barger v. United States, 170 Ct. Cl. 207 (1965).

Findings op Fact

1. At some time prior to August 4,1961, the plaintiff:

(a) Applied to the Civil Service Commission for registration under the U-255 nationwide economist examination. He held a masters degree from the New York University School of Business Administration with a major in economics and a minor in finance.

(b) Applied in person to the SEC in Washington for a position as economist. There was no vacancy at that time in the SEC for an economist, but there was a vacancy on a temporary appointment basis for a financial analyst for which the SEC felt the plaintiff’s educational background qualified him. At that time SEC was having difficulty in finding qualified financial analysts.

2. On August 4,1961, the SEC offered plaintiff an appointment as a, financial analyst, GS-1160-9, in the Division of Corporate Regulation in Washington, D.C. The offer was made “on a temporary basis pending your name being certified by the Civil Service Commission”. This is a standard proviso in all temporary appointments by SEC under the so-called TAPER authority (Temporary Appointment Pending Establishment of a Register) to make it clear to the appointee that by acceptance of the offer he will not acquire a career service appointment and that any ultimate appointment of that nature will have to come through the Civil Service examination process.

3. Plaintiff accepted the offer of employment described in finding 2 and assumed his duties on or about August 21,1961. According to his affidavit attached to an earlier motion for summary judgment the plaintiff was given the impression that his position was permanent, and that his temporary appointment would be converted to a probationary employment in the career civil service as soon as his name was certified by the CSC. The trial record does not explicitly support this belief.

4. On August 24, 19.61, pursuant to plaintiff’s previous application, bis name was entered on the CSC register of eligibles for U-255 Economist (Business), GS-9, and subsequently bis name was entered on tbe CSC register of eligibles in certain optional fields as U-255 economist, viz: general, international trade and development, and fiscal and financial. No agency selected plaintiff for an economist position, although he had a possible opportunity to be employed as such by the Army Transportation Corps but did not pursue it because of his preference for SEC.

5. On June 8,1962, plaintiff was called in for a brief conference with his immediate division superiors, and was informed that, while they were recommending that he be given a satisfactory efficiency rating, his work had disappointed them because he did not seem to understand the nature of the work assignments given him and required too close supervision. Plaintiff was told that unless he showed substantial improvement he would not be recommended for promotion, and he was advised that he should consider looking elsewhere for a, job. Plaintiff admitted that he was having difficulty in grasping the nature of his work assignments and hoped to improve. This account of the conference is based on a memorandum of June 14, 1962, which plaintiff’s two immediate supervisors submitted to the director of the division. Plaintiff admitted at trial that he attended the conference in question, stated that he was merely told “there’s no place for you in the SEC”, and denied that he was criticized for his work performance or told that he would have to improve his performance. Based on the testimony of the plaintiff and his two superiors in question, the latters’ version of the conference is accepted in preference to the plaintiff’s as being more reliable, more as a reflection on the plaintiff’s memory than his probity.

6. On or about July 25, 1962, plaintiff attended a conference with the director and assistant director of the division in which he worked, and the director of personnel for SEC. At this conference plaintiff was informed that, while he was found to be a very willing and cooperative employee, he had not demonstrated the competence required for his position. Plaintiff was then given the choice either to have his temporary appointment terminated by a notice in writing, or to resign, in which latter case he would be given an opportunity to seek other employment on Government time. He was given a day or two to consider the matter, and under date of July 27, 1962, tendered his resignation on the appropriate form, prepared by a staff secretary, assigning as his reason: “To seek a position with better advancement possibilities.” The resignation was processed on a Request for Personnel Action and was made prospectively effective September 28, 1962. The plaintiff disputes the date of the meeting (alleging it to have taken place on or about September 18, 1962), and its contents. According to plaintiff there was no meeting in July 1962, the meeting of September 18, 1962, was the first complaint he had received of his work performance, and he was told by the division director at the meeting that if he did not resign voluntarily “We will find a way to get you out.” Based on the testimony of plaintiff and SEC officials who participated, the latters’ version of the meeting is accepted as more reliable. The plaintiff contends that he was coerced into tendering his resignation. Assuming that the plaintiff’s appointment was temporary and that under the applicable regulations it was subject to termination without assignment of grounds, it is concluded that the plaintiff’s resignation was voluntary in the sense that it was to him a preferable alternative to a readily available termination without statement of cause, since it left no stigma which would affect plaintiff’s future employment opportunities and was coupled with a humane and generous opportunity to seek other employment in the remainder of his Government time. Plaintiff’s search for other Government employment was unsuccessful. A lack of bias on the part of SEC officials is apparent throughout their testimony, and is corroborated (Defendant’s Exhibit 4) by the lengthy responses of the SEC personnel director to an inquiry by the Near East College Association, Inc., for a reference regarding plaintiff’s fitness for a teaching assignment. The responses reflect many complimentary aspects of the plaintiff’s capabilities, and the only detrimental comment is:

He experienced some difficulties in developing a, good grasp of or capacity for this particular specialization, especially with respect creativity and the expertiseness one must acquire for the intricate financial analysis he was called upon to handle.

The Defendant’s Exhibit 4 was allowed in evidence only as defendant’s offer of proof, an objection having been sustained to its admission, but on reflection the ruling is reconsidered and the exhibit admitted because it serves to discount bias on the part of SEC officials in securing the resignation of the plaintiff.

7. Under applicable law and regulations, when there is no register of eligible applicants for filling a particular type of position by certification to the employing agency, the Civil Service Commission may determine that there is an appropriate existing register of eligibles most nearly similar to the one sought and utilize that register for certification of eligibles thereon upon request of an agency for certification of names to fill a vacancy in the competitive position. When an appointment is made from such a selective certification (i.e., from the most nearly appropriate register), it is on a competitive basis just as it would be if certification in the regular order (i.e., from the identical register of eligibles) had been possible.

8. There is no such thing in Government personnel procedures as “conversion” of a temporary (TAPEN) appointment to a competitive career-conditional appointment. All applicants for competitive career positions, whether they are at the time temporary Government employees or outside the Government, must go through the same examination, certification, and selection process, although some are required to undergo written examinations while others are accepted on “unassembled examinations”, i.e., on the basis of their educational background and experience disclosed in their application papers. If the applicant selected for a career position holds the same position under a temporary appointment, his temporary appointment is terminated. It does not follow that an incumbent with a temporary appointment to a particular position will be selected for the same career-conditional position in tibie competitive service, since he mnst compete against other applicants on a merit basis.

9. At one time under regulations since changed the CSC delegated to various agencies the authority to hold examinations and prepare lists of eligibles for certain types of positions. Thus in 1946 the SEC appointed a Board of Examiners from its own personnel to announce in 1947 an EC 3-3 examination for financial analyst, and in 1949 established a register of 80 to 100 eligibles from among over 3,000 applicants. The examination was closed in 1949, and in succeeding years whenever the SEC required the employment of a financial analyst it made its selection from the register of eligibles until names on the register were exhausted in June 1959. Thereafter, any financial analysts required by SEC were engaged on a temporary (TAPER) basis, for the demand was not enough to justify holding another examination to establish a new register of eligibles. In the meantime certain other agencies having need for financial analysts would select them from a suitable register of financial analysts having background and experience peculiar to their individual needs. For example, the Housing and Home Finance Agency selected financial analysts from a separate register of eligibles. Because of the unique nature of the duties of financial analysts in the Housing and Home Finance Agency as contrasted with those in the SEC, a register of financial analysts available to the former would not be suitable to the latter, and accordingly the one register would not be considered to be the most nearly appropriate register for the other’s requirements. A person who was on the financial analyst register for one agency would not automatically be considered as eligible for employment as a financial analyst in some other agency performing different duties. The CSC was the arbiter for determining these issues.

10. The unique nature of the duties of a SEC financial analyst is illustrated by the job description. They are limited to service in the Investment Company Regulation Branch of the Division of Corporate Regulation. They are required to analyze and evaluate applications for exemption, registra-, tions, re-registrations, prospectuses, proxies and other papers filed by companies subject to the 1940 Act; and in collaboration with a higher grade attorney and/or financial analyst, to draft proposed findings, opinions and declaratory orders, prepare reports, and make recommendations for the division to •propose to the SEC. Corporation finance is a very specialized field of economics, particularly pertinent to the work of the SEC. There are no positions of economist in the SEC Division of Corporate Regulation. General theoretical economics has only the most general sort of relationship to the work of the SEC. A financial analyst for the SEC should preferably have experience as a securities analyst or accountant, with a thorough knowledge of corporate finance.

11. Although the plaintiff was on the CSC register of eligibles for XJ-255 economist, that did not qualify him for the position of financial analyst for the SEC, since the U-255 register was not the most nearly appropriate existing register to the exhausted SEC EC 3-3 register for financial analyst. In fact, because of the highly specialized nature of the latter there was no existing register anywhere in the Government which could be classified as appropriate to the SEC register of financial analysts. Thus, in offering plaintiff a position as financial analyst and advising him that it would be on a temporally basis until his name was certified by the Civil Service Commission, the SEC did not by so doing represent that the CSC would so certify the plaintiff unless the U-255 register of eligibles for the position of economist was deemed by CSC to be the most nearly appropriate register to the position of SEC financial analyst. CSC did not so deem.

12. On February 26, 1965, the SEC sent plaintiff an “Inquiry as to Availability” for the position of financial economist, for which the plaintiff was considered eligible because of his name being on the register of eligibles for U-255 economists, but this did not equate to the position of financial analyst despite the surface similarity of the titles. The plaintiff replied indicating his availability, but he was not selected.

13. It is concluded that the U-255 economist register upon which plaintiff was entered as eligible for selection for appointment as an economist (business) on August 24,1961, was not the most nearly appropriate register for appointment on a career-conditional basis to the position of SEC financial analyst, GrS-9, nor would the CSC have permitted the use of the U-255 economist register for the appointment to the position of EC 3-3 financial analyst.

CONCLUSION 03? 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. 
      
       5 C.F.R. § 2.302 provides as to temporary appointments pending establishment of a register:
      “When there are Insufficient eiigibles on a register appropriate for filling a vacancy in a continuing position (one that will last longer than a year) and the public interest requires that the vacancy be filled before eiigibles can be certified, the Commission may authorize the agency to fill the vacancy by temporary appointment pending establishment of a register. Such appointment shall continue only for such period as may be necessary to make appointment through certification.”
     
      
       Where a resignation has been coerced the consequent separation of a Civil Service employee constitutes an illegal discharge. Dabney v. Freeman, 358 F. 2d 533, 534, 535 (D.C. Cir. 1965)1; Paroczay V. Hodges, 297, F. 2d 439, 441, n. 4 (D.C. Cir. 1961).
     
      
       5 C.F.R. 9.104(a) (1961 ed.), which entitled the TAPER employee to a written notice of separation, was deleted effective February 10, 1961 (26 Fed. Reg. 18). Effective November 17, 1963, Section 2-2(3) of 316-5 Federal Personnel Manual provided for separation of TAPER employees on written notice. Between the two dates of February 10, 1961, and November 17, 1963, there was no Civil Service Regulation or Federal Personnel Manual instruction requiring that a TAPER be given a notice in writing that he was to be separated or that gave him any “discharge rights” if he was separated.
     
      
       The present plaintiff apparently took no action administratively until February 26, 1965, when he filed a request with SEC. Losing there he appealed to the CSC, and on April 19, 1965 the CSC ruled that it had no jurisdiction to adjudicate his appeal.
     
      
       The seemingly incompatible statement that plaintiff would be recommended for a satisfactory efficiency rating Is weakly explained In terms of CSC policy regarding ratings for probationary employees. Evidence does not establish that a rating was given plaintiff, or if one was, what it was.
     