Ann L. (hunger) Colhoff, Petitioner, v. U. S. Department of the Interior, Respondent, 641 F.2d 608 (8th Cir. 1981)

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US Court of Appeals for the Eighth Circuit - 641 F.2d 608 (8th Cir. 1981) Submitted Feb. 10, 1981. Decided March 4, 1981

Stanley E. Whiting, Day, Grossenburg & Whiting, Winner, S. D., for petitioner.

Terry L. Pechota, U. S. Atty., Sioux Falls, S. D., for respondent.

Before ROSS, HENLEY and McMILLIAN, Circuit Judges.


This is an appeal by Ann Colhoff from an adverse decision by the Merit Systems Protection Board. This decision approved the decision of its Presiding Official, upholding a twenty-day suspension of Colhoff resulting from an alleged breach of Social Services regulations in approving the applications of seven persons who did not meet eligibility requirements for general assistance funds.

The Presiding Official held a hearing on May 17, 1979, and issued her initial decision on June 5, 1979. Colhoff then filed a petition for review with the United States Merit Systems Protection Board. It issued its final decision upholding the Presiding Official's initial decision on May 14, 1980. Colhoff then appealed to this court pursuant to 5 U.S.C. § 7703(b) (1).

Colhoff is a Social Service Representative for the Bureau of Indian Affairs at the Rosebud Agency in Rosebud, South Dakota. On January 31, 1979, Colhoff received a letter from the administrator of the Public Health Service in Rosebud which requested that she provide assistance to employees of the Public Health Service who had not received salary checks since December 31, 1978, because of some accounting malfunction in the central office. Colhoff then processed and approved the claims of seven applicants in the total amount of at least $407.1  She did this without the approval of her supervisor. On February 21, 1979, Superintendent Keller wrote Colhoff suspending her for twenty calendar days from her position as Social Services Representative for improperly approving emergency assistance to the seven applicants. Area Director Zephier approved the action of Mr. Keller on March 29, 1979. The matter was then processed as set forth above by the Merit Systems Protection Board (MSPB).

The question presented the MSPB was whether an individual whose family earnings make him or her ineligible for general assistance, becomes eligible when that individual's salary check is late in arriving due to administrative error. The Presiding Official found that it was error for Colhoff to consider only the income actually received by the applicant for the month of January 1979, and that Colhoff failed to consider the applicant's total resources, including income that had accrued but which had not been received. Based on this, the Presiding Official found that "the agency's action was taken for such cause as will promote the efficiency of the service." As heretofore indicated, this initial decision was then formally approved by the MSPB.

We have studied the record and the briefs and have concluded that the Presiding Official was correct in her application of the law to the facts of the case. We therefore affirm the MSPB on the basis of the Presiding Official's initial decision of June 5, 1979, and the final opinion and order of the MSPB dated May 14, 1980.

Each party shall pay its own costs in this court.


Claims in the amount of $1,168 were initially approved but Colhoff retrieved some of the authorizations totaling $761