The opinion of the court was delivered by: YOUNGDAHL
The prior history of this case is fully set forth in the opinion of the Court of Appeals of December 28, 1961. Paroczay v. Hodges, 111 U.S.App.D.C. 362, 297 F.2d 439 (1961). Following the decision of the Court of Appeals, the case was remanded to the District Court, which on March 20, 1962, remanded the case to the Civil Service Commission 'with directions to conduct further administrative proceedings, including an oral hearing, not inconsistent with the aforesaid opinion of the Court of Appeals * * *.' The opinion of the Court of Appeals indicated that the sole issue in the case is whether the plaintiff's resignation of February 17, 1960, from the Department of Commerce was voluntary or involuntary. If the resignation was voluntarily given, then plaintiff has no right to the reinstatement in government employment which he seeks in this law suit. If the resignation was involuntarily given, however, then plaintiff's separation from government employment constituted a discharge, and he would be entitled to certain procedural rights under the Veterans' Preference Act, 111 U.S.App.D.C. at 364, n. 4, 297 F.2d at 441, including the right to respond on the merits to certain charges made against him. Upon remand to the Civil Service Commission, the Appeals Examining Office held a hearing and concluded, in an opinion filed June 7, 1962, that the resignation was voluntary. This decision was affirmed by the Commission's Board of Appeals and Review on January 15, 1963. Both plaintiff and defendants have now moved for summary judgment in this Court.
'The events of the 17th are the critical ones; for on the 16th, while he was given the alternative of resigning or facing charges, there was then no suggestion of necessity for an immediate decision. On the 17th for the first time plaintiff, according to his affidavit, was pressed into an immediate decision at the interview; he was then faced for the first time with being charged with serious misconduct unless he resigned then and there. The affidavit that this occurred raised an issue as to the voluntariness of the resignation.
'Of course, the defendants should be given an opportunity to contradict the statements of plaintiff as to the occurrences on the 17th and to establish the voluntariness of the resignation signed on that day. We hold only that in the form in which the versions of the facts were presented by affidavits to the Commission the resignation was not demonstrated to have been voluntary, and that in the District Court there was presented a material issue of fact in that regard which made the case inappropriate for disposition by summary judgment.' 111 U.S.App.D.C. at 364, 297 F.2d at 441.
Implicit in this holding by the Court of Appeals must be the conclusion that if the facts as related by the plaintiff are substantially true, then plaintiff would be entitled to summary judgment.
As to the events of February 16, the allegation which the above-quoted portions of the Court of Appeals opinion show to be essential is that on that date, plaintiff received 'no suggestion of necessity for an immediate decision.' 111 U.S.App.D.C. at 364, 297 F.2d at 441. (Emphasis added). This allegation was not controverted in Mr. Davis' affidavit, which stated merely: 'I told (the plaintiff) that the information was very serious and if true, would warrant his removal from the service, and that when the detailed information (of derogatory allegations) was received, I would have to file charges leading to his removal.' At the hearing before the Appeals Examining Office of the Civil Service Commission, both plaintiff and Mr. Davis testified substantially to the effect that there was no mention on February 16 that on the next day plaintiff would be faced with a choice of resigning immediately or facing charges. Plaintiff testified that Mr. Davis 'didn't have the official report' and that Mr. Davis 'said it would take 5 or 6 days for the report to come down from the office.' (Tr. 32-3.) On this issue, Mr. Davis testified that plaintiff 'made mention of wanting to go out of town' for 'approximately a week or so,'
'and he wondered if he could just take this week, and my office do nothing about initiating any letter of charges until he had had a chance to think things over a little bit, and I told him this was not the kind of information I could just sit around and wait a week on, after he had admitted these things, both to us and to the Department.' (Tr. 54.)
As to the events of February 17, it is undisputed that on the morning of that day plaintiff came to see Mr. Davis to deny the derogatory allegations which he had admitted the day before. Plaintiff's version of the conversation, as quoted by the Court of Appeals from his affidavit, was as follows:
'the said J. J. Davis said, 'If you do not resign now, I will press charges immediately. As soon as I go into the front office, I will start proceedings;' I asked the said J. J. Davis for a few days to think the matter over and he said, 'No, once you leave this office, I will start proceedings right now. Sign now;' without advice of counsel or an opportunity to discuss the matter with my wife or friends, and being apprehensive of being held up to public obloquy, I signed a 'form' resignation * * * on February 17, 1960, and effective March 18, 1960 * * *.' (quoted at 111 U.S.App.D.C. at 363-364, 297 F.2d at 440).
At the hearing before the Appeals Examining Office, the following answers were given by Mr. Davis to questions propounded by plaintiff's attorney relating to whether the above-quoted account of plaintiff was substantially correct:
'Q. Didn't you tell him you only had one thing to do, file charges? A. I told him I thought I had no choice but to file charges, yes, sir. (Tr. 70.) 'Q. Did he ask you that he would like to consult an attorney at that time? A. No, sir, he did not. 'Q. Did he ask you that he would like to take some time to think the matter over? A. Yes, sir. 'Q. What was your answer to that? A. I told him I would have to go ahead and file the charges. 'Q. In other words, he couldn't think it over? A. He could think it over as long as he wanted to but I would not refrain from filing the letter of charges. (Tr. 75.) 'Q. In other words, you testified if (plaintiff) didn't sign this, you wouldn't give him any time at all to sign this. Is that correct? A. I testified I was going to file the charges against him that day. 'Q. Immediately. Is that correct? A. That same day, yes, sir. 'Q. Did he ask to take the resignation out of the office? A. Yes, sir. 'Q. And you said he couldn't do it? A. No, sir, I did not. 'Q. What did you say? A. I told him he could take it with him if he wanted to, but I would have to go ahead and file the letter of charges. 'Q. Do I interpret correctly, if you didn't have a resignation in your hands, you were going to prefer charges. Is that correct? A. I think this is a fair statement, yes, sir. 'Q. In other words, as soon as (plaintiff), if he didn't give you that resignation right now, you were going to go and prefer charges? A. I intended to have the letter initiated that same day, yes, sir. (Tr. 76-7.) 'Q. (Plaintiff) said that you said this, 'If you do not resign, now, I will press charges, immediately; as soon as I go into the front office, I will start proceedings, immediately.' Now, is that a correct answer to the situation? A. I don't think this is the way I would have said it. I think I would have told him I intended to file charges. 'Q. Just a minute. Don't say what you intended to do. The Examiner is only interested in what actually occurred. A. If I understand you correctly, you are asking me whether I said this exact statement? 'Q. That is right. A. I don't know whether I said that exact statement. I don't think I said it that way. 'Q. You may have said it? A. I don't know whether I said it or not. 'Q. The gist of it was what you have done? A. I will be glad to state the gist of it. 'Q. He either handed you that resignation, and if he didn't you were going to file charges against him?
A. This is correct. (Tr. 78-9.)'
In the face of the above testimony, the Board of Appeals and Review concluded that the resignation was voluntary. To support this conclusion, the Board drew upon the ...