Jane Doe v. Robert E. Hampton, Individually and as Chairman, U. S. Civil Service Commission

TAMM, ROBB, Before ROBINSON Judges. Circuit TAMM, by Judge. filed Circuit Opinion ROBB, by filed Cir- Concurring Judge. cuit by Dissenting opinion filed SPOTTS- ROBINSON, III, Judge. W. Circuit WOOD TAMM, Judge: Circuit case to We summoned summary judgment review the award of a civil-service against federal dis grounds job her on of mental missed from judgment disability.1 We vacate that case to the district court for a remand the provi a determination whether certain sion the Civil Service Commission’s Fed regulation eral Personnel Manual a bind upon employing agency, if ing such, a further determina found for agency substantially tion of whether it. complied with I pseudonymous appellant for Our GS-3, employed clerk-typist, as a merly was in the Office Research Technical (ORTS), Engraving Bureau of Services Printing (Bureau agency), Department Treasury. by Hired the Bureau in job new June of came employment years prior with two federal protection enjoyed and thus civil-service employee. federal For non-probationary Bureau, months with the ap her first few Cornell, C., pellant performed appar her duties without Washington, D. for Robert B. difficulty. In October for in- ent appellant. upon might predicated alleged complaint jurisdiction have been in the dis- diction 1. The evaporated former basis has after Su on both trict court to entertain this suit based Sanders, gen- preme decision and the Court’s Califano the Administrative Procedure Act statute, question 51 L.Ed.2d U.S.C. eral federal complaint clearly (1977), survives L. amended Pub. No. juris- 21, 1976). (Oct. Although the latter. Stat. 2721 ness-for-duty descriptive perform- stance, received examination4 order she to as- with a qualified” of “well ance her suitability evaluation certain for continued em- rec- requirement near-perfect performance ployment.5 Appellant agreed to have this later, months how- Some ord.2 examination, and, Record a general after physical emotional ever, to exhibit an began she examination the day before a Dr. Tre- sever- required thereafter instability which mols, she one-time, underwent a 45-minute hospitalization3 lengthy al absences psychiatric examination conducted a Dr. claims, and, frequently disrupt- Valle, III, April 17, Calixto 1973. Dr. job effec- ed and reduced her office routine Valle, who never had occasion to reexamine tiveness. appellant, diagnosed her condition as “schiz- ophrenia, chronic-undifferentiated, problems continued with compen- When these surcease, in March sated” concluded that she agency, occasional “not fit undergo duty fit- at this directed time.” Dr. Valle’s medical course, estopped following your 2. is not from Of an Your work deteriorated re- discharging turn, possibly heavy an for “cause” where its tranquilizing due to only per- employee’s of the written evaluation sit, staring medication. You would into satisfactory. unsatisfactory formance is performance An space and go have to be reminded to ahead generally pre evaluation is not a your you duties. Even when “normal” requisite Cullen, to removal. See Seebach you performing avoided tasks disliked. You 663, (9th denied, Cir.1964), cert. spent an undue of amount time out of the 972, 1331, U.S. S.Ct. very office and performing your were slow in (1965); Angrisani 172 Ct.Cl. required supervision You work. constant Ward, also Thomas you and instructions which failed to follow. App.D.C. 225 F.2d 953 7, 1972, you again hys- On December became 350 U.S. (1956). 100 L.Ed. 833 office, laughing in sobbing terical unnaturally, and speech, incoherent in and disori- Again you n.2; ented. were referred 3. See Brief at 3 text accom- to St. Government’s Eliza- panying Hospital you note 25 infra. beths’ [sic ] where remained as inpatient January an until 1973. You re- 4. a The memorandum directive to take fitness- duty January 12, turned to on 1973. Your examination, for-duty written the Bureau you very disrup- behavior since returned is Relations, Employee Head of contained fol- uncooperative You tive. have become and lowing allegations disruptive behavior: January on ordinate, 12 and 13 bordered on the insub- I have that this directed examination be con- refusing perform assigned to your duty ducted to determine for fitness February 5, you again disrupted task. On your periodic disruptive because continued office, began sobbing very and seemed problems behavior which causes undue to depressed. necessary you It was to send the small staff this office and creates con- home. On March 1973 Dr. Cook entered in work fusion area. Your erratic behav- approximately Room 106 at 8:20 a. m. and apparently prob- ior stems from an emotional you sitting your giggling found at desk and you lem for which receive treatment and laughing hysterically. This action was still continuing at 8:30 a. m. Dr. Cook advised Hospital. medication at St. Elizabeths’ [sic] your problem seriousness first became you go to they apparent when, Health Unit and January sent to office on you stayed you hysterical home in a working Bureau car. You became while out inventory Friday, currency reported on an on March with Mr. Burnell. for hysterical, throwing currency Monday, You became work March 1973 on which air, intermittently sobbing laughing you spent portion staring date space a of time into unnaturally. you Efforts to calm were un- doing Hospitalization no work. you successful and were taken ambulance lasting and treatment have no had effect. George Washington Hospital. The next 18-19, Record 96-97. day you work, hys- again returned to became By requested 5. the time the this exami- terical, your and had be taken to mother’s nation, outpatient had under been home. Your behavior was the same fol- weekly Hospital treatment at St. Elizabeth’s for lowing day. family Your was contacted and year, one least Record and had been they your stated aware of condition and from absent work on numerous every occasions due precaution you would take to see got periods proper illness treatment of her illness psychiatric medical and care. totaling approximately days, January You ruary 14, see were absent from until Feb- id. at 61- during you 64; following re- time text note 25 infra. ceived treatment at D. C. General and St. Hospitals. Elizabeths’ [sic] this is a chronic advised of these two above- Scorzelli consisted he concurs with these find- condition and conclusions, at the bot- jotted down quoted Id. (You disability ings. eligible form. official examination tom you inasmuch as do not “impres- retirement unelaborated medical 48-50. This Service.). years of Federal five incorporated report into was then sion” which, turn, in” was “concurred Record N. physician, Unit own Health Bureau’s Dr. orally responded to this notice Appellant Id. V. Scorzelli.6 writing. Her written communica- and in em- finally

The Bureau notified tion transmitted mental status placing prepared ap- her removal and seeking ployment capacities report, that it was leave-without-pay pending pellant’s request by status another Public Health Bernet, separation proceedings Dr. F. Wm. psychiatrist, within Service conclusion “with continued prognosticated Her removal notice reiterated which agency. be [appellant] in the fit- will therapy set forth earlier medication allegations directive, see and recommended that she employable” ness-for-duty job at the Bu- permitted to return to her supra, further: note added Id. receiving this reau. 86. Soon after disruptive your periodic Because of be- Employee report, Bureau Head problems which causes undue havior met with Dr. Scorzelli and Relations Branch staff this office and creates the small nursing agreed proceed his assistant and Chief, area, I confusion the work [the since, not- proceedings with the removal you directed take fitness-for- ORTS] conclu- Dr. Bernet’s favorable withstanding letter of March duty by examination opinion that, sion,7 “it was the consensus of specifics your 1973. This letter states as condition is chron- [appellant’s] inasmuch as a part erratic behavior and is attached ic, lasting improvement there would be no notice of removal. You proposed of this . .” Id. 81. finally was Appellant to have this examination conduct- elected her on separated agency from June ed Health Service and Public grounds that she was not fit for represent your named sister ... necessary was duty and that her removal protect- rights you your to see w.ere of the service.8 Id. promote efficiency ed. 78-79. May In a dated memorandum Scorzelli, appeal Dr. V. Medical Officer Post-termination administrative N. Bureau, proceedings this then commenced her behest. charge of Health Unit of Chief, Office of See 5 C.F.R. adjudica- . Part 771 An informed . [the] Relations, tory that he had received was held at hearing Industrial independent Appeals Public Health before an September from the United States Examiner, during parties results of the which both sub- Outpatient Clinic Service testimo- fitness-for-duty examination conducted in mitted evidence and introduced the Valle, ny witnesses, prac- was Dr. con- of various your case. The ex- psychiatrist, among them. The ticing Dr. G. Tremols ducted Jose [sic] [Dr. that the subsequently was aminer recommended diagnostic whose conclusion Valle] as upheld removal action be warranted your you “that mental condition due appli- and in compliance time.” Dr. the evidence duty fit for this apparently psychia- apparently there not a 8. After March 6. Dr. was Scorzelli trist, appellant’s job complaints no the record furnishes basis no further about competent fact, concluding general performance that he was otherwise her or demeanor. expressed supervisor render such concurrence. her chief satisfaction with improved Dr. exami- condition after Valle’s opinion 205; Dr. “with continued 7. Bemet’s see Record 39. Tr. nation. [appellant] therapy will medication be em- by agency ployable” interpreted officials signifying permanent as “that there will be no Record 81. solution for her condition.” requirements, as and this rec- ment to make procedural possibility cable adopted by ommendation was their probability being hazard February decision in its final themselves or others. then proceeded next Appellant Id. 23. available administrative stage of her reme- A final appeal administrative was then dies, by appealing see id. Part Appeals taken to the Commission’s Review agency’s decision to Civil Service Com- (ARB)10 Board which affirmed the AEO’s Examining (Commission) Appeals mission’s decision, concluding that the AEO’s action (AEO), ultimately Office which sustained in submitting case file appellant’s to Dr. procedurally the decision as reasonable and Eck for an medical opinion additional had sound. The chose not to confine its AEO been proper and that the AEO’s decision record, existing however,

review to had been an one independent based on its apparently had counsel antici- reasonable evaluation of the record evi- pated. Record 26 Compare with id. dence. Instead, it and received the sought addition- Eck, of a Dr. al medical Chief of the finally With her administrative remedies Retirement, Bureau of Insurance and Occu- exhausted, 772.307(c) (1974), see 5 C.F.R. § pational Division, Medical Health’s on the appellant brought suit in the district court “the question whether observed deficiencies seeking the declaratory, injunctive, usual performance, [appellant’s] outlined compensatory proved relief. This una- above, to her diagnosed are attributable vailing, however, judge grant- for the trial condition; disabling and whether this condi- summary ed the motion for Government’s tion would make the a hazard to judgment upon consideration of the plead-

herself or others.” Id. 25. Dr. Eck’s medi- ings, for summary cross-motions judgment, statement, cal was later incorporated Undeterred, and the record. administrative affirmance, into the opined AEO’s only that appellant has the usual followed course the observed deficiencies other ac- availing duplicative herself of a appeal to diagnosed tions are a result of her mental court,11 once arguing again that illness. psychiatric findings in the comply applicable failed to with per- meager paranoid file9 reveal or halluci- regulations, sonnel that its decision was ar- natory elements, and for this reason could irrational, bitrary and and that the AEO’s conclude that condition is not a haz- communication Dr. Eck ard to denied However, appel- herself others. or sui- cide and lant the due danger process homicide of which she was schizo- enti- phrenia, and it a most is difficult assess- tled. “psychiatric findings presum- Brown, 222, 9. The U.S.App.D.C. the file” Goldwasser v. 135 ably something 224, 1169, included more than Dr. Valle’s 417 F.2d 1171 n.1 cert. de abbreviated nied, conclusion based on a 45-minute 922, 918, 397 U.S. 90 S.Ct. 25 L.Ed.2d 103 year previous. session more than Dr. Eck (1970); 96, Macy, 93, U.S.App.D.C. Scott v. 131 personal knowledge had no of what- 644, (1968). 402 F.2d 647 n.6 Without belabor- States, soever. But cf. v. Jenkins United 113 further, ing point only we would invite 304, U.S.App.D.C. 300, 637, (1962) 307 F.2d 641 practicable attention to the drawbacks of the (en banc). arrangement current as manifested the al- two-year filing most duration from the reorganization appeals 10. Due to a of func- instant action in the district court and its oral tions, replaced the ARB the Commission’s court, argument only before this with the inter- Appeals during pend- Board of and Review vening noting having event worth ency been an appellant’s appeal. of administrative summary judgment employing award of for the previously questioned utility

11. We have of expla- without or memorandum present system duplicative judicial re- generally Stoll, nation. See Johnson & Judi- actions, personnel per- view federal with no Employee cial Review of Federal Dismissals ceptible See, g., Secretary effect. e. Polcover v. Actions, and Other Adverse 57 Corn.L.Rev. 338, 340-343, Treasury, U.S.App.D.C. 155 178, (1972). 188-97 1223, denied, 477 F.2d & n.11 1225-28 cert. 414 1001, 356, (1973); U.S. 94 38 237 S.Ct. L.Ed.2d

271 scope, judicial whatever exact review in its II is’ necessarily federal courts limited. claims, upon appellant’s passing not sit judges Federal do as ombudsmen cognizant of. confines we must remain relations,13 government nor do employment the transition from of our review. While indulge substituting our the conceit reviewability ad unreviewability12 ad libitum for that of the judgment own against actions federal em verse personnel Rather, we agency.14 concern ourselves legacy disagree of some ployees has left personnel insofar as is business cases, reported ment confusion chal- necessary to assure the action (1) that, arbitrary capricious;15 or reasonably lenged is at least well-settled is not States, 166, 170, 533, (1965); App.D.C. g., 257 Eberlein v. U.S. 358 F.2d 537 12. See e. United 82, 12, 32, 33, 84, (1921) (“It Hodges, U.S.App.D.C. 66 140 42 S.Ct. L.Ed. Pelicone v. 116 754, (1963). in such the action of execu F.2d settled that cases 320 755 subject recently, many perhaps tive is not to revision in the officers More most of the courts.”); Baughman, U.S.App. judicial reviewing personnel v. 100 Green decisions adverse 187, 190, 610, 613, denied, 243 F.2d cert. apply, apply, D.C. actions or at also least claim 819, 25, (1957); 78 S.Ct. 2 L.Ed.2d 35 See, 355 U.S. e. so-called “substantial evidence” test. Forrestal, 53, 54-55, U.S.App.D.C. 85 Carter v. Service, g., Alsbury States 530 Postal 364, denied, 832, U.S. 175 365-66 cert. 338 F.2d 852, denied, Cir.), (9th F.2d 828, 854 cert. 429 U.S. 47, (1949). L.Ed. 70 94 507 S.Ct. 85, (1976); 97 50 L.Ed.2d Polcover S.Ct. 91 Treasury, Secretary supra, v. 477 F.2d at Wood, 341, See, Bishop g., 426 U.S. e. v. 1226-27; Administrator, Moore v. 155 U.S. 349, 2074, (1976); Ma 96 S.Ct. 14, 17, App.D.C. 1283, 475 F.2d 1286 Treusdell, U.S.App. zaleski v. No. 183 States, (per curiam); v. 412 Charlton United - -, 701, (1977). 562 722 F.2d D.C. 390, (3rd 1969); Vigil F.2d v. Post 395 Cir. 921, (10th 1969); Dept., F.2d Office 406 924 Cir. Park, to Preserve Inc. v. 14. Citizens Overton 217, 232, Macy, U.S.App.D.C. Meehan 129 v. 814, Volpe, 91 401 U.S. S.Ct. 28 837, 822, grounds, 392 F.2d modified on other (1971). 136 L.Ed.2d (1968); 425 138 F.2d 469 Hal Nitze, sey (4th Cir.), v. 390 F.2d cert. completely ap- what clear It is still not denied, 20 L.Ed.2d 392 U.S. be, judicial any, propriate if formula should (1968); Caplin, Finfer v. 344 F.2d supporting agency the evidence find- review of denied, (2d Cir.), cert. 86 S.Ct. ings personnel actions. Earlier in adverse (1965); L.Ed.2d Camero v. United always scope characterized cases almost 345 F.2d 170 Ct.Cl. assuring procedural limited to com- review as pliance legal requirement source for this that an arbitrary applying so-called personnel supported adverse federal action be Pauley capricious g., v. test. See e. however, by substantial evidence is far from 1969); (7th F.2d Cir. instance, under clear. For the Administrative Zuckert, (7th v. Cir. Brown Act, Procedure the substantial evidence test is 1965), subject limited to and 557 cases sections 556 McTiernan Gro L.Ed.2d statute, codified, of that or otherwise re- 1964); nouski, (2d Eustace Cir. 242, quired reviewed on to be the record of Day, 114 (1962) (per agency hearing provided by 5 247, curiam); Jenkyns statute. U.S.C. v. 247 Bd. of 706(2)(E) (1970). 64, 65, involving Education, U.S.App.D.C. § Decisions 294 111 F.2d employees 260, (per curiam). “selection or tenure” of are (1961) federal See also Seebach 261 expressly application Cullen, (9th 1964), excluded from of sec- F.2d 665 Cir. v. 338 554(a)(2), tions id. §§ 14 556 380 U.S. 85 S.Ct. requires (1965). and no other statute that an or 268 L.Ed.2d hearing Civil Service record, hold a on the Commission finding Although is that a decision 7501, 7512, though see id. §§ Commis- capricious” clearly “arbitrary must rest or do, 771.307(b) regulations sion (1977). 5 § C.F.R. corollary upon finding that the relevant fac- (1970) 8251(b) also 16 assertedly See U.S.C. § is tors decision (FPC); 160(f) evidence, (NLRB). 29 id. supported see based are some practicability, may Park, As a matter of Inc. v. to Preserve Citizens Overton reviewing much matter how courts choose Volpe, supra, at least one other this court and they Labels, experience apply. label the appropriate scope tests review have described us, utility analytical tells have much including seldom both a determination ration- as ality just may evidentiary judges lead into a seman- as often decision and of the Bog. it, emphasis’ action support perhaps only tic While adverse Serbonian an for sake. See, supported by Macy, record g., substantial Jenkins v. 357 67-68 evidence e. Freeman, may 1966); arbitrary capricious, (8th Dabney Bowman 123 still v. Cir. of Dr. the medical conclusions conformity with relevant between (2) was reached deficiencies asserted and the observed Valle was not requirements;16 procedural removal. grounds justifying appellant’s otherwise unconstitutional.17 23-26. The AEO and Appellant’s Brief the district that of review, as Our requisite caus- both concluded that ARB scrutinizing us, limited is before court established, satisfactorily al link had been accreted record administrative agree. along its tortuous proceeds action adverse of ap levels various through up course In law as well as logic, there must and, held,18 hearing novo No de peal. be a clear and direct relationship demon review case, least our particular strated between the grounds articulated the ultimate undertaken record is personnel adverse action and either the employee’s ability accomplish the Govern determining whether his or her aim duties satisfactorily or some other legiti summary judgment its entitled ment was governmental mate promoting interest having law, parties as a matter “efficiency of the service.”19 Absent below proceedings during the agreed effect nexus between the “cause” asserted —here outside of issues no factual there mental disability “promotion of the —and Fed.R.Civ.P. record. certified service,” efficiency of the the adverse ac Washington, 168 U.S. 56(c); Bouchard arbitrary tion must be condemned as 402, 405, 514 F.2d App.D.C. capricious for want of a discernible rational g., See e. basis.20 Norton v. Macy, Ill 214, 220, U.S.App.D.C. 417 F.2d A (1969) (alleged homosexual advance); Scott Appellant first argues that the Bureau v. Macy, failed to establish any rational 205, 208, connection 121 U.S.App.D.C. Transportation, Freight Perry Sindermann, Inc. v. Arkansas-Best 408 U.S. Inc., System, (1972); S.Ct. Zuckert, Powell v. L.Ed.2d 447 for instance if there is no 366 F.2d 634 grounds rational charged connection (1966) (fourth between violation); Swaaley amendment assertedly and the interest served v. United 180 Ct.Cl. 1 proceeding against employee, see, g., e. violations). (1967) (alleged first amendment Macy, Norton v. Secretary Treasury, supra, 18. Polcover v. F.2d 1161 Mindel v. Civil Service 477 F.2d at 1226. Comm'n, F.Supp. (N.D.Cal.1970); but Alsbury Service, see supra, v. United States Postal requirement long-standing. (“dismissal This is one of 530 F.2d at sup- g., Ann.Rep. (1926) (“A ported by See e. 43 U.S.C.S.C. substantial evidence and thus was arbitrary capricious”), neither cause sufficient to warrant a removal must be nor an action arbitrary capricious personal logically is not or and such as to render evidentiary position occupies.”). must have some if not substantial him unfit for the he support require in the record. To more evi- dence than would be sufficient for a decision requirement salutary 20. The nexus serves the pass arbitrary capricious muster under the helping against per- end to ensure abuse of 706(2)(A) is, effect, test of 5 U.S.C. § regulations by mandating sonnel that an ad- generous judicial invent a more personnel review of these verse action be taken for reasons that are reviewing matters than the courts directly legitimate governmental related to a Accord, Hamp- entitled to. Wroblaski v. interest, job performance. such as As a corol- ton, (7th 1976); Cir. Charlton lary, unjustified gov- it also serves to minimize States, supra, 412 F.2d 395-400 private ernmental intrusions into the activities (Stahl, J., concurring). employees. of federal Seaton, g., 16. See e. Vitarelli v. 359 U.S. particular job The nature of the as much as 1012, (1959); S.Ct. 3 L.Ed.2d Service v. allegedly justifying the conduct bearing the action has a Dulles, 354 U.S. 1 L.Ed.2d necessary relationship on whether the (1957); Hargett Summerfield, v. 100 U.S. question obtains. The thus becomes whether App.D.C. grounds action, the asserted for the adverse if S.Ct. L.Ed.2d 1137 evidence, supported by directly found would employee’s ability per- relate either to the to g., Doyle, approved 17. See e. Board of Education agency’s ability v. form tasks or to the assigned to fulfill its mission. perform to nor permitted medical conclu- (“immoral” conduct the employee’s physical sions about condi- ‘occupa- “related shown to be must be ”); taking tion is sufficient cause for adverse fitness’ Mindel competence or tional Commission, agency The Civil action. must establish a link States Service (N.D.Cal.1970) (meretricious ro (i) the medical conclusion and F.Supp. between mance). generally Gayer Schlesinger, in work perform- observed deficiencies 172, 180, 183, employee or (ii) high ance or behavior (1973) (homosexuality). 748-51 of hazard when the probability disabling may injury condition result the em- requirement is artic- This so-called nexus or of ployee others because kind degrees particularity of varying with ulated employee When agen- work the does. an laws, poli- regulations, the throughout clearly cy high probability can show of system.21 the civil service governing cies example, agency hazard —for an serious example, an adverse generally, Most indisputable that a truck has evidence against not be taken may action personnel subject with is epilepsy grand driver was, as employee.covered, an agency mal seizures —the does not have Personnel Manu- the Federal chapter the to have employee to wait for a serious promote cause as will except for “such al the job taking accident on before adverse efficiency the service.” 752 FPM the The evidence with action. medical linked accord, Lloyd-LaFollette 1972); (Apr. 1-3 showing the hazard be potential would 6(a), 7501(a) at 5 codified U.S.C. Act § cause taking sufficient adverse action. 752.104(a) (1974). This (1970); C.F.R. § however, cases, In all other the agency throughout federal leitmotif standard —a the must link medical conclusion with by the administration —-is refined personnel observed in work perform- deficiencies when it further delimits to certain Manual employee or ance behavior. concerns: specified employment (Feb. 1972) FPM S1-3a(5)(f) 752-1 (empha necessary cause is just and substantial A added). sis action and the a basis for an adverse unparticu exception theWith merits must determined on the action Dr. Eck his medical assertion of larized individual case. each AEO, the there not opinion 1972). (Apr. Finally, 1-3 FPM inca appellant’s suggestion slightest point present of our precisely most hazard posed “high probability pacity case, that a mental the Manual clarifies or others because to [herself] may warrant re- disability indeed physical work does.” The Govern kind of [she] established procedures under the moval it contrary argue ment does —as requires specifically but chapter the basis of reasonably could not on disability pro- undertaking such medical rather than contends present record —but link disability an must ceedings agency from Dr. Eck’s apart evidence substantial concerns: specified employment certain necessary clearly established opinion medical conclusion link between the rely solely upon causal must fitness-for-duty a disa- employee has reached showing condition, when behavior and un appellant’s disruptive even bling Thus, it opinion job of inca- satisfactory performance. obtained a medical has placement “merely of limita- Dr. Neither Eck’s pacity. characterizes cumulative, operative.” than rather on the duties tions Code, pro- agencies of title 5 of United States oftentimes will of title 5 of Individual own, personnel Regulations, mulgated further refined the Code Federal and that mas- their actions, rules, guidelines, suggestions, but none of sive thesaurus of with removal to deal rules case, imprecations: secular mentioned in this the Commission’s has been Bureau’s indeed, any. if, Federal Personnel Manual. This leaves us for has then, applicable provisions part, most 274 continuing is, then, they were of a nature —did It tent at 8 n.4. to Brief

Government’s negative, record evidence of in any not manifest themselves “operative” the so-called Still, deficiencies that observed work-related for occupationally-related manner. opin- the medical linked agency must have generous period rather what we consider a disability. ion time, the Bureau did subordinate its le- gitimate perform- in the efficient interests counsel true, government conced- It is as maintaining a of its and ance tasks22 that the administra- argument, ed at oral no precise us contains level office morale23 in order satisfactory tive record before agency. statement explicit help appel- and nexus to accommodate and ameliorate agency an to require employing we Were problems. lant’s unfortunate emotional ”—whenever it nexus exclaim —“ecce with counsel impressed We are much on employee disabili- sought separate attempt to limit appellant’s imaginative might reached grounds, perhaps we ty signification psychiatric of Dr. Valle’s We this case. refrain a different result more immate- nothing conclusion than an wooden, a such formalistic imposing from rial that datum of evidence however, be- agency, on the requirement duty” only “not fit for on the mentally enough satisfy the Man- lieving it is that particular day psychiatric of her examina- if the has requirement ual’s nexus tion, diagnosis that the could not theoret- so in the evidence furnished a rational basis be related to instances of “observed ically diagnosed that for its conclusion medical previous day.24 See any deficiencies” problem adversely employ- has affected not, Appellant’s Brief 24-25. at There is performance. job-related ee’s behavior fact, been to deter- insofar we have able reading From our of the administrative rec- mine, showing requirement any greater case, ord in the instant we think rather made Bureau here. than was While appellant’s diagnosed that medical obvious impressed are also much problems substantially times did ad- at and psychiatric examination admin- value of versely performance her work affect Valle, infra appellant by Dr. see times, istered employment behavior. At other it is true, what it in problems appears ex- at least from psychiatric the—to States, patient g., v. the term did not mean that 22. See e. Dozier United that 866, forever, 1973) (inefficiency); 58, (5th 868 Cir. Wash suffer from it id. we do not would Summerfieid, U.S.App.D.C. 105, ington persuasive appellant’s interpretation 97 his find (unsatisfactory (1955) subsequent testimony 228 F.2d 452 attendance report examinations); S3-1(a) (Oct. 752-1 FPM indicating that had not suffered from “a she 1976). handicap prevent would mental [her] engaging gainful in substantial federal from See, supra, g., Baughman, 243 e. Green v. day.” Ap- employment single than a more (discourteous F.2d subordinates); Schlegel 613 behavior towards pellant’s Brief at 24. v. United also do occa- We not consider Bureau’s 1378, 1372, F.2d Ct.Cl. cert. sionally imprecise interpretation of “chronic” denied, 1359, 25 397 U.S. 90 S.Ct. L.Ed.2d “morbid, diagnosis in Dr. Valle’s to be the irra- (1970) (evidence employee committed tional abreaction” that characterizes four homosexual acts on three different individ- it, id. at or to have rendered its removal separate uals on four occasions indicated arbitrary capricious. efficiency adversely action We cannot morale fected); af- would say treatment of the evidence Krennrich basis, denied, was without presume rational and we do not 169 Ct.Cl. cert. judgment (derog- own to substitute our as to S.Ct. L.Ed.2d 109 atory anonymous employee weight letters federal to be accorded the medical evidence Brucker, of fellow official wife the record. Ellmore v. 99 U.S. See irrespective 734, 736, denied, App.D.C. sufficient cause of truth accusa- F.2d cert. tions). (1977). also 5 731.202 C.F.R. U.S. 1 L.Ed.2d (1956); Scroggins States, 397 F.2d 24. Dr. he used term Valle testified that 295, 299-300, 184 Ct.Cl. appellant’s schizophre- “chronic” to mean (1968). L.Ed.2d 363 .,” present “has . nia been for awhile Macy, See also Mendelson v. though specifically could not how he determine long. 42-43. While Dr. Valle also testified Tr. 84, record, conclusion based Record an absence from during the medical work was fitness-for-duty period January 14, to February that 1972, disability during mental which time she one of was treated at indisputably no- incapacity. removal D.C. General and St. Elizabeth’s employment Hospitals, 115, inpatient the directive-to- treatment incorporated id. at Eliz expressly tice St. findings of the ex- abeth’s and convalescence from undergo letter and December 1972, 5, which, together, 7, January 84, taken when Id. amination satisfy require- sufficient both The record also reveals that the Bureau charges the nature of the be ment that expended expense considerable time and detailed, 7512(b)(1) complete and U.S.C. § attempting to accommodate her disability. requisite and to establish the link During her tenure at agency, for in- and the the medical conclusion ob- stance, between nurses were summoned to care for noted in the directive to times, deficiencies served her brought five she was to the Men- the examination. undergo by tal Health Clinic times, co-workers four case, might we with another taken Bureau car to Confronted St. Elizabeth’s Hos- terse, times, than Dr. Valle’s pital more taken to require George Washington well appel- once, medical conclusion Hospital by ambulance taken unelaborated this time.” duty hospital by “not fit Bureau car times, was three lant been, examination, may as it such sent home Bureau car six His times. Id. evidence however, Finally, from we note is far 59-60. that a doctor at St. mental dis- underscoring appellant’s diagnosed appellant’s Elizabeth’s had record condi- her value 13, effect on 1972, its adverse on ability January tion as acute schizo- careful review employee. Our phrenia episode, and that the same diagno- as a federal fortifies us in our this case year later, record in sis made almost a during decision, which agency’s that the hospitalization from December conclusion approved was subsequently January after appellant appar- the Commission evidentiary support as to lacking in ently stopped taking so had her prescribed not arbitrary. and set aside condemned Id. 65. medication. Freeman, Dabney sum, then, we conclude that See the find- also F.2d disability mental ings alleged and the Macy, disruptive Mendelson behavior are sup- instances of (1966) F.2d sufficient evidence such that ported us, a rational basis for may discern the Com- instance, before as did we have For holding that the tribunals, evi- mission’s had ade- uncontested reviewing prior established that the observed defi- years quately two during appellant’s dence appellant’s ciencies in behavior at absent from work work Bureau she was with diagnosed disability. stemmed from illness or its treatment psychiatric due explained, agency’s the AEO id. days than 92 As aggregating more periods 61; directing appellant to undergo 55-64. letter Record see id. 72 occasions.25 on fitness-for-duty examination set forth attributable to part were in absences These unsatisfactory instances of specific a unit of behav- therapy at continuing outpatient ior, supra, upon see note 4 which the January Hospital since Elizabeth’s St. figures, -for down as follows broken Record 61. Whethér 25. These in fact would do leave lend years, and 1973 have become employable continued treat germane treat- conclusion Bureau’s ment, as Dr. Bernet support opined, lasting effect. had no ment had vel non of the decision rationality through Leave Year from 6/7/71 1/8/72 fit for It is was not then duty. quite that she 10-1/8 occasions days —8 assessing germane, however, feasibility through 1972 Leave Year from 1/9/72 1/6/73 placing extended leave-without- 67-6/8 occasions days —37 See text infra status. at- of 184 U.S. pay through 1973 Leave Year from 282 of 1/7/73 566 F.2d. 5/21/73 App.D.C., when off placed duty occasions days —27 pro- parties. known to all of the Cf. Moore- instituting the removal relied later Lines, information, appel- McCormack Inc. ceedings. With (1969). Moreover, personnel and other Ct.Cl. description, job lant’s 102-05, adversary, with an him, id. Dr. Valle Dr. Eck was not allied see history before and, to other- was not absent some reason believe concluded that she psychiatrically wise, presume should that he had This medical duty at time. fit for appeal. stake in the outcome of the incorporated into the notice neutral was conclusion action, doing so adverse proposed otherwise, any require- nexus Were it satisfied this might the Bureau be a case, for, 339.101 different generally general 5 C.F.R. as a rule, § ment. See ex States, 412 parte v. United (1974); Salter communications an adversary par 874, 875, 188 (1969) (“If ty the medi- to a Ct.Cl. decision-maker in an adjudicatory report [fitness-for-duty proceeding prohibited cal as fundamentally examination] physically was plaintiff variance with our conceptions had established of due he mentally position, process. unfit for his could Sangamon See Valley Television States, removed or demoted therefrom Corp. have been 106 U.S.App.D.C. case, reason.”) this any At least in 269 F.2d 221 for this Administrative Proce unduly 5(c), would be formalis- dure Act other conclusion 5 U.S.C. 554(d) (1970). § short, tic. whatever else it may been,

alleged ex parte communication was not an unsolicited, self-serving contact initiated B party interested to add to its factual argues quite Appellant forcefully also evidence or proffer to justification further the communication between the AEO for its actions after the record should have Eck, characterized ex parte and Dr. as an been closed. contact, prejudicial amounted to a violation hand, On the however, other the AEO’s process. due Appel- of administrative solicitation of an additional opinion medical 26-30; Appellant’s Reply lant’s Brief hardly is analogous to “an assembling of agree, at 1-4. We part. Brief but the files and a placing of the case in proper outset, it will At the be worthwhile to posture for the hearing” which the Court of what clarify we consider not to be involved acceptable Claims found in Korman v. Unit- one, particular in this case. For we do not States, ed 462 F.2d 199 Ct.Cl. 78 here, confront as the Court of Claims did in or, (1972), as the Government urges, now States, v. 779- Camero United appropriate use of assistants underwrit- Jarett v. 179 Ct.Cl. Unit- ten by Supreme Court in Morgan v. 623, 628-29, States, 451 F.2d ed 195 Ct.Cl. United (1971) (where decisions adverse 80 L.Ed. 1288 and by this court reversed), employees were ex government in Braniff Airways, CAB, Inc. v. 126 U.S. parte employing communications of the App.D.C. agency concerning the merits of the case What occurred in this case must be viewed responsible to those for decision addressed essentially the introduction of further required by regulations to be proceedings opinion medical evidence record, into the See, evidentiary hearings. g., e. adversarial and not simply the obtaining of assistance supra, F.2d at Gayer Schlesinger, in evaluating existing record evidence. 747; F.Supp. Brown (N.D.Tex.1974) due (procedural of such evidence The introduction hearing examiner on violated where process appellate which the the record into “pros- occasions discussed case several agency hearing). prior for ecutor” decisions would be based without an oppor tunity where the relevant fac- Nor is ours a case the parties to comment thereon appears controversy in a contentions tors and conflict with procedural certain It is thus our opinion considered by which the Commission requirements that, even though Dr. Eck’s During the adjudicating appeals. bound merely an additional medical evaluation of own pertinent period, Commission’s evidence upon record had of ad- appellate review governing rules already had a full and opportunity fair instance, actions, did personnel verse comment, it was also more— considerably applicable exception one provide, with being evidence of the type that went to the here, that validity essence of the deci the Commission representative [a] sion in this case—and therefore representations relevant all shall discuss should have been an opportunity afforded make parties with both evidence and comment upon provided review it as availa- and evidence representations the Commission regulation.28 While them for review.26 to ble practice such a will inevitably introduce delay deciding some an appeal, that cost 772.304(c) (1974) (emphasis add- 5 § C.F.R. will, least, at the be more than counterbal at id. codified amended ed), presently anced the benefits ap derived from the 772.308 also id. 772.305(b) (1977). § § pearance of a fairer adjudication of the here- applicable not (a provision, new Furthermore, merits. practice the better record). closing of the concerning the in, will be to remand the case to the hearing pro- title 5 Furthermore, section 7701 authority reopen the proceedings in those its make shall the Commission vides cases where the Commission is uncertain investigation and considera- “after decision sufficiency about the the evidence one . . .” . submitted the evidence tion of way or other. added). (1970) (emphasis 5 U.S.C. § clear, entirely we believe Though not language contemplates statutory Although reception

this and consid based on will be decision Commission’s eration of this undisclosed additional medi record an administrative review opinion by proce its cal AEO constituted opportunity have had an parties error, all dural we hold that such error was not This certain- upon. and comment review and does prejudicial not warrant reversal of with the Commission’s ly summary judgment, consistent appears since in effect the Chief professed practice, thusly generated merely evidence did if stated that specifically cumulative. See Dozier v. AEO not, see did hearing, (5th which she 1973); not desire Adminis Cir. adjudicat- will be “his case 10(e), Procedure Record trative Act 5 U.S.C. [sic] § (1970) (rule error).29 of prejudicial § of record.” on the basis documents ed See also Nelms v. United 167 Ct.Cl. 120. See also id. 32. Record regulation, competitive this Veteran’s Pursuant Preference Act to all agency given opportuni- employing employees. 10,- an her civil service Exec. Order No. “ap- ty the so-called to review contents of (1959-1963 Comp.). 3 C.F.R. § out, peals See Record 31-32. As it turns file.” however, appellant did all of the evi- not see argu- 28. We do not reach the constitutional case, (“[y]ou see are re- in her id. 32 dence pressed upon by appel- ments on this issue us appear quested evi- ... to review the lant. .”) case . until the AEO dence in . [the] quoted Dr. down its decision which handed requires 29. The Administrative Procedure Act opinion. medical Eck’s passing agency action “due prejudicial account shall be taken of the rule of provisions of 7701 codified those 27. Section (1970). Though error.” 5 U.S.C. a re- Preference Act of section 14 of Veteran’s viewing nullify thus will amended, court an §§ codified at 5 U.S.C. prejudi- decision because of (1970 Supp. 1975), error unless it is & V which estab- cial, Corp. see procedures Greater Boston an Television followed when lished FCC, 383, 393, employee appeals action to an adverse denied, 10,988 (1970), cert. Executive Order 403 U.S. the Commission. 2229, 2233, rights January appeal (1971), extended the we neverthe- opinion, medical impaired that, was not 381 U.S. expressly proceeding out abundance Appel- L.Ed.2d 706 S.Ct. indecision, of caution rather than the fun- prejudice primari- lant’s claim of is founded appellant’s appeal damental fairness of ly on assertion that Dr. Eck’s “ex Commission was not vitiated parte” opinion supplied medical the essen- action. Cf. AEO’s United States Lovas- tial, lacking, and hitherto nexus statement co, 783, 790, 97 establishing relationship the causal between (1977) (“due process L.Ed.2d diagnosed disability mental and the de- must consider the reasons [alleged for the grounds justificatory ficiencies identified as as well as the prejudice [party error] for removal. We view the matter differ- it]”). alleging ently. Despite holding our that a re AEO versal expressly compelled stated its decision is not ground, add few words of caution. An employee that it found the had established the must be afforded as oppor full and fair an required “through nexus the two letters” tunity to make an informed and effective (fitness-for-duty examination proposed defense as applicable permits, law letters). It explained: adverse action then agency, before the but also before the Nonetheless, in order to obtain further appeal. Commission on right ap If the evaluation of medical evidence on peal to the Commission the procedural which the had relied in proposing safeguards created to assure its impartiality [appellant’s] removal ... we sub- accuracy of decision are to be some the mitted entire case file to the Medical thing costly more than a facade —a Potem . Division Bureau of Retire- village kin up to conceal a fore —thrown ment, Occupational Insurance and Health conclusion, gone aggrieved party espe (BRIOH), U. Civil Service S. Commission cially must be afforded a chance to review review . . .” and comment the evidence that is to be considered responsible those for de quite Record 21. It is clear from first We, course, ciding appeal. do not statement, the substance of which we have hamper intend to the Commission with the reasonable, to in effect found be that fear the validity that of its decisions will be AEO would have concluded that the neces- jeopardized it attempts whenever better to sary independent link had been established inform process its deliberative and to assure supplemental of this evidence. Where an When, however, a correct result. for what alleged error in all likelihood would not reason, ever it seeks to obtain further evi result, have affected the its occurrence can against dence adjudge to validity prejudicial. Chrysler not have been the agency’s personnel decision, adverse 76-1586, Corp. FTC, U.S.App. No. both the regulations Commission’s own 561 F.2d D.C. to fairness employee individual require Dulles, (1977). 362-363 See also Smith v. that placed such evidence be in the record see, and, for all parties to they should choose, 329,1 L.Ed.2d make their views known. areWe also convinced that the C AEO, and, impartiality impor- more tantly, subsequently of the ARB which took We appellant’s find final contention more administrative compelling notice- of the additional this, than her others. she applying promulgated been less have cautious in tions pro- doc- for obvious benefit of spective deportees). trine of harmless administrative error when We heed that caution in procedural rights implicated. case, agency’s basic have been this but believe the action chal- Fong Cheung Immigration lenged scarcely See Yiu and Natu here can be characterized as Service, impinging upon ralization right procedural so a basic (1969) (refusal apply process doc- due as confronted court trine, clear, though deportability Fong Cheung. face ex- Yiu agency deportation regula- tensive violations our review of the administrative From she labored un- that, assuming even argues record, impres- we are left with the distinct handicap, Government der mental real was ever in fact no effort sion regulations by its own comply failed reassign to other duties made effort” “every reasonable making might performed more in which she seeking her removal her before reassign instance, For the Chief of satisfactorily. asserts, failure, she disability. This such ORTS, worked, where testified void personnel action rendered Bureau’s he to have her detailed on a arranged procedurally defective. to the Bureau’s Technical temporary basis claim is to particular of this The source Division “where there was need of Services of the Feder- provisions found in certain be period for a of one week.” clerk-typist Civil al Personnel Manual —the Service why appellant Tr. 185. When asked had issuing its vehicle for official Commission’s week, returned after one this been guidelines, poli- regulations, personnel following testimony offered the witness seek agencies cies to other federal —which feckless which underscores the rather ef- striking employing agencies guide to reassign appellant: forts legislative balance between reasonable Q. you have her Why did transferred? utilizing policies and executive branch Well, I she thought A. would less on the one handicapped,30 medically complex and so on. If it potential [sic] hand, other, neces- and, practical on the any possible was true there was friction and efficient the safe sity assuring between herself and [a co-worker]. assigned mis- achievement Q. this you might Did feel that be a end, provides the Manual sion. To this possibility, things some these follows: personality differences between [the perform can longer no anWhen co-worker]? her position of his or efficient- the duties thought might possibility, I be a A. or safely physical of his ly and because the move I but was that could condition, sepa- agency may the mental to to the try make alleviate situation and disability. of . . . on the basis rate him it wasn’t a successful one. I think the however, the view, policy week, ORI, following located someone for of em- executive branch utilization However, it particular vacancy. this was or who de- ployees handicapped who are recall, I my specific request. at As done 4 and 8 (see subchapters velop handicaps people the in Technical Services Division 306) every reasonable effort chapter the happy weren’t about situ- particularly the reassign should be made to there, her I had it ation. I had detailed perform efficiently to he can duties would rather had some- They done. fol- Specifically, . . . . the safely was one else or didn't feel her work en- be considered: lowing alternatives should no tirely satisfactory, there was inci- but dence involved there from the mental grant A of leave without liberal I anything like that. didn’t condition or the paid leave is exhausted and pay when comments of that sort from any hear nature and disability is of a remediable Superintendent the Divi- . the hospi- to treatment and respond likely time sion the . mental and emotional Many talization. reason; Q. give any Did he what you disorders, completely formerly considered if, why you was the reason she came back disabling, category now fall this know the was? what reason view the dramatic medical advance made in treatment rehabilitation ^{[*] [*] [*] [*] [*] [*]} years. these conditions in recent reason precipitating I A. think 1972) job. (Mar. (emphasis had been located to fill 1-3(b)(1) person 339 FPM Otherwise, perhaps I have insisted added). would 30. See note 32 infra. her receiving report that after from longer, her a bit try keeping they examination which stat- work, fitness-for-duty there was because that would

see if ed that she was not fit duty, friction potential unhappiness a lot was not a alterna- gone reassignment had feasible the situation develop because tive. Medical advice and months. some on for throughout proceedings obtained Tr. 199-201. leading appellant’s removal. We find another Bureau office for head of impropriety agency’s accepting no considerable work had done whom medically based decision that removal informally sug- he had also testified reassignment appro- rather than was the him in reassigned to that she be gested priate and best course of action for all problems apparent light of concerned. Tr. He considered their job. present added); (emphasis Record 20 Government’s excellent and her relations to be general however, at 12—13. This reasoning, Brief times, satisfactory at to be most work facts, with plays fast and loose for in Id. 251-53. at other times. though not so terse, Dr. actuality, apart from Valle’s for another the need Notwithstanding duty hand-scrawled “not fit office, appellant was not clerk-typist in this time”, medically-based there was no deci- the As- ostensibly there because reassigned sion rather than whatsoever “removal believed that there sistant of ORTS Chief reassignment appropriate was the course of room to accommo- enough was not simply .,” all action for concerned . or that Id. 236. necessary equipment. date grant liberal of leave pay” without “[a] approached he ever asked whether .When would have been futile. transfer, possibility of a anyone about that he this latter official further testified Whether what appears to have brought up the matter been inadequate reassignment had ORTS affirmative merely responded “[tjhat who he effort Chief or consideration liberal leave- good, where it any without-pay option didn’t see would do entitles matter, nobody willing quite because else would be relief she seeks is a different is, course, accept belaboring her.” Id. 233. Without however. It well-established further, we believe it rather that an must point regu obvi- abide its own that, effecting while some lations in the removal of one foregoing ous from of its Seaton, given, consideration was made Vitarelli employees. See reassign appellant to other no real effort U.S. Dulles,

duties. Service Mazaleski specifying exactly they what Without Treusdell, No. 183 U.S.App.D.C. were, the the asserts to con- Government (1977). 562 F.2d 701 If the Manual “[ejfforts in fact were made to trary which provision now refers us other, positions, she locate suitable and was binding regulation is indeed a if the and given a detail.” temporary Government’s agency comply has failed to with its man fact, presses Brief at 12. In it never the to the prejudice employee, date of its then zest, point any preferring with instead to predicate an essential to a valid removal shift from the extent of efforts emphasis will have wanting. been We must thus expended feasibility reassignment. to the question address the whether the above- regard, this the Government refers us to quoted provision in the a regula Manual is which, it correctly AEO’s conclusion or something give tion less which does not maintains, ignore by merely we should not employees rights. enforceable substantive substituting judgment. our own our with the placed begin analysis on one detail We [T]he proposition “every and some effort was made to locate other rather obvious that not positions piece paper emanating Depart from a for her. It was within Independent Agency regula- to make the decision ment or is a prerogative

281 States, language, provision’s of the its Piccone v. tion.” context, extrinsic any and available evi- J., (Nichols, 752 186 Ct.Cl. suited to an dence. This is not well v. United inquiry see McGlasson concurring); however, and court, consequently 303, 308-09, appellate Ct.Cl. F.2d case district we must remand the (1968); Greenway point. this We of court for resolution of n.5, Ct.Cl. in recognize provision ques- course (1966). It 167, 17 L.Ed.2d “should be” directory rath- employs tion however, provi- what extent clear, is less “must”, mandatory “shall” er than the published also in sions of the Manual automatically deter- this should not be or Code of Federal but Register the Federal Thompson v. minative of the issue. Cf. than Regulations mandatory rather Piccone, Clifford, supra, merely precatory. 154, 158-59 Particularly in this Certainly of the much F.2d at 871-72 n.12. instance, superficial indicium intent but un- Manual is not mandatory,31 some the rather weighed against strong should be may binding be if so published provisions executive, congressional, Thus, expressions of to de- by intended the Commission. a liberal em- a Manual policy favoring Commission provision, termine effect of ployment mentally physically in- the Commission’s court must determine any evidence that it, handicapped32 as an authoring tent in ascertained instance, 1972), provision presently (Jan. FPM 2-1 the matter. The as it exists see 171 31. For explains: provides as which follows: may prescribe system rules The President which Manual Personnel The Federal prohibit, nearly good medium of the Commission for shall as conditions of the official issuing personnel regulations warrant, instruc- its administration discrimination be- statements, tions, policy material handicap related physical cause of in an Executive personnel programs, to on Government-wide competitive or in the service with system agencies. To make the a more other respect which, position duties of tool, it also includes a reference convenient Commission, of the Civil Service of information about certain amount performed efficiently by be an individual can organization procedures, Commission’s except physical handicap, awith by bodies than and material issued other employment may endanger the health or Commission, Congress, such as acts of safety of the individual or others. orders, Attorney opinions of the Executive General, grant empowered to Id. The President is ex- Comptroller and decisions ceptions provisions of section from the General. 3302(2), research id. es, but so far as our disclos- § statutory provi- source Manual has to this time. he not done so question be found in a statute sion is to statutory authority, grant Pursuant to this authority Congress conferred which it, delegated the Civil Service Commission regulations to establish aimed President regulations Fed.Reg. promulgated against physically- minimizing discrimination prohibit which an from employees. handicapped of June federal Act taking legislative history Stat. 351. The against an cover- adverse action by emphasizes of this what is clear enactment physical ed 752 ... handi- Part language of the itself: from the literal statute cap respect any position the duties of Congress “to mini- intended eliminate or efficiently performed per- may solely physical mize from the discrimination physical handicap. son with the any applicant,” but insofar as condition accord, 713.401(b)(3) (1974); id. C.F.R. physical handicap materially did not inter- 752.104(c). year, the In the same Com- performance the hand- fere icapped efficient of with the gave vigor particularized to sec- mission more S.Rep.No.1222, employee’s duties. policies expressed 7153’s the tion mandate and accord, H.Rep. Cong., 1-2 80th 2d Sess. statements, in various Presidential see 306 Cong.; Sess. No. 80th 1st 1-3(2) 1969), employment (July on and FPM Act were in The terms of the 1948 rewritten handicapped it of when estab- retention the 89-544, Sept. Pub.L. No. Act of Programs. its Placement FPM lished Selective general as a codified at 5 U.S.C. agency manage- program, ch. 306. Under this physi- prohibition discrimination because of responsibilities charged ment is including generally with various specific handicap without reference the cal personnel previously enumerated in the actions employees [a]dvising assisting who are and relevant House and Senate Re- 1948 Act. The handicapped develop handicaps, es- or who legislative ports further intent on evidence no relating to adverse actions suggestions agency the their or Commission disabilities, togeth- taken a “common law” of based medical created past actions er, considerably a granting something leave-without- less than or reassignment that so far neither the note we are of the convic- pay. paradigm clarity, We also ARB, AEO, the Bureau, previously, nor evi- tion that remain consistent the litigation, has claimed Commission spirit policies dent towards of Commission binding is a subject provision the that mentally handicapped, physically and regulation. exercise an in- agency must employing determining formed discretion in whether it remand should be found If on leave-without-pay reassignment or are fea- 3(b), provision, 389 FPM the Manual that 1— sible to removal. An informed alternatives than precatory, rather a fur mandatory is discretion, think, necessarily exercise to the Commission will be nec ther remand contemplates comprehensive and detailed sufficiently to adduce com essary in order ade- report psychiatric so as per medical evidence to plete and detailed agency as to the quately to inform courts to reviewing mit it and both scope problem. of the medical We note the agency whether abused its determine requires: specifically Manual reassigning appellant in not or discretion (rather If it is removal determined leave-without-pay her on extended placing retirement) or reassignment than is and light chronicity of the nature order, obtain com- should availability well as the of other disability as report physical ex- Although plete and detailed positions.33 suitable the Manual’s instructions, employee. without cost to the regulations, numerous and amination job-incurred job-related light pecially or condi- Id. 5-1. sion, of Dr. Bernet’s medical conclu- every making preclude appears appellant currently falls tions effort program. disability separation within terms of this either disability retirement or See Record Finally, employment exhaust the continued but not to veritable when is fea- plethora provisions of other similar within the not detrimental the em- sible and either volumes, many ployee Manual’s we note that or the Government. responsible 3-2(d)(2)(c) (July 1969). Commission considers itself for es- 306 FPM Consistent tablishing jobs “realistic medical standards for congressional poli- with cies, however, and executive branch duties, job permitting thus program related to actual job does not ensure employed handicapped any posi- to be security simply happens because one to be they perform efficiently safely.” tion can handicapped. Although program coverage ex- 8-1, l-4(b). 2-4(a). Id. also id. mental, Cf. id. physical, tends to even social im- 8-2(e), disability (reassignment in lieu of 8-5 pairments, emphasizes id. see Manual retirement). agencies invariably That have not individual designed programs are to assist [t]he proceeded vigor with enthusiastic to achieve handicapped qualified physical!y im- —the goals by Congress and established the Pres- emotionally restored, mentally paired, the Hills, ident is from McNutt v. evident retarded, public and'the offend- rehabilitated F.Supp. (D.D.C.1977). obtaining retaining employment er—in consistent with their level of abili- skills and course, circumstance 33. Of under no would an capacity for ties and their safe and efficient required high be to search and low job performance. Emphasis ability is on throughout its own bureaus and the entire civil disability rather than and on rehabilitation system position service for a in which men- present job pro- efforts grams readiness. The tally handicapped employee physically can designed promote are not the em- satisfactorily perform despite his or her disabil- ployment nonqualified, or retention of nonr- Fleishman, ities. Cf. Cerrano people simply they may ehabilitated because (2d 1964), Cir. 106, handicapped. also be (1965) (no reassign- “mentally person Id. 1-2. A restored” necessary a condition ment to a valid efforts defined as disability retirement). Its efforts need experienced one who has some mental or reasonable, gauged by the nature the em- difficulty, profession- has availability emotional received ployee’s disability of suit- al either in or positions. Assuming treatment outside of an institu- able alternative that an judged competent all, they tion and has been medi- reviewable at efforts are ready authority only for cal return to his nor- would for an dis- be reviewable abuse of including employment. cretion. mal activities reassignment likely or the of immediate referred for should be employee of the on leave- placing employee value a statement of examination with medical “diagnostic im- without-pay This status. position demands particular the pression” is little more than an ultimate employee’s of how the a statement and any unsupported by conclusion reasons or fails meet or behavior performance explanation might give detailed some . . This medical demands. these substance it.34 Such intractable psychi- Commission, is to the report furnished can be terminology atric of little assistance its for review of upon request, appellate in the employing agency evaluating to the purposes. for other the removal or for em- prognosis extent and an actual of 1972). (Feb. S1-3(a)(5)(b) FPM 752-1 This As the psychiatric disability. in ployee’s examination, as fitness-for-duty so-called in a insanity of defense criminal context the seen, an required is whenever we trial,35 the role of the in our psychiatrist physical “has a about the question agency be legal system perverted must not so that of and capacity employee” or mental an indi- government’s against the actions an personnel an action justify seeks adverse degenerate into “trial vidual a label”. Id. S1-3(a)(5)(c). such capacity. adequately for it to assess the In order However, a solely administered is not feasibility of alternative meas- pursuing removal, for as the necessary predicate to ures, reassignment to a such as less-de- Manual emphasizes: itself fitness-for- “[a] manding position or a allowance of liberal medical will be valuable duty examination the must in- leave-without-pay, be counseling determining and in the particularity formed with reasonable con- actions availa feasibility the of alternative cerning employee’s disability. its medical 3(c) (Mar. the 339 FPM agency.” ble to 1— personnel with Agency officials entrusted 1972). not, average, on the in administration the Although we have determined that position signi- better any comprehend report suf- fitness-for-duty examination g., of psychiatric fication labels —e. schizo- basis for ficed establish rational neurosis, phrenia, paranoia, jury- etc.—than action, at least when Bureau’s adverse passing upon an insani- men entrusted medically-re- in viewed relation to other defense, ty little is offered when else evidence, do consider the sim- explanation. lated of The terms should way statement, ple “Schizophrenia, defined, chronic-un- significance and least differentiated, explained ‘Not reason- compensated. diagnosis prognosis fit and time’,” adequate in a manner that relates at this to be an basis able detail and duty project- and feasibility employee’s current to assess either the both See, insanity interposed. Scrog- has been defense 34. This case stands in stark contrast States, supra, Brawner, U.S.App. gins g., v. United where involun- e. United States (en banc) tary disability government (1972) retirement food 471 F.2d D.C. predicated upon service worker was a three- (“It responsibility is the of all concerned —ex- page, single-spaced report on a based doctor’s judge pert, to it that counsel and see—to psychiatric included insanity jury in an case is informed of the only prognosis, diagnosis but approach, underlying expert’s reasons examination, psychiatric details opinions not confronted with ultimate on responses patient, statements basis.”); (Ba- id. at 1017-18 take-it-or-leave-it the doctor’s observations. See id. 397 F.2d at zelon, J., dissenting concurring part C. J., (Skelton, But see id. at 300-02 concur- States, Washington part); v. United 129 U.S. ring). We also have doubts about serious 39-40, App.D.C. & 454-55 utility psychiatric single-visit of a evaluation States, U.S. Heard n.30 generally 45-minute duration. See McFar- (1964); Camp App.D.C. F.2d land v. United 207 Ct.Cl. bell (1975) (one doctor a one- characterizes (1962) (Burger, 614-15 F.2d time, “inherently 45-minute evaluation as un- J., Schlesinger, dissenting). Smith v. Cf. fair”). security grounds (revocation clearance quite type It should at least be clear condition). mental conclusory labeling terse has often been con- where demned this court criminal cases 284 keep position in her indefi- perform his or work capacity

ed Washington v. United satisfactorily. Cf. nitely, and is difficult to think of another 29, 39, 390 U.S.App.D.C. position might which she have filled. 444, context). (1967) (insanity defense Nevertheless it does seem to me provi- Manual relevant Federal Personnel one, quixotic here is not a holding Our sion, compassion, coupled with normal prognosis, Bernet’s see Record 84- Dr. both the Bureau to 88, impelled at the should have consider testimony and Dr. Valle’s hear- appellant’s well as behavior ing, pay Tr. extended leave without as an alterna- examination, fitness-for-duty after the separation. tive to Because the Bureau did that, least, at the indications liberal good in the any not consider alternative I concur leave-without-pay, coupled extension remand. treatment, in- may with continued medical have been both feasible and fruitful. deed ROBINSON, III, W. Cir- SPOTTSWOOD Judge, dissenting: cuit

IV My colleagues dispute do not the oft-stat- above, set forth the judg- For the reasons principle ed that an administrative agency appealed ment of the district court herein is regulations.1 is bound its own It also is and the case remanded to it for vacated common ground among “[ajgency us that whether Federal determination Personnel substantially prejudicially action that 3(b)(1)(Mar. FPM Manual Provision 339 1— violates the 'rules Bureau, agency’s cannot stand.”2 1972) so, binding on the and if too, agreed, We are for further remand to the Commission to Civil Service complete psychiatric report obtain a more Commission in resorting adjudicative- erred present feasibility which the of alterna- ly to Dr. Eck’s signifi- conclusions on the may judged. tive actions better be appellant’s cance of mental condition to her performance job on the safety and the ordered. So But, herself and her coworkers.3 although ROBB, Judge, concurring: Circuit I concur in Judge much of Tamm’s scholar- court, ly opinion for the I am unable to facts, In my judgment objective inde- accept the view that the Commission’s blun- pendent psychiatric opinions, required regard der in that prejudice appel- did not the conclusion that was not would, therefore, case, I lant. remand this fit for employment posi- continued in her just exploration for an the legal into tion. I refer to the facts stated in n.25 and practical feasibility of appellant’s reas- accompanying Judge text of opin- Tamm’s signment within employing agency, but ion, and those summarized in the Bureau’s more broadly for further in- fitness-for-duty directive, proceedings quoted quiring in n.4. as to whether Given those facts I cannot she should be rein- believe that required Bureau was position.4 stated to her former Seaton, g., regu- 1. See e. Vitarelli v. 359 U.S. an failure to follow its own 968, 972, action”). 3 L.Ed.2d 1016- is fatal lations to the deviant Dulles, (1959); Service v. (1957); Gardner v. Majority Opinion (Maj.Op.) III(B). 3. Part FCC, 234, 237, U.S.App.D.C. 530 F.2d (1976); Regulatory Nader v. Nuclear case, many steps I As view as three Comm’n, U.S.App.D.C. 513 F.2d may originate be needed. Each would before rather than the District Commission Court. First, appellant provided opportu- should be Bonita, Wirtz, Inc. v. nity opinion, any to combat Dr. Eck’s event n.4, (1966), quoting 369 F.2d 212 n.4 and, desired, through cross-examination if Sangamon Valley Corp. Television through presentation evidence, of additional es- pecially accord, question interjected on the for the Union of Concerned Scien- — AEC, U.S.App.D.C. 64, appellant’s first time Dr. tists v. Eck—whether (1974) (“the dangerous well-settled rule mental condition renders her to co- [is] particularly nonprejudicial,

i was the error Dr. as that evidence theory on court’s the view, finds, correctly my court The “merely cumulative.”8 was Eek’s statement relied on the Civil Service Commission that the court nor the Neither Commission pertinent in violation of Dr. Eck’s appellant that rules, attempts the to demonstrate by which procedural Commission at- successfully Indeed, have possibly could not is bound.5 circumven- firmly opin- Eck’s Dr. mitigated at at- tacked or least hearing process, and of its tion so.9 to do the chance been given to review com- ion had she opportunities tendant ap- by Dr. Valle cross-examination the and to The ment on evidence cross-examine of an counsel, the introduction witnesses,6 questions proce- pellant’s serious raises un- journal that a psychiatric I from process.7 Where must differ article dural due under- court, however, employing is as the with the to whether dercut Second, assuming is essential. appellant remand to the Commission workers. that believe responsive showing, out, points regulations some substantial the are makes if As the court appellant’s the should reconsider ini- binding, Commission that should it is the Commission position from her former at the Bureau removal tially employing the determine whether Engraving Printing, and determine reassign thus properly Ms. It failed Doe. she should be therein. whether Third, reinstated the sensible to allow Commission seems pursued, if the latter course is not the binding ap- the effect and to determine chance proceed to the should the issue of Commission the its plication event of the Manual responsibility reassign Bureau’s her as one analysis leads it to conclude of the other issues psychiatric problem the interferes with whose job. previous unfit for her previously performance of the duties entrusted If the to her. Commission should decide nn.9-10, Maj.Op., U.S.App.D.C. 5. 184 at-& employing agency required the is not to seek 270 F.2d at nn.9-10. 566 & reassign- reassignment, or not able, appellant opportuni- would then have the regula- 5 C.F.R. 771.210 6. See ty to show the District Court that the rele- parties to cross-examine allow the tions provisions Manual are vant Federal Personnel binding 771.210(f). 2 Recom- See also Id. § witnesses. require reassignment. Al- Reports Administrative mendations question though binding effect of (Recom- United States 77 Conference provisions involving determinations of wheth- — 72-8) (“[ejxpert professional advice public mendation knowledge, “rules” were er the were of disposition case the facts employees on for the federal as intended benefit of record, subject employers, on the received as man- should well intended as datory by parties respond”). agency, right Lines of both see American Farm to the Serv., 532, Freight Ball 538- v. Black U.S. 1288, 1292-1293, 90 S.Ct. 25 L.Ed.2d Bell, Ralpho U.S.App.D.C.-at-, 7. (1970) (ICC by pro bound 552-553 rules (1977) (“[a]n opportuni- F.2d 607 at 628 mulgated primarily for assist- Commission’s by ty evidence utilized meet and rebut procedural not to ance and confer benefits long regarded agency has been administrative individuals); Yellin v. United 374 U.S. process”). primary requisite of due aas 114-117, 1828, 1832-1834, 83 S.Ct. Supreme Ralpho, we two earlier described (committee (1963) L.Ed.2d by 783-785 bound holding opinions that “reliance on as Court rules, “throughout rules its where opportu- factual evidence without extra-record nity witness’ dominant theme is definition of the parties inspect and address [is] privileges”); rights and United States v. Leah- Id., U.S.App.D.C. process.” of due denial at-n.160, (1st Cir.1970) ey, (two intersect- (discussing at 628 n.160 general guideline, ing are “a factors deliberate- Morgan 58 S.Ct. devised, ly aiming accomplishing uniform (1938) and Ohio Bell Tel. Co. 82 L.Ed. 1129 equally and “an deliberate conduct of officials” public Comm’n, 292, 57 S.Ct. Utils. 301 U.S. v. Public announcement”); see Morton v. also (1937)). L.Ed. 1093 Ruiz, (Bureau Af- of Indian L.Ed.2d - n.29, Maj.Op., & though “Manual” is bound its even fairs F.2d at 277 n.29. & procedures possibly rig- more internal “the by required”) otherwise would orous than —is 76-1586, FTC, Chrysler Corp. Compare No. appropriate in the as for determination at least District first instance Court (1977) (no improperly prejudice Commission, where expedient 362-363 it would be more supplemental indis- evidence was considered of reas- to consider issue the Commission accurate). along putably which I signment the other issues in conclusions, agency’s findings rial error in the remain a Dr. Valle’s indicate standing of matter of substantial doubt.13 Additional- challenge Dr. Eck’s opportunity that an admonish, we have ly, as had occasion to necessarily would “impression” doctrine harmless must be “[t]he [of error] Implicitly acknowledging futile.10 been all, proce- used if at when basic gingerly, this, adopts analytical tech- the court sure, rights dural are at stake.”14 To be attempting to determine whether nique of out, aptly points court we must focus on would have reached the Commission the methodology agency decisionmaking of same result had it not solicited and received decisionmaking not substitute our own Dr. opinion. Eck’s agency.15 skills for those of the And the im- Though, indubitably, procedural some corollary principle of that a is when readily truly can be labeled proprieties procedural mistake is uncovered we normal- “harmless,”11 relatively clear cases should return the ly litigation —corrected Generally, should we undertake do so.12 remove the the administrative defect —to judicial action makes no claim on rather than process attempt decide the consequences affirmance while the of mate- merits ourselves.16 When procedural reg- a essentially Transcript Appeals Hearing 10. See Before has the same function on review of Examiner, Engraving Printing type litigation, compare Bureau of a either Kerner v. Cel t 15-56, 11, (Sept. 1973). ebrezze, 11, 736; supra 66-76 Nor is this a note 340 F.2d at see given post-hear CAB, case in which generally, Airways, supra, Braniff Inc. v. ing opportunity upon to review and comment 412-413, U.S.App.D.C. 126 379 F.2d at 465- Thus, question. the evidence in 466, we are not perceive good why impact I no reason op called to determine whether such' an general any administrative error of kind portunity would render the error harmless and not be should tested the same “substantial- comport regulations with the and the Constitu course, involving doubt” standard. Of error tion. improper procedures the use of calls forth even rigorous application more of the standard for See, g., Celebrezze, e. Kerner v. 340 F.2d I reasons have discussed in text. See text 736, (2d Cir.), denied, 861, 740 cert. 382 U.S. 86 15-17; Airways, infra at notes Braniff Inc. v. 121, (1965). S.Ct. 15 L.Ed.2d 99 CAB, supra, 412-413, U.S.App.D.C. 126 379 Indeed, 12. See F.2d at cases cited infra notes 465 — 466. some 13-14. administrative procedures might be so fundamental 10(e) 13. Section of the Administrative Proce- achievement of a fair and accurate decision specifies judicial dure Act that on review of procedure that a denial of or defect in the will agency action “due account shall be taken of always give rise to a substantial doubt. See prejudical the rule of error.” 5 U.S.C. 706 § Airlines, CAB, Capital National Inc. v. 136 U.S. (1970). consistently We have measured the 86, n.12, 668, App.D.C. 94-95 419 F.2d 676-677 prejudicial effect of erroneous administrative (1969), denied, 908, n.12 cert. 398 U.S. 90 S.Ct. findings by ascertaining and inferences wheth- 1693, 26 L.Ed.2d 68 also United §ee er there is “substantial doubt” that the ultimate Heffner, 809, (4th States v. 1970). 420 F.2d 813 Cir. finding same, would nonetheless have been the FTC, U.S.App.D.C. 274, 280, Tashof v. 141 437 707, (1970); F.2d 713 NLRB v. Reed Prince & FCC, Corp. 14. Greater Boston Television v. 143 Co., 131, Mfg. (1st Cir.), 205 F.2d 139 cert. U.S.App.D.C. 383, n.16, 841, 393 444 F.2d 851 denied, 887, 139, 346 74 S.Ct. 98 L.Ed. 391 denied, 923, n.16 2233, cert. 403 U.S. 91 S.Ct. (1953); Secretary Force, Denton v. of Air (1971) (citing Fong 29 L.Ed.2d 701 Yiu (9th Cir.1973), F.2d 414 U.S. INS, 244, 248, Cheung U.S.App.D.C. (1974); 94 S.Ct. see (1969)). Hardin, also Fairmont Foods Co. 143 U.S. 40, 48, App.D.C. 442 F.2d Maj.Op., at-& nn.13- CAB, Airways, Braniff Inc. v. 14, 566 F.2d at 271 & nn.13-14. 399, 412, (1967), yardstick 379 F.2d approximating traditionally ap- utilized on peals 16. See Massachusetts Trustees of E. proceedings. Gas & from lower court civil O’Reilly, Fuel Assocs. v. United 377 U.S. Boston & A. R. R. v. 1236, 1244-1245, (1895) 12 L.Ed.2d 39 L.Ed. (1964) (likelihood (remand appropriate beyond more of same result must be doubt); improper procedure employed when or relevant Chichester Chem. Co. v. United misemployed App.D.C. type 60 (same criteria than when other made); result in of error must be cer- administrative mistake Mining cf. Powhatan absence tain). Ickes, (6th prejudicial Because “the rule of Co. v. error” II designed is ignored by ulation decision, and more accurate fairer produce This, lights, a clear case. by my is not for that reason —hesi- precisely aside, appel- evidence of Dr. Eck’s should — procedure the defective to assume that tate duty at her lant’s unfitness continued goal. To balanced achieved equally assigned overwhelming, is no means post error, course, desir- against agency test arbi- even when measured expendi- unnecessary ability avoiding capriciousness applied by trariness and and ef- resources tures of administrative Although that standard of review court.18 weighs But consideration heavi- this demanding forts. is less than the substantial-evi- outcome in the only if it is clear circuit and others dence test utilized ly hearings time reviewing agency adjudicative be the same the second agency would decade,191 complete- during at least last around.17 Cir.1941) reviewing position (“a case seems des- cannot Brown court know way. might give hearing shown and for tined to a full what 29.07, Davis, speculate Treatise K. Administrative Law not free to as to the that reason is Supp.). involved”). (1970 brief prejudice at 1011 recognizes The Commission’s that, circuit, judicial at in this least supra accompanying 13 and text. 17. See note such calls for decision review in cases as this sup- challenged the is as whether action - Maj.Op., U.S.App.D.C. 18. See 184 at & Ap- ported by substantial Brief evidence. for n.15, 566 271-272 F.2d at n.15. & pellees 11. at judicial The law” ad- “common review of Comm’rs, U.S.App. g., 168 E. Efthemes v. action that “the ministrative indicates where 286, 288, 182, (1975); Pol 514 F.2d 184 D.C. proper procedure quasi-adjudicative[,] is . Secretary Treasury, U.S.App. v. 155 cover proper is the standard of review substantial 338, 346, 1223, 1231, denied, F.2d cert. 477 D.C. whole.” 261, 269, Safir evidence on the record as a See 356, 1001, L.Ed.2d 237 U.S. 94 S.Ct. 38 414 U.S.App.D.C. Kreps, F.2d v. 179 551 Administrator, (1973); U.S.App. v. 155 Moore 447, rejects (1977). The in court that test 1283, (1973); 455 475 F.2d 1286 Dab D.C. ney arbitrary-and-capricious 166, favor the standard Freeman, 168, U.S.App.D.C. 123 358 v. 10(e) Tobriner, 533, case on the basis of (1965); § v. 121 535 Pence F.2d Act, 717, provides 283, which 282, Administrative Procedure 718 349 F.2d reviewing shall . . . hold that court (1965); 412 “[t]he F.2d Charlton , agency remand, 390, (3d Cir.1969), and set aside action . . unlawful 462 393 after F.2d by denied, 1027, unsupported Cir.1972), evidence in a case (3d substantial 93 cert. 59 460, subject (1972); 557 of this title or to sections 556 and 321 McCourt v. 34 L.Ed.2d 1365, agency (4th Cir.1975); Hampton, reviewed on record of an otherwise 514 F.2d Nunlist, 1368 335, (5th by Harvey hearing provided 5 706 § v. 499 F.2d 336 statute”. U.S.C. Cir. Serv., 1974); Alsbury (1970). 556 v. United States Postal Sections and 557 establish certain 852, (9th Cir.), denied, requirements hearings provided by 553 530 F.2d 854 429 §§ (1976); hearings requires 91 § U.S. 97 S.Ct. 50 L.Ed.2d Dep’t, Vigil adjudications, exempts F.2d v. Post Office actions before certain Cir.1969); (10th involving employ- Peters v. “the selection or tenure an contra, question employee-dis- F.2d Ct.Cl. 63 ee.” Thus whether (7th Hampton, charge litigation intercepted. Wroblaski v. is 1976); SBA, Twiggs Notwithstanding quoted, cf. v. language Cir. last (3d 1976) (Charlton, supra, limited 152-153 Cir. “the we review here record of an hear- atypical “represents discharges an provided by Although Lloyd- because it ing statute”. application evidence’ stan- of the ‘substantial expressly La Act does mandate a Follette dard”). one, hearing, in it does this case authorize observed, “provided.” § one was U.S.C. As Davis has Professor witnesses, trial, employee (1970) (“[ejxamination summary, or the law of review of [i]n provided required may gradually hearing in is not has moved from but dismissal cases directing unreviewability early complete the discretion of the individual in the almost fact, suspension pay”). century complete removal or without rather review in ac- to a regulations, pursuant promulgated Commission with the substantial evidence rule. cordance statutory authority, require expressly against a hear- Language the substantial use of and, ing. 771.307(b) (1977) persists good many more § in a 5 C.F.R. evidence rule still over, apparently implicitly also. In Ar opinions most 7501 itself does recent § but Zuckert, Kennedy, holding against nett 94 S.Ct. it is U.S. Brown Cir.1965), (7th the Justices L.Ed.2d 15 least six of certiorari F.2d 461 that, 7501 creates L.Ed.2d 486 concluded because 86 S.Ct. judicial that my colleagues20 performance employee cies work or be- with

ly agree assume, process the review in cases havior.”23 The court seems to descriptions of nearly important moreover, such as this are not that since was sent for actually does.21 What court Dr. Valle of her what because mind, regardless behavior,” kept performance employee should be “work use, while is that purport standard were causally his conclusions related to that our view of the evi- we will not substitute substantially behavior.24 Yet the court un- the evidence agency, for that of dence diagnosis -rightly, dercuts Dr. Valle’s I — which the relies must be such noting “serious doubts about think — has, exer- phrase, to use the court’s utility single-visit of a psychiatric evalua- “an informed discretion.”22 cised tion of 45-minutes duration.”25 Later “diagnos- court declares Dr. Valle’s I am not at all sure my colleagues, Unlike tic impression” was not supports the evidence in this case an adequate basis for an agency to assess informed exercise of discretion in the di- feasibility either of immediate employing agency chosen reas- rection signment likely or the placing later the Commission. court feels value of on leave-without-pay there was a nexus between Dr. Valle’s sta- tus. . . psychiat- medical conclusions “observed deficien- . Such intractable Maj.Op., “property” employment interest continued at-, cause, (emphasis hearing original). at 282 absent some sort of notice and It has tradition- constitutionally required. ally thought Id. at been that the substantial-evidence (Powell, J., considerably generous ju- 40 L.Ed.2d at 40 test affords “a more Blackmun, J., concurring) (“[t]he federal stat- ‘arbitrary capricious’ dicial review than the guaranteeing appellee employ- ute continued test ner, . ..” Abbott Laboratories v. Gard- discharge absent ‘cause’ for conferred on 136, 143, 387 U.S. 87 S.Ct. ment legitimate him a claim of entitlement which (1967). L.Ed.2d Since the labels have ‘property’ a constituted interest under the Fifth little, however, clarity might come to mean so employ- Amendment. Thus termination of his promoted be we to admit that most requires hearing”); ment notice and a id. at trying cases all we are to do is to ensure exer- 185-186, 94 S.Ct. at 40 L.Ed.2d at 51 cise of an informed discretion. The label “sub- J., (White, concurring part dissenting stantial evidence” would then connote a deter- conclude, part) (“I therefore, that as a matter agency mination as to whether the considered a process, hearing of due a must be held at some information, sufficient amount of “arbitrary and the label competitive employ- time before a civil service capricious” signal would a hold- may finally ee Here, for misconduct. terminated ing on whether the evidence considered was so Lloyd-La Constitution Fol- one-sided that a rational decisionmaker could converge, trial-type lette Act because a full question. not have reached the result in hearing provided by statute before termina- final, way by appeal tion becomes either Maj.Op., U.S.App.D.C. 23. at-,-& through employing agency], the Civil Ser- [the nn.22-25, 566 F.2d at 274-275 & nn.22-25. Commission, both”); vice or id. at J., (Marshall, at 40 L.Ed.2d at 74-75 Id., -, U.S.App.D.C. 24. at 566 F.2d at Brennan, JJ., Douglas (due dissenting) with & 274. process requires pretermination hearing a to adequate dismissal). determine cause Id., U.S.App.D.C. 25. at-n. Thus, F.2d pass muster, constitutional the statute n.34; accord, id., at at cannot be read to allow the entitlement it cre- -, (“we 566 F.2d at 274 are also not much ates to be denied without some sort of notice impressed psychiatric then, with the value of hearing. reality, “pro- In the statute Morton, appellant by hearing. examination administered vides” Dr. Cf. Reed v. Valle”); (“[t]his (9th Cir.), ‘diagnostic impres- id. at 283 25 A.L.R.Fed. 787 sion’ is little more than an 38 L.Ed.2d ultimate conclusion (1973) (Section unsupported by applying any expla- 469 hearings required 554 read as reasons or detailed might give either a statute it”); or nation that some substance to Constitution). (“[t]he id. defined, terms should at least be significance diagnosis Maj.Op., at-n.15, prognosis explained in reasonable detail and in 271 n.15. employee’s a manner that relates both to the projected capacity perform current and his Davis, Id. See also K. Administrative Law satisfactorily”). or her work of the Seventies 29.00 Commission, is undeniably ed of a terminology ric little assistance can be of evaluating nature well calculated to agency emotionally sway employing for an prognosis of and on the issue before extent one undecided him. the actual disability.26 psychiatric employee’s short, I my In am unable to shed very Dr. Valle’s ex- unhesitatingly that agree I substantial doubt as to whether the Com- ground for an too dubious amination is mission would reached the same result that could finding administrative but for its erroneous treatment of Dr. Eck’s But reassigned. have been feasibly I opinion.31 try medical would to read how the understand is same what I cannot the administrative decisionmaker’s mind examination, implicit suggestion its here, when, as the record does not clearly that nexus, underpins a decision sufficiently what the decision would indicate have been job she then was unfit for Accordingly, absent the error. I would re- held. allow it mand to recon- event, of unfitness the evidence any In having provided sider the matter after ap- and, strong, against exceptionally was not pellant procedural with the benefits she convinced backdrop, I am far from previously was denied. Dr. utilization of the Commission’s Eck’s was harmless. the absence opinion way indications one compelling

of more other, as to the Commis- any conclusion had it not enter- probable

sion’s outcome largely me as a

tained that strikes Nothing in the decision guess. uninformed AQUATIC EXPEDITIONS UNLIMITED indicates Appeals Examining Office ENTERPRISES, INC., corporation, opinion simply “out of requested Scott, Appellant, Norman caution”;27 it seems an abundance of equally likely or more of the correct result and was seek- unsure et al. SMITHSONIAN INSTITUTION inquiry ad- ing guidance.28 further No. 74-1899. Dr. Eck was the most critical dressed to Appeals, Court of States time; at that as the in the case question District of Columbia Circuit. notes, “went to the es- response court his deci- validity sence of the Argued En Banc Dec. 1976. Furthermore, response added sion.”29 Sept. Decided 1977. problem sui- a new dimension —that dangers if potential and homicide were cide job30 on the consid- appellant remained —a which, advert- though expressly eration question Id. at---of U.S.App.D.C., 28. was directed to Dr. Eck “in 26. The (emphasis supplied). 283 of 566 F.2d order to further evaluation of the medi- obtain agencies provide which the had relied in instructs an exami- cal evidence on Manual feasible, proposing [appellant’s] employee, prior . if removal. .” nation of the strongly implies discharge. Record at 21. This in itself decision to 752-1 Federal Personnel S.l-3(a)(5)(c) (“[t]o Appeals comply Examining Manual Office law, “impression.” requirements with Dr. of this Executive Order and satisfied Valle’s physi- question about the that has a capacity -, mental of an should Maj.Op., cal or U.S.App.D.C., 29. report physician who have a medical from F.2d at 277. employee”). proce- If has examined the formality, it would is to be more than dure quoted, 30. Record at 23. This conclusion was must more ade- the examination seem upon, but not commented in the decision quate Dr. Valle’s to be. than the court considers Appeals Examining Maj.Op., Office. at-, App.D.C., 566 F.2d at 276. Contra, U.S.App.D.C., at-, Maj.Op., 184 supra. F.2d at 31. See note 13

Case Details

Case Name: Jane Doe v. Robert E. Hampton, Individually and as Chairman, U. S. Civil Service Commission

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 3, 1977

Citation: 566 F.2d 265

Docket Number: 76-1090

Court Abbreviation: D.C. Cir.