dissenting:
I cannot agree with the decision of the majority because I believe that an injustice has been done in this case.
The sole question before the court is whether the plaintiff Ruth Christie voluntarily resigned her position with the Navy’s Bureau of Aeronautics or whether the agency forced her to resign against her will by coercion, intimidation, and duress so as to make her resignation involuntary. I am firmly convinced that her resignation was coerced.
The plaintiff was a five-point veteran’s preference eligible employee under the provisions of the Veterans’ Preference Act of June 27, 1944, 58 Stat. 387, as amended, 5 U.S.C. §§ 1302, 2108, and 3309. She founded and organized the Bureau and headed it from 1944 to 1968. In 1968 a Mr. F. M. McNeal was made civilian head and in 1971 a Mr. A. J. McGuckin was made plaintiff’s immediate supervisor. Neither man had had any prior experience in the work. The facts show that these two men began a course of harassing conduct toward the plaintiff to provoke her and to eventually get rid of her regardless of the means or the cost. From then on her doom was sealed, and it was only a question of time until a situation could be created on which charges could be brought against her. That opportunity came when McGuckin provoked her to anger and she inadvertently touched his shoulder with her fingers. As a result, plaintiff was charged with “attempting to inflict bodily injury on your supervisor.” *344Such, a charge was ridiculous on its face. McGuekin was in about as much danger of bodily injury on that occasion as an elephant would be if touched by a gnat or a fly.
The harassing treatment the plaintiff received at the hands of McGuekin and McNeal was totally unjustified. Fellow employee Robert Clark said her treatment was “grossly unfair, if not illegal.” Another employee, Richard Kreider, said the treatment Miss Christie received was “contemptuous,” but that she “was very capable, had the respect of her fellow employees, and did nothing to warrant this treatment.” He said further “this was a pure and simple case of sex discrimination.” (She was the only woman employee, except clerks and secretaries.) Nevertheless, McGuekin and McNeal forced her out regardless of the cost. The time has now come for the cost to be paid.
The plaintiff alleges in this case that the charges arising out of the McGuekin incident were planned, contrived, and ridiculous, and that she had no intention of inflicting any bodily injury on McGuekin; that the charge was held over her head to force.her to resign; and was not dismissed until after she resigned; that she was threatened with removal from her job on the charge and was told that if she was so removed she would forfeit all of her retirement benefits that she had earned with 29 years of service (which was of course a misrepresentation and. false) ; that in any event she would be removed in a reduction-in-force program (which was false); and that she could sign a resignation form and still appeal her removal (which was false) ; and that her resignation was not voluntary but was induced by deceit, duress, intimidation, coercion and time pressure. The defendant filed a motion for summary judgment thereby admitting the foregoing allegations of the plaintiff to be true. Under these circumstances, there is no way that the Government is entitled to a summary judgment.
Faced with the above threats, deceitful and false misrepresentations, pressure, contrived charges, coercion, duress, intimidation, and time pressure, the plaintiff had no choice except to sign the resignation form. She was forced to choose on the one hand between what she believed to be the utter disaster of losing her job in disgrace along with her 29 year *345earned retirement annuity, and on the other hand a hare living on discontinued service retirement. She had a choice, as the poet says, between “death and exile,” a choice between the “guillotine and the hangman’s noose,” a choice between “Scylla and Charybdis” (in avoiding one monster you fall prey to another. See Homer Od. XII. 73,235, 430 and Gautier de Lille Alexandreis (circa 12).) It is clear that plaintiff had no choice except to sign the resignation form. The “freedom of choice” required by the regulations below was absent. Under these circumstances, plaintiff’s resignation was not voluntary. Defendant’s regulations so provide. The regulations are as follows:
Federal Personnel Manual Supplement 752-1, Sub-chapter Si, Adverse Actions by Agencies (February 4, 1972).
2a (1) Separations and reductions in rank or pay voluntarily initiated by an employee are by their very nature actions which do not require the use of adverse action procedures. On the other hand, a normally voluntary action — i.e., a resignation, optional retirement, or reduction in rank or pay at the employee’s request— is an adverse action if it is obtained by duress, time pressure, intimidation, or deception. Whether an action is voluntary or involuntary is determined not by the form of the action but the circumstances that produced it.
(2) The Commission holds that an action requested by an employee is voluntary only if the employee has freedom of choice. The general principle is that an action is voluntary if the employee is free to choose, understands the transaction, is given a reasonable time to make his choice, and is permitted to set the effective date.
(3) ■* * * [/]/ the agency uses deception, duress, time pressure or intimidation to force him to choose a particular course of action, the action is involuntary.
Sl-2b. (4). Employee does not set effective date. An action is imwolnmtary if the employee does not set. the effective date. The agency may point out the desirability ox another date, but it may not arbitrarily set an earlier or later date and have the action remain a voluntary one. [Emphasis supplied.]
These regulations plainly provide that:
* * * [A] resignation * * * is an adverse action if it *346is obtained by duress, time pressure, intimidation, or deception. * * *
All of these elements are present in the instant case. Yet the majority holds that the resignation was voluntary. This is contrary to the facts.
Furthermore, the regulations provide that the resignation is voluntary:
* * * [0]nly if the employee has freedom of choice. * * *
There was no freedom of choice in this case.
But there is more. The regulations provide:
* * * [I]f the agency uses deception, duress, time pressure or intimidation to force him [her] to choose a particular course of action, the action is involuntary.
In the face of the Government’s admission by the filing of its motion for summary judgment in this case that the agency used deception, duress, time pressure and intimidation to force the plaintiff to sign a resignation form, it is difficult to understand how the majority can hold that the resignation of the plaintiff was voluntary. Even without the Government’s admission, the facts affirmatively show that her resignation was involuntary.
Under the circumstances pointed out above, the resignation form the plaintiff was forced to sign was an adverse action. Therefore, the agency was required to treat it as such and conduct an investigation and accord the plaintiff a hearing. Neither course was followed. The agency clearly violated its own regulations. This violation was made all the more evident by the fact that when the plaintiff signed the resignation form and delivered it to the agency she notified and advised the agency that she was signing the resignation because of coercion and duress by the agency. This information put the agency on notice of her coercion and duress claim, but it ignored these facts and denied the plaintiff the protection guaranteed to her by the regulations.
It should be pointed out that the agency violated its own regulations in another particular. The regulations quoted above provide that:
* * * An action is involuntary if the employee does not set the effective date, [for retirement] * * * [B]ut it *347[the agency] may not arbitrarily set an earlier or later date and have the action remain a voluntary one.
In this case this regulation was clearly violated because the agency arbitrarily set three different dates for the resignation of plaintiff to become effective without consulting with the plaintiff as to the dates it selected and without allowing the plaintiff to “set the effective date.” This was a direct violation of the regulations by the agency.
We have often held that a violation by an agency of its own regulations voids an action taken by it against an employee. Here we have not one but several of such violations.
The majority cites cases where we have held that resignations by employees were voluntary and that they were not entitled to any relief. However, a close examination of those cases show they are distinguishable on the facts. The Government anticipated such situations when it promulgated the regulations quoted above that provide that each case depends on its own facts, as follows:
* * * Whether an action is voluntary or involuntary is determined not by the form of the action tut the circumstances that 'produced it. [Emphasis supplied.]
Consequently the cases cited by the majority are not controlling here. The instant case is more like the facts in Perlman v. United States, 203 Ct. Cl. 397, 406-08, 490 F. 2d 928, 932-33 (1974) that the combination of the acts of the Government denied freedom of choice to the plaintiff as to his voluntary retirement.
The majority have undoubtedly been influenced by those resignation cases where we have denied relief, in which I joined, where the employee was guilty of overreaching or was attempting to gain an undue advantage by resigning. This is not such a case. The plaintiff was not guilty of any such overreaching nor was she trying to gain any extra benefits by resigning. On the other hand, she was bitterly opposed to resigning. She was merely trying to keep body and soul together. She was led to believe by the misrepresentations and coercion of the agency that the only way she could do this was by resigning. There was no way that she could profit or benefit by resigning. The overreaching and unconscionable conduct all occurred on the part of the *348agency. In short, she was forced ont against her will. This sort of conduct should not be condoned, much less approved.
In this case the plaintiff requested a hearing on whether or not her retirement was voluntary (see affidavit of Mr. Carstater, her representative before the Commission, attached to her cross-motion for summary judgment and plaintiff’s appeal letter of June 27,1972). The Commission denied the hearing request, even though plaintiff pointed out that she was entitled to due process. This was clear error. See Arnett v. Kennedy, 416 U.S. 134 (1974) where the Supreme Court held in no uncertain terms that a Government job was property and that because of the due process clause it could not be taken from a Government employee without a hearing “at some stage of the proceeding.” The decision of the Commission denying such a hearing in this case clearly violates the due process clause of the Constitution, and the opinion of the majority in approving this denial falls into the same error. See the following additional cases holding that property may not be taken from a citizen without a hearing: Connell v. Higginbotham, 403 U.S. 207 (1971) (loss of a state job); Goldberg v. Kelly, 397 U.S. 254 (1970) (loss of welfare payments); Morrissey v. Brewer, 408 U.S. 471 (1972) (revocation of a parole); Wolff v. McDonnell, 418 U.S. 539 (1974) (cancellation of a prisoner’s good-time credits); Bell v. Burson, 402 U.S. 535 (1971) (cancellation of a driver’s license); Board of Regents v. Roth, 408 U.S. 564 (1972) (damaged reputation and standing); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) (garnishment of wages); Fuentes v. Shevin, 407 U.S. 67 (1972) (seizure of mortgaged property); and Goss v. Lopez, 419 U.S. 565 (1975) (suspension of school children).
It is obvious that the agency violated its own regulations in several respects; that the resignation of plaintiff was obtained by the agency through deceit, intimidation, misrepresentation, time pressure, duress and coercion (within the meaning of Fruhauf Southwest Garment Co. v. United States, 126 Ct. Cl. 51, 111 F. Supp. 945 (1953)); and that the agency denied the plaintiff due process as required by the Constitution in refusing to grant her a hearing as to the voluntariness of her resignation.
*349Accordingly, I would allow plaintiff’s motion for summary judgment and enter judgment for the plaintiff, 'awarding her back pay plus other appropriate benefits and restoring her to her position, and I would deny defendant’s motion for summary judgment. I would remand the case to the trial judge to determine the amount of plaintiff’s recovery under Rule 131(c).