author: NICHOLS, Judge.

text:
    Gerald J. PEDEN v. The UNITED STATES.
    No. 174-73.
    United States Court of Claims.
    March 19, 1975.
    Otto G. Obermaier, New York City, attorney of record for plaintiff. Martin, Obermaier & Morvillo, New York City, of counsel.
    Marc J. Fink, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant. Paul A. Zoss, Washington, D. C., of counsel.
    Before SKELTON, NICHOLS and BENNETT, Judges.
   NICHOLS, Judge.

This action is brought before us on cross motions for summary judgment seeking our review of a decision by the Board of Appeals and Review (BAR) of the Civil Service Commission (CSC). Plaintiff is an ex-Government employee who was removed by “adverse action” and who asks the usual relief of reinstatement to the position and back pay. 28 U.S.C. § 1491, as amended. We find no triable issue of fact. The BAR decision is based on substantial evidence and is not arbitrary, capricious or contrary to law. Our review disclosed no prejudicial procedural error.

The plaintiff, Gerald J. Peden, was a GS — 12 special agent of the Internal Revenue Service (IRS). His function was to investigate criminal tax frauds. The special agent is the unobtrusive fellow casually introduced to you midway in the audit of your income tax return, as the one who is now taking over. If you grasp the significance of his title, you gather your wits together and rush out to hire the ablest criminal lawyer you can obtain, at any cost. You know the prison doors are yawning for your reception.

Peden a veteran and “preference eligible,” had served in the above capacity since 1961, and had an excellent record. He was attached to the Intelligence Division and operated in White Plains, Westchester County, New York, as his duty station. On January 26, 1970, agents of the Inspection Service, a related branch of the Treasury, gave Peden the usual Miranda warnings and he declined to answer any of their questions. They then informed him that Section 1941.71 of the Rules of Conduct for IRS employees required him to “respond to questions on matters of official interest.” They wanted to question him about the tax liabilities of Peter Variano, Angelo Mascia, and others, they said, but he refused to furnish any information.

The following day Peden was formally arrested under warrant and charged with criminal violations. On January 28, 1970, the District Director of Internal Revenue served a formal notice on him, proposing to remove him from the Service for cause. On January 30, he was suspended for 30 days, without pay. The ensuing in-and-out minuet of criminal and civil proceedings lasting 2 and lk years is the essence of this case, and the chronology is important. It presents real problems as to the proper way to go about removing a civil servant from office in face of dragged out criminal proceedings directly relating to his fitness to hold the office. It is the kind of case which possibly will not recur — or if it does, under different conditions — when the Speedy Trial Act of 1974, Pub.L. 93— 619, 18 U.S.C. § 3161, is achieving its intended effect.

The January 28 “adverse action” notice makes three charges. Charge I is conspiring to bribe employees of the IRS to influence them in the performance of their official duties. Specification 1 under this relates to charges that plaintiff conspired with one Williams, representing taxpayer Variano, to have Williams pay bribes to various employees of the Manhattan District. The period stated is late October 1969 to early December 1969. Under Specification 2, plaintiff allegedly conspired with Williams, representing taxpayers Angelo Mascia and John Mascia, to the same ends. Charge II alleges failure to report the above conspiracies to higher officials. Charge III alleges refusal to answer questions on matters of official interest in the interview with the Inspection Service, mentioned above.

By 26 U.S.C. § 7214, part of the Internal Revenue Code, it is provided that if an officer of the United States, acting in connection with any revenue law, conspires to or colludes with any person to defraud the United States, or does or omits to do any act with intent to enable any other person to defraud the United States, he shall be “dismissed from office or discharged from employment and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.” There is also a provision for judgment against the officer or employee in favor of any person injured.

This seems to say that immediately on the offense being known, not after conviction, the offender must be dismissed. Specifications 1 and 2 to Charge I allege matter seemingly requiring immediate removal, in view of this. Counsel have not discussed how this affects the case, and we do not treat it as decisive of anything. It does appear, however, that a point is early reached where a District Director is himself in violation of law if he knows of breaches of § 7214 and fails to take action.

On February 4, Peden requested a hearing. On February 5, he was given a new 30-day suspension. On February 17, his counsel appeared for him at the “oral reply”, to be further discussed below. On March 4, the District Director formally removed Peden effective March 6. That day he appealed to the CSC which accepted the appeal on March 11.

On April 10, 1970, IRS refused to provide data on the case to the CSC, citing a request by the United States Attorney. On April 21, CSC notified Peden that the appeal was suspended pending conclusion of the criminal action.

Peden’s attorney seems to have acquiesced in this for about a year; however, on April 5, 1971, he requested a hearing, which request he renewed on May 6, June 2, and June 9. On June 11, he appealed to the BAR.

All this time there was no indictment. Finally the District Court gave the Government a deadline to indict or drop the case. The Grand Jury handed down a 9-count indictment on June 24. The long delay is explained as due to the Government’s need of testimony by Williams and one Powell, which was not available until Powell was convicted on June 10.

Peden’s attorney applied again to the CSC on September 9, 1971, and on refusal he sued the CSC in the United States District Court on November 5. Judge Bonsai denied a preliminary injunction on the ground that a CSC hearing would allow Peden discovery of the criminal case against him far beyond the provisions of the Federal Rules of Criminal Procedure. We only know of this important decision through the affidavit of plaintiff’s counsel, Mr. Obermaier. In spite of this unfavorable ruling, he credits the suit for causing the CSC to move. On December 27, 1971, it lifted the suspension with the consent of the United States Attorney.

On January 14, 1972, IRS provided its files to CSC and on February 9 and 10 the CSC hearing took place in New York. On April 5, CSC upheld the dismissal of Peden on all three Charges, only striking part of Specification 2 to Charge I. Peden appealed to BAR April 21.

On May 22 — 26, 1972, the criminal trial took place before a jury. The presiding judge, Judge Frankel, directed a verdict of not guilty on 5 counts. The jury itself acquitted on 2 and convicted on 2. The convictions were on two counts involving activity for taxpayer Angelo Mascia. The activity for taxpayer Variano was the subject of only one count, and that count fell by directed verdict.

On October 17, 1972, after further complaints of delay BAR affirmed the dismissal. This suit followed.

I

Defendant attempts to defend Charge III in face of Kalkines v. United States, 473 F.2d 1391, 200 Ct.Cl. 570 (1973). We cannot agree. The statements of the agents to Peden were a masterpiece of confusion. They told him per the Miranda formula that he could have counsel and did not have to talk. Thus, as a criminal investigator himself, he could have had no doubt he was suspected of having committed a crime. Then they told him, per the Treasury regulation, that he did have to talk. No explanation or resolution of this inconsistency was offered. According to our Kalkines decision, a regulation of this Treasury type can be used to coerce information from a criminal suspect only if he is given adequate assurance that his responses will not be used against him in any criminal proceeding. No such assurance was given here. Terry v. United States, 499 F.2d 695, 204 Ct.Cl. 543 (1974), is not in point since there was no direct coercion by the agents and the regulation was not of the Treasury type. We do not consider Charge III further.

II

We turn to the “oral reply” of February 17, 1970. The conferees were Mr. Birnbaum, a GS-14 attorney who headed a section that conferred with taxpayers on civil tax disputes, and Mr. Morvillo, attorney for Peden. We agree with defendant that Mr. Birnbaum had the personal qualifications we found lacking in the “oral reply officer” appointed by the same agency in Ricucci v. United States, 425 F.2d 1252, 192 Ct.Cl. 1; motion for reconsideration denied, 432 F.2d 453, 193 Ct.Cl. 120 (1970). As stated in the per curiam opinion denying rehearing, the purpose of the oral reply is “significant conference and negotiation with management.” (432 F.2d at 455, 193 Ct.Cl. at 124). Mr. Birnbaum was well prepared to discuss Charge III, which involved legal rather than factual issues. He was not able to discuss Charges I and II at all, being wholly uninformed as to the factual foundation for them. We doubt if assigning an “oral reply officer” is normally adequate if he is as ill prepared as that. However, we cannot but regard the error as harmless in view of the circumstances. Peden, as both sides well knew, was a criminal suspect. Both sides went to the “oral reply” with no intention of discussing factual issues. This was assured on Peden’s side by his staying away. Mr. Morvillo was free to make and did make the legal arguments he went there to make. Mr. Birnbaum’s corresponding silence as to facts was assured by his knowing nothing he could wittingly or unwittingly reveal. The investigation was still going on, and informants’ lives might have been endangered if a meaningful interchange on the facts had taken place.

The “oral reply” was more of a cat- and-mouse game than a negotiation, and in the circumstances nothing more could have been expected. The regulations are apparently defective in not providing for this common situation, and our Ricucci decision should have made it clear we were not speaking about an instance where the ousted employee was also a criminal defendant. We do not mean that the “oral reply” is not required in such circumstances, but that deficiencies in mere ritual should not by themselves trip up an agency in an adverse action if the employee gets the substance of what is realistic to expect in the circumstances.

Ill

Plaintiff also says, or seems to say, that his appeal to the CSC was defeated only by evidence that did not exist or was not in the possession of the District Director when he signed the charges or when he removed the plaintiff from his position, and that the real issue was what evidence did the District Director then have. At the CSC hearing, incriminating evidence was given by Williams and Powell, who had recently themselves been convicted and would not, probably, have testified against Peden until that occurred. It is not denied and hardly could be that we have impliedly sanctioned the use of evidence (in proceedings of this type) that came into existence or became known only after the discharge. Cohen v. United States, 369 F.2d 976, 177 Ct.Cl. 599 (1966), cert. denied, 387 U.S. 917, 87 S.Ct. 2029, 18 L.Ed.2d 969 (1967); Kowal v. United States, 412 F.2d 867, 188 Ct.Cl. 631 (1969). We suppose plaintiff’s position to be that the District Director did not have probable cause on the firing date, or if he did, he failed to perpetuate a record of it so we can determine on judicial review whether he had it or not.

The case against Peden was originally made by two undercover IRS (Revenue) agents, Ruggiero and Fenton. During the investigation of Powell, Peden and Williams, they either carried concealed tape recorders or radio transmitters linked to remote tape recorders. In addition the IRS Inspection Service made transcripts and extensively debriefed Ruggiero and Fenton after each meeting with any of the suspects. Plaintiff has not and indeed cannot complain of any lack of contemporaneous record of these incriminating conversations.

The District Director did not hear the tapes or read the transcripts, bút he had almost daily oral briefings on the unfolding events. However, by the hearing date his memory of just what he had heard had become fuzzy. It was a ease of quis custodiet custodes. The special agents, supposedly the members of the Service most immune to any sin and error, were tainted by corruption to an unknown extent. Very wisely, and unlike some better known statesmen, he restricted knowledge of the investigation to the most urgent need to know, and created no files of papers when it could be avoided. It would be somewhat absurd to say there was enough probable cause for a judicial officer to issue a warrant for Peden’s arrest, as occurred here, but not enough for preparation of adverse action charges. The knowledge of the institution was the District Director’s knowledge too. What an executive officer’s subordinates know, he is chargeable with knowing, for many legal purposes. And the District Director was not required, when he signed the charging letter, to have a file physically in front of him with all the transcripts, statements and documents in it.

What might happen if the District Director’s knowledge could not be reconstructed to the extent that was done here, or if it should appear he signed the letter on the basis of insufficient evidence or none, which was supplied to an adequate level before the hearing, are questions that do not arise in this case, and we do not consider.

IV

The last serious issue is that of delay, and like the others, it is inextricably intertwined with the fact that criminal charges were pending. We believe it has long been the practice to “freeze” civil proceedings when a criminal prosecution involving the same facts is warming up or under way. In the context of appeals from civil service adverse actions, we have repeatedly approved this practice. Cohen v. United States, supra ; Finn v. United States, 152 Ct.Cl. 1 (1961). See also, Polcover v. Secretary of Treasury, 155 U.S.App.D.C. 338, 477 F.2d 1223 (1973), cert. denied 414 U.S. 1001, 94 S.Ct. 356, 38 L.Ed.2d 237. The novelty here is not that there was a freeze, but that it was lifted before and not after the criminal trial.

In Polcover, supra, Circuit Judge Tamm says the practice is for the protection of the employee, and therefore the question arises whether an employee, as Peden here, can waive this protection, clamor for a speedy hearing, and claim denial of due process unless he gets it. We do not think the impropriety of a civil hearing in such circumstances is necessarily eliminated in this way, unless the United States Attorney joins in the waiver, as eventually he did here. The “freeze” we think is not for the protection of the employee only, but also rises out of a sense that deferrable civil proceedings constitute improper interference with the criminal proceedings if they churn over the same evidentiary material.

What would happen if the employee could show prejudice by the delay is a case not before us. We do not think any prejudice is shown here. It looks as if the agency was the more prejudiced if anyone was. It bore the risk, if its witness’ memories had failed during the delay period, as to some extent they had. The plaintiff has not pointed to testimony he lost but would have presented had the hearing taken place sooner, and except by cross-examination he offered none as it was. The main utility to plaintiff of having the hearing in advance of the criminal trial was the opportunity of cross-examining the witnesses the Government was going to use at the criminal trial, including the undercover agents. The facts strongly suggest that any other purpose in demanding such timing was strictly secondary. Plaintiff’s able counsel seized the opportunity presented him with both hands. This plaintiff was as well served by having the hearing shortly before the criminal trial, as he would have been by having it shortly after the appeal was taken, and better served in that the convicted witnesses Powell and Williams were available for his cross-examination.

Certainly, a CSC hearing that is in the nature of a dress rehearsal for a criminal trial, in which all the Government witnesses testify and are cross-examined at length, but the defendant to be does not, is potentially a big lift to the criminal defense and could well be decisive in securing an acquittal, if anything could. We find it extraordinary that counsel for the employee should be here complaining about such advantageous procedure for him. In passing, we note that the United States Attorney for the District was not even allowed to have an observer at the CSC hearing, while counsel for the agency candidly admitted he was not a trial lawyer. He did not do all that badly, but it helps illustrate the values involved. Yet, under the law, it is at least doubtful whether the District Director could have delayed serving his removal notice, once he knew the facts. Here everyone seemed to be doing his best in a situation that was sticky for everyone. We call attention to the difficulties without offering criticism of anyone or having any pat solution.

V

Plaintiff does not deny that sufficient material was received at the hearing to constitute substantial evidence that he committed the offenses alleged in Charges I and II. His situation as to Charge I, Specification 1, the Variano case, is not aided by his directed verdict of acquittal on the corresponding count of the indictment, Count 9. It is well settled that an acquittal on criminal charges does not per se impair the substantiality of evidence of guilt of a corresponding charge made in an appeal from a Civil Service removal for cause. Polcover, supra, Finn, supra; See, Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 82 L.Ed. 917 (1938); Silver v. McCamey, 95 U.S.App.D.C. 318, 221 F.2d 873 (1955). In view of plaintiff’s concession we have not deemed it necessary to set forth the evidence in detail. We do note that the conspiracy periods set forth in Specifications 1 and 2 were only part of the periods that were shown to have existed by the evidence. Plaintiff does not make anything of this here, so neither do we.

Since the law required removal on Charge I, and since Charge II was established by substantial evidence, our disapproval of Charge III does not affect the result.

Accordingly, the plaintiff’s motion for summary judgment is denied, the defendant’s motion for summary judgment is granted, and the petition is dismissed.


source: Caselaw Access Project

author: BENNETT, Judge:

license: Public Domain

text:
    Donald R. GRATEHOUSE v. The UNITED STATES.
    No. 328-73.
    United States Court of Claims.
    March 19, 1975.

      Ben Paul Noble, Washington, D. C., atty. of record, for plaintiff. Noble, Mann & Schoenfeld, Washington, D. C., of counsel.
    Francis H. Clabaugh, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.
    Before COWEN, Chief Judge, and SKELTON and BENNETT, Judges.
   ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

BENNETT, Judge:

Plaintiff seeks back pay and reinstatement to his position by reason of an alleged procedural error on the part of the Civil Service Commission (CSC) in failing to consider and decide plaintiff’s claim that his resignation from departmental employment was coerced. Defendant argues that the claim of duress is simply an afterthought of plaintiff’s, that he did not even raise the issue before the effective date of his resignation, and that, therefore, the agency and the CSC did not consider it and violated no adverse action procedures, as alleged by plaintiff. Defendant asks that we dismiss the claim or remand it to the CSC for a hearing on the merits of the allegation of resignation induced by coercion.

We conclude upon a consideration of the briefs, including supplemental briefs requested by the court, and upon oral argument, for reasons hereafter stated, that plaintiff is not presently entitled to back pay or reinstatement. However, pursuant to Pub.L. 92-415, 86 Stat. 652 (1972), we remand to the CSC for a hearing on the merits of plaintiff’s claim of coerced resignation.

Until his separation on September 4, 1971, plaintiff was a career Government employee (economist, GS-13, step 4) with the Department of Housing and Urban Development. On March 19, 1971, plaintiff’s supervisor informed him in detail, by letter, that plaintiff’s job performance for the past 3 years was unsatisfactory, that as a consequence an in-grade salary merit increase scheduled for June 3, 1971, was being “indefinitely withheld,” and that plaintiff’s work was “not of a caliber to merit continued employment.” Following receipt of this letter, plaintiff met with the Deputy Under Secretary, who, after hearing plaintiff’s response, advised him that he might consider seeking other employment. Subsequent efforts to secure other employment were, however, unsuccessful.

A very real concern for plaintiff during this period was that the denial of the in-grade salary increase would be a blot on his personnel record and reduce opportunities for future employment. As a result of this concern, plaintiff agreed to submit his resignation — dated May 20, 1971, though not effective until September 4 of that year — in return for his receiving the in-grade increase. This arrangement appears to have been at plaintiff’s suggestion.

On September 2, 1971, 2 days before the effective date of his resignation, plaintiff submitted a letter dated September 1 to his supervisor. The letter requested the immediate return of his resignation, and charged for the first time that the resignation had been the product of unspecified “illicit actions” and “bad faith” on defendant’s part. At a meeting of plaintiff and HUD personnel on the same day, his request for withdrawal of resignation was denied. However, plaintiff was offered a 60-day temporary appointment in order to give him more time to find another position. Plaintiff rejected the offer and he was separated on September 4, the effective date of his resignation.

Plaintiff timely appealed his separation to the CSC on September 15, 1971, alleging, for the first time explicitly, that his resignation was involuntary within the meaning of chapter 752 of the Federal Personnel Manual. Specifically, he alleged deception, intimidation, time pressure, and duress. In reply, the agency argued that the resignation was voluntary and that it had a valid reason for refusing plaintiff’s requested withdrawal of the resignation. The chief of the CSC Appeals Examining Office, noting that pursuant to FPM chapter 715, subchapter 2-3, the agency was required to “have a valid reason for denying the withdrawal,” ruled on November 4, 1971, that HUD had not stated a valid reason or communicated one to plaintiff, that his separation was therefore an adverse action, subject to 5 C.F.R. Part 752-B (1972), and that the regulations pertaining to such action had not been followed. It was recommended that plaintiff be restored to his position retroactive to September 4. The Appeals Examining Office stated that it was ruling only that there had been a procedural deficiency and that the decision “does not constitute any ruling on the merits or sufficiency of the reasons the Department may have for removing Mr. Gratehouse from the service.” We note also that the decision made no reference to plaintiff’s claim that his resignation was involuntary from its inception.

HUD promptly appealed the foregoing decision to the CSC’s Board of Appeals and Review (BAR). HUD’s letter of appeal asserted that the agency had valid reasons for refusing to permit the withdrawal of plaintiff’s resignation and reiterated that the May 20, 1971 resignation was entirely voluntary. HUD alleged, among the grounds for its action, that plaintiff’s position had been eliminated and that he had been replaced by another person with a GS-9 rating. Returning plaintiff’s resignation would thus have created administrative disruption, in HUD’s opinion. Such disruption and reassignment was sufficient to support HUD’s actions pursuant to CSC regulations and chapter 715, subchapter 2-3, of the Federal Personnel Manual (June 21, 1971):

* * * When the agency does not permit an employee to withdraw his resignation before its effective date, the agency must have a valid reason for denying the withdrawal. Among the reasons that would be valid are a showing that it would cause administrative disruption or that the job has been committed to someone else. A desire to avoid taking adverse action would not be a valid reason for denying the withdrawal. Whatever the reason, it must be explained to the employee. * * * .

Plaintiff contested HUD’s assertions.

In its decision of May 5, 1972, the Board of Appeals and Review reversed the Appeals Examining Office, finding that HUD’s stated reasons for refusal to permit withdrawal of the resignation were within required guidelines and valid. Plaintiff’s resignation, the board stated, “properly became effective on September 4, 1971.” Thus, the board did not directly address the allegation in plaintiff’s appeal that his resignation was involuntary due to intimidation and deception. This, plaintiff now says, was a procedural violation of adverse action regulations contained in 5 C.F.R. part 752 (1972), entitling him to back pay and reinstatement regardless of the merits of his claim of coercion and deception. He says that he was entitled to a hearing by the CSC on his charge. Plaintiff raises his right to a hearing for the first time in his pending motion. He did not complain to the CSC about its failure to accord him any procedural rights nor that it had failed to speak to his charge of involuntary resignation. Plaintiff’s petition to the court was filed on August 23, 1973. It was amended on April 4, 1974. Plaintiff’s motion for summary judgment was filed on July 3, 1974.

It is now hornbook law in our jurisdiction that an involuntary resignation constitutes an adverse action by the agency. FPM Supp. 752-1, § Sl-2a(l); McCormack v. United States, 204 Ct.Cl. 371 (1974); Cosby v. United States, 417 F.2d 1345, 189 Ct.Cl. 528 (1969). Where there is a nonfrivolous allegation by a Government employee that his resignation was involuntary, he is entitled, in the usual case, upon timely appeal to CSC, to a hearing before that body. 5 C.F.R. Parts 752, 772 (1972); Goodman v. United States, 358 F.2d 532 (D.C.Cir. 1966); Dabney v. Freeman, 358 F.2d 533 (D.C.Cir. 1965); McCormack v. United States, supra; Cunningham v. United States, 423 F.2d 1379, 191 Ct.Cl. 471 (1970). Where it is found that an adverse personnel action has been carried out in substantial violation of procedural regulation, it is a void action and the employee is entitled to recover any pay of which he has been illegally deprived. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Leone v. United States, 204 Ct.Cl. 334 (1974); Jones v. United States, 203 Ct.Cl. 544 (1974); Hanifan v. United States, 354 F.2d 358, 173 Ct.Cl. 1053 (1965). Exceptions are made to the rule where the procedural error is deemed harmless.

Against the background of these general rules we have the facts of this case illustrating abundant procedural blunders by both sides, sufficient to mislead both. As to plaintiff, he never argued to his department that his resignation was being coerced. He only requested, over 3 months after he submitted his resignation, and 2 days before it was to become effective, that he be permitted to withdraw it. Until plaintiff appealed to the CSC there was no reason to believe that plaintiff viewed his resignation as involuntary. His memorandum of appeal to the CSC spoke of coercion for the first time and referred to FPM chapter 752. At that point the CSC Appeals Examining Office focused on the requirement of FPM chapter 715 that an agency must have a valid reason for refusing to permit withdrawal of a resignation. In reviewing the action of the Appeals Examining Office the BAR apparently never realized that plaintiff had made a claim of involuntary resignation, for it focused entirely on the issue of whether or not the decision of the Appeals Examining Office was sustainable. This oversight is not difficult to understand in the context of events leading to the resignation and the demand for its withdrawal, for until after plaintiff left the Government payroll there was no issue about an involuntary resignation.

When the BAR decision came down, it should have been instantly clear to plaintiff that the BAR had failed to consider what plaintiff now says is his primary claim — coercion. Yet, he made no attempt to bring the oversight to the BAR’s attention. 5 C.F.R. § 772.308 (1972) provides that a party may request reconsideration of a decision where it is believed that a procedural or substantive error has been made. Plaintiff did not exhaust his opportunity to gain such reconsideration at the administrative level. If an employee sincerely feels that there has been an oversight of this kind on his appeal, yet he does not say anything about it or use the regulations designed to correct such error, questions arise as to the fairness of his failure to do so. It is unjust to keep silent and many months or even years later in a lawsuit make the point while back pay has been allowed to accumulate. We do not impute improper motives to plaintiff here but, of course, the result of what he did is the same as if he had acted deliberately to capitalize on a technical oversight to maximize his claimed damages. On the other hand, the board’s decision stated that “there is no further right of administrative appeal.” Plaintiff might fairly have assumed from this that he had no opportunity for reconsideration. As we have said, both sides contributed to this confusion and must share the responsibility for failure of the CSC to render a decision on the coercion issue. But, the comedy of errors does not end here.

At some time before plaintiff’s motion for summary judgment was filed on July 3, 1974, counsel for defendant in a telephone conversation offered plaintiff a hearing before the CSC. Defendant’s attorney emphasized in oral argument that the offer of a hearing was made as a matter of “grace,” not as an admission of any prior procedural error. He also stated that the hearing was to have retroactive effect, i. e., a decision against plaintiff on the duress question would preclude any recovery of back pay by plaintiff. The plaintiff refused the offer.

The consequences of a refusal to accept an agency’s offer to remedy a possible, though disputed, procedural error will depend on the timing and nature of the offer. We have many times held that an agency has the inherent power to reconsider and change a decision if it does so within a reasonable period of time. Recently, in fact, we applied this rule specifically to the CSC. Bookman v. United States, 453 F.2d 1263, 197 Ct.Cl. 108 (1972). In Bookman we noted at 111 (453 F.2d at 1265) that “reconsideration is often the sole means of correcting errors of procedure or substance.” We stated further:

* * * this court will sustain the reconsidered decision of an agency, as long as the administrative action is conducted within a short and reasonable time period. * * *. [453 F.2d at 1265, 197 Ct.Cl. at 112-13.]

What is a short and reasonable time period will vary with each case, but absent unusual circumstances, the time period would be measured in weeks, not years. A correction of an error within a reasonable time period will have retroactive effect, or, in other words, will preclude any cause of action based on the original error.

Where reasonable time for reconsideration has expired, there is no longer an opportunity to correct the procedural error retroactively. Vitarelli v. Seaton, supra; Manzi v. United States, 198 Ct.Cl. 489 (1972); Hanifan v. United States, supra. This is true because, generally speaking, separation of an employee in violation of procedural regulations is illegal and void, except where it is harmless error. The employee in effect was never separated, and never stopped drawing his pay. Service v. Dulles, supra; Jones v. United States, supra. In sum, where a prejudicial procedural error has been committed, and a reasonable time for reconsideration has run, the purpose of a correction of that error can only be to determine the merits of the dispute prospectively.

In the instant case, defendant’s offer of a CSC hearing 2 years after a hearing could have been held was far too late to qualify as reconsideration. Thus, plaintiff was entirely justified in refusing the offer, once it was ascertained that any decision arising out of that hearing was to have retroactive effect. Had he accepted such an offer, plaintiff would have waived any right he might have had under different circumstances to recover back pay as a result of the alleged faulty procedure.

We come down now to the two central issues of the case — did defendant violate its regulations by not affording plaintiff a prompt hearing on his claim of forced resignation made after the effective date of that resignation? And, can we, as plaintiff insists, find for plaintiff on the merits of his claim that his resignation was forced?

As to the first point, it is plaintiff’s position that regardless of when he charged coercion, defendant committed a breach of regulations since it did not afford him a hearing on his charge. He says that such a violation entitles him to back pay regardless of the merits of his claim of coercion. We note that plaintiff’s appeal to CSC was within 15 days after the effective date of his resignation and that he therein asserted facts as to coercion which, standing alone, entitled him to adverse action procedures, including a hearing by CSC. As we have said, it is defendant’s failure to accord plaintiff such a hearing that gives rise to the back pay claim. It is clear to the court from the supplemental briefs and exhibits that there was no requirement by regulation that plaintiff must first raise the issue of coerced resignation before his department before going to CSC about it, assuming timely appeal to CSC, as here. It is equally clear from regulations set forth in the HUD Handbook, § 771.3, Adverse Actions and Appeals, which plaintiff admits he had access to and knew about, that plaintiff could have claimed before his department that he was the victim of an adverse action and that he would have obtained a hearing on the charge. But, he elected to go to CSC.

Plaintiff’s claim suffers from the disability that his separation was not the result of a violation of procedural regulations by his agency. Any such violation came only after he was no longer a Government employee and on a charge of such violation raised at that time. This plainly served to confuse defendant as to what plaintiff’s real claim was, and plaintiff cannot escape responsibility for contributing to that confusion and for his failure even to call to the attention of the BAR his charge, first made in court, that it had committed what he believed to be procedural error. The standard rules heretofore referred to thus do not fairly fit the facts of this case. Additionally, plaintiff gives us no reason whatever for his failure to raise the coercion issue before he went off the payroll. If he believed he was coerced, he had several months to claim it before his resignation became effective. There is no reason to assume that had plaintiff thus exhausted his administrative remedy in the regular way he would not have been accorded all procedural rights. Plaintiff knew what his rights were all along, unlike in McCormack v. United States, supra.

In these circumstances, therefore, where plaintiff bears a heavy responsibility for his failure to receive a timely hearing on a charge he did not raise, and does not explain why he did not raise it while in defendant’s employment, and where no regulations are proven to have been violated prior to his leaving that employment, we think it is harmless error if there is any error, and that the rule reiterated most recently in Hart v. United States, 204 Ct.Cl. 925 (1974), cert. denied, 419 U.S. 1049, 95 S.Ct. 624, 42 L.Ed.2d 643 (1974), should apply:

* * * In Cohen v. United States, 369 F.2d 976, 177 Ct.Cl. 599 (1966), cert. denied, 387 U.S. 917, 87 S.Ct. 2029, 18 L.Ed.2d 969 (1967), this court held that a plaintiff is required to show “demonstrable prejudice” to support a charge of procedural error. We see no such prejudice in this case. * * * . In fact, any financial prejudice involved could be remedied, if a claim could be made out, by administrative action or under the Back Pay Act, 5 U.S.C. § 5596 (1970) * * * .

We would only add that any other rule would put a premium on form rather than substance and permit a plaintiff to recover for technical rule infractions without demonstrated prejudice flowing therefrom. We decline to recognize such a result as in the interests of proper administration of justice. Fortunately, under our procedures and jurisdiction there is a way to get directly to the merits of a serious charge such as plaintiff raises here. We turn, therefore, to plaintiff’s claim which the CSC did not face — was plaintiff’s resignation induced by coercion of defendant?

Plaintiff’s claim for back pay and reinstatement to his position, from which he claimed he was neither legally removed nor legally resigned, cannot be determined without a hearing on the merits of his allegations that the resignation was improperly induced by defendant. This is an issue of disputed fact that cannot be resolved on these pending motions. Paroczay v. Hodges, 111 U.S.App.D.C. 362, 297 F.2d 439 (1961). Plaintiff claims that he was tricked and deceived, pressured and intimidated. Defendant says that the claim is in bad faith because defendant at the departmental level addressed and repudiated all charges made by plaintiff concerning refusal of his attempt to withdraw the resignation and that these charges were dismissed by the CSC as well. Defendant says that the claim of a coerced resignation is pure afterthought since it was not raised before HUD although there was ample opportunity to do so, that it was not raised even with the CSC until about 4 months after the resignation was submitted to HUD by plaintiff, and that the issue was not raised at all until after plaintiff’s resignation had become effective. Defendant would have us conclude from all this that plaintiff has created a lawsuit by his own failures on the job and that these failures led to plaintiff’s offer to resign in order to get the step pay increase. But, we do not know and can conclude nothing from the motion papers about the quality of plaintiff’s work. Defendant also says that the claim is an afterthought because plaintiff could not find another job although'he conducted a long search made possible by his selecting a delayed date for his resignation to go into effect. Defendant offered plaintiff still additional time to job-hunt but it was refused. Defendant charges that plaintiff actually sought an extension of the resignation date shortly before he raised the coercion issue. Defendant concludes that this case is just an effort by plaintiff to reap a windfall for the consequences of his failure to perform on the job and that, in any event, he cannot be reinstated to a position that was abolished.

These contentions, of course, all require proof. As in McCormack v. United States, supra, Goodman v. United States, supra, and Dabney v. United States, supra, it is proper that this issue of whether the resignation was in fact voluntary be decided in the first instance by the Civil Service Commission to which it is remanded for hearing and decision. If plaintiff wishes to pursue the matter further he has the burden of proving that his resignation was not voluntary. Leone v. United States, supra. The criteria for deciding the issue are set forth fully in the CSC regulations, Federal Personnel Manual, and in decided cases. Pitt v. United States, 420 F.2d 1028, 190 Ct.Cl. 506 (1970); Dabney v. Freeman, supra ; Fruhauf Southwest Garment Co. v. United States, 126 Ct.Cl. 51, 62, 111 F.Supp. 945, 951 (1953).

If defendant made a mistake for which plaintiff must be compensated, it will not be because under the facts we have on the motions defendant can fairly be charged with violating regulations. It is not necessary to find such violation now for plaintiff to recover, however, if he can establish the truth of his claim of coercion. If through defendant’s oversight in not addressing one issue in plaintiff’s appeal to CSC, delay has been occasioned as to a hearing which might have been afforded sooner, it is not plaintiff who will lose thereby. If back pay is due because plaintiff sustains his claim, he will have established the prejudice he has suffered and will have to be made whole for it by defendant, back to September 4, 1971, with appropriate offsets required by law. Ainsworth v. United States, 399 F.2d 176, 185 Ct.Cl. 110 (1968); Back Pay Act of 1966, 5 U.S.C. § 5596 (1970), 80 Stat. 94.

Pursuant to our authority by rule and the remand statute, 28 U.S.C. § 1491 as amended by Pub.L. 92-415, 86 Stat. 652 (1972), the case is remanded to the Civil Service Commission for a hearing on plaintiff’s charge of resignation induced by defendant’s coercion. Further proceedings in court are suspended for a period of 6 months from this date. Plaintiff’s counsel is designated to advise the court by letter to the trial judge of the status of the remand proceedings pursuant to Rule 149(f). Attention of counsel and the Commission is also directed to Rule 150. The motion for summary judgment and cross-motion for summary judgment are allowed and denied consistent with this opinion.

      . FPM Supp. 752-1, § Sl-2a(l) (1972), states, in pertinent part:
      “ * * * [A] normally voluntary action — i. e., a resignation, optional retirement, or reduction in rank or pay at the employee’s request — is an adverse action if it is obtained by duress, time pressure, intimidation, or deception. * * *

      . Plaintiff’s first amended petition charges that he was separated on the basis of agency action alleged to be arbitrary and capricious and in violation of agency law and regulation. Plaintiff’s motion for summary judgment is limited, however, to the rights of plaintiff by reason of failure of CSC to accord him his procedural rights to a hearing on the merits of the allegation that his resignation was void and illegal because obtained by duress. This opinion is limited to this issue raised by the motion.

      . Haynes v. United States, 190 Ct.Cl. 9, 418 F.2d 1380 (1969); McCallin v. United States, 180 Ct.Cl. 220 (1967); Creamer v. United States, 174 Ct.Cl. 408, cert. denied, 385 U.S. 819, 87 S.Ct. 42, 17 L.Ed.2d 57 (1966); Greenway v. United States, 163 Ct.Cl. 72, 80 (1963), 175 Ct.Cl. 350, cert. denied, 385 U.S. 881, 87 S.Ct. 167, 17 L.Ed.2d 108 (1966). A prejudicial procedural error is not rendered harmless, however, because the merits of the dispute appear to be clearly against the employee. Bell v. United States, 366 U.S. 393, 81 S.Ct. 1230, 6 L.Ed.2d 365 (1961); Hanifan v. United States, 354 F.2d 358, 173 Ct.Cl. 1053 (1965); Garrott v. United States, 340 F.2d 615, 169 Ct.Cl. 186 (1965).

      . On the other hand, we do not believe that the Government is helpless to prevent the continuing cumulation of back pay during litigation where the Government is charged with violation of procedural regulations. If defendant offers, in writing, to correct the procedural shortcomings alleged by an employee, which will have prospective effect only, then a refusal of that offer by a plaintiff would, we think, limit his period of recovery to the date of that offer. Whether such an offer is or is not accepted, defendant may continue its defense in this court of the procedures employed in the initial decision. If a stay of proceedings in this court were required while the corrected procedures went forward, it would be freely given in appropriate circumstances.