Lula A. McGlasson v. The United States

Lula A. McGLASSON

The UNITED STATES.

No. 186-61.

United States Court Claims.

June 1968. Durfee, JJ., dissented.

Skelton and entitled to

ment is not petition recover that the is dismissed. and McMurray’s opinion, as Commissioner it, we have modified is as follows: brings recover Plaintiff action to period accruing pay during back allegedly unlaw- time in which she was fully separated from civil her classified position. service covery She must be denied of the Civil because the action upon based Service Commission was material and substantial evidence no procedural errors involved. Plaintiff, veteran, a preference Heise, Jr., a Washington, John I. C.,D. eligible under attorney the Veterans’ Preference record, plaintiff. for 1944, Act amended, 58 Stat. Edgar Twine, Washington, C., H. D. (1964). U.S.C. 851-869 com- §§ She with whom Atty. was Asst. Gen. Edwin menced her Federal service on March Weisl, Jr., L. for defendant. April 18, 1951, began 1942. On she em- COWEN, Judge, Before Chief and ployment with the Air United States LARAMORE, DURFEE, DAVIS, SKEL- Accounting Force and Center Finance TON, NICHOLS, Judges. and (hereafter Center), Finance and was a clerk-typist GS-3 of her the time OPINION separation. Early in Finance 1959 the filed application Center with the an CSC COWEN, Judge, LARAMORE, Chief plaintiff’s disability for retirement. Judge, DAVIS, Judge, and delivered the following opinion and announced the Tish, Disability Dr. Chief of judgment of the court:* Section, Division, Retirement Medical This case formed referred to former Trial that the medical officers MeMurray, pursu- “totally Commissioner Paul H. of the CSC felt that she was ant to the order of reference Rule for disabled useful efficient service 57(a), findings clerk-typist,”1 as a directions to make her case adjudicated fact and recommendations for con- would be on the available clusion including law. file, The commissioner did so evidence her record opinion presented report an spec- filed on Feb- her a within ruary Exceptions receiving 1967. request to the com- ified time. After for a opinion hearing plaintiff’s attorney, missioner’s a were filed from Dr. by plaintiff and the case has been sub- Tish informed no decision argument mitted the court on oral of had been reached in she but case parties. given counsel and briefs of would be examina- agreement opin- Since we are in tion. with the His letter informed her that ion, findings, following and recommendation of the determination would be made (cid:127)commissioner, them, psy- receipt we have modified the examination and adopt report. we same modified as chiatrist’s Plaintiff was told judg- basis our hearing concurrence there was need for she * concurring opinion NICHOLS, summary judgment. These were exhibits Judge, opinion dissenting trial, and the introduced into evidence at SKELTON, Judge, DURFEE, objects, party in which but neither court’s Judge, joins, opinion. part follow this consideration of these exhibits as record. the trial quotation 1. This is from of defend one exhibits attached its motion for ant’s May 1, 1959, right appeal aide, an unfavor- nurse’s Mrs. Montano, weight, plaintiff's decision. recorded able height and other A measurements. arrangements plain- Dr. Tish made performed general Masten ex- medical Denver, Colorado. tiff to be examined plaintiff. psychiatrist, amination of A for Medical an He sent Authorization performed Overholt, ex- Lewis C. (hereafter Examination, CSC Form 3135 amination of which consisted 3135), Veterans Adminis- Form neurological psy- a examination and a The Regional Office Denver. tration chiatric examination.3 Dr. rec- Overholt medical to a form used authorize was testing psychological ommended plaintiff for considera- examination of psychologist. was later conducted possible Civil in connection with tion disability Form plaintiff Prior to retirement. his examination of Service gave her position, Dr. Overholt had no information concern- 3135 listed ing birthdate, application plaintiff was on that the other than the data listed stated wishes, against described Form his and 3135. Dr. made filed her When Overholt reaction, report disability “Schizophrenic the additional information as concerning plaintiff type.”2 directed Form 3135 his notes taken Paranoid were during general and data medical examination the examination. Before the plain- concerning CSC, neuropsychiatric to the examination was sent following psy- accomplished. report Dr. of the tiff be Overholt saw report. chologist, paragraph printed on Form 3135: not his but did alter was report Dr. of two Overholt’s consisted diagno- your findings, report Please pages “His- divided into sections entitled accompany- sis, on the and conclusion “Neurological tory,” Examination” and form, ing report conclude and medical diagnoses as “Mental were His Status.” stating report your examination follows: person IS or IS whether above NOT chronic, reaction, totally Schizophrenic efficient un- and for useful disabled noted, partial position type, remis- stress, above differentiated service precipitating found the disabilities sion. or External whether not alcoholism, disease, predisposition determined venereal are due to Impairment, reasons Your severe. habits. this examination. or vicious disability Competent.4 for a “total” conclusion fully stated. should be day On Dr. examined prepared report under officers on Form medical Masten 3178, Report CSC Dr. Tish and disability for supervision of Medical Examination evaluate all respect (hereafter initiated with Civil Retirement retirement claims Service 3178), primary purpose of employees service for Federal Form recording to in the type general report judgment medical of a own their use required and on this form examination. Instructions extent examinations necessary for a information deemed were: proper determination. please full examiner make will directed, disability reported, report complaint to on each Plaintiff alleged Hospital is or found on examina- Administration Veterans “merely expand scope this was 2. testified that commissioner’s Dr. Tish granted by subject guide psychiatrist court, what as to was condition”, presentation alleged and that “such further was clearly appears necessary” by to be. considered both what parties. By denied of Claims Court 3. order judgment summary 4. and direct- Dr. testified that the word “Com- motion for Tish single petent” “only proceedings compe- on the means that she is “further ed handle, question tent That whether function. is all standpoint Dr. Lewis we are interested from the examination a medical any diagnosis so, annuity and, Overholt, Jr., pay of the funds that we her.” C. resulting a motion Later therefrom." respect Overholt, disability conclusive with for useful were If total tion. established, please because determination efficient service disability began. section Tish and officers in his medical total show when such in such look reports detail Form 3135. substance instructions See also evaluating when space of Form 3178 end Near the undis- tirement claims. In view of the conclusion. medical examiner’s puted testimony more Tish that no data was reviewed the time the Prior to “clerk-typist” information than the title identity individual, un- by the some plain- required in order to evaluate following known, typed statement posi- suitability particular tiff’s tion, space provided: de- that a more one can conclude Patient disabled. necessary. description tailed Disabilities not due to venereal informed When disease, alcoholism or vicious habits. appealed, her, retire she decision to of determination Tish reviewed the Neither Dr. responsible Masten nor Dr. Overholt disability in his arrived conclusion, retirement for that and there considered Another reviewer division. evidence in the record which indi- Tish, by Dr. the ease after review cates to responsibility whom such can to the be and submitted the case was then attributed. Dr. Masten recorded noth- ing Appeals of the pertaining and Review CSC Board of psychiatric involuntary proposed condition, which affirmed the but referred to Dr. Overholt’s report. disability course In due diagnosis retirement. Dr. Masten’s after annuity. conducting physical was retired on a examination of plaintiff was halitosis. be should and, as not attack Plaintiff does unexplained noted that statement scope of on discussion below typed phrased on Form 3178 is in terms indicates, judicial probably can review of the paragraph directive at the bottom successfully the substance attack of the form. report on which the gathered by The data hospital Plaintiff's based determination. its sent to Disability Retirement Section as fol be contentions summarized by the CSC and was reviewed Dr. Tish (1) improperly denied lows: the CSC and another doctor in accordance with hearing; (2) motives a procedure. usual Dr. Tish testified that the entire the Finance Center tainted independently each doctor concluded that reg- (3) procedure; the CSC violated “totally examining disabled for useful requiring ulation and clerk-typist efficient service” as certain informa- doctors be furnished tion; * * * because a “nervous disorder (4) Form 3135 on directions listed schizophrenia.” Despite the that the fact violated; (5) mysterious state- were reports medical had various be- officers Form space on ment in conclusion fore them and that at least of them one (6) Dr. prejudiced plaintiff; 3178 assumed that the conclusion Form on properly his own review Tish could 3178 response was Dr. Masten’s dis- will be contentions decision. These 3135, on directions Forms their First, 3178 and how- order. cussed the above disability determination or conclusion of recognize that ever, appropriate to it is not, explained below, as influenced invol- scope cases the untary disability of review They the statement Form. on 3178. is limited retirement regard disability the determination of Act 16 § Retirement the Civil Service purposes retirement to be sole (1956); (c), § 5 U.S.C. 758 70 Stat. responsibility of the CSC and not (1964): 2266(c) examining of the doctors. dis- dependency Questions * * * ability determined be shall psychologist’s Neither the nor decisions its psychiatrist, the Commission of

307 with final and conclusive subject to review. respect to such ^[*] * matters shall * shall not be review. Errors standards alleged by plaintiff reversal fall short of judicial The Finance had stat Center has court applying provision this utory authority application to file with United States followed decisions requesting plaintiff’s the CSC retire Appeals District for the Court ground disability. ment stating Circuit, in Gaines Columbia (1920), amended, Stat. U.S.C. 497, 501-502 United 2257(a) obviously (1964). cert, The CSC § denied, (1962), 871 U.S. processed application one for (1964), fol- 9 L.Ed.2d S.Ct. involuntary disability. retirement on lows: Plaintiff contends she should scope of that the it is clear granted hearing by the CSC. judicial in connection review regulation provid There no statute or very narrow. retirement ing right hearing re Act Retirement The Civil Service cases. The re tirement clear that rule is admin- empowers the Commission arising proceedings moval under the Re provisions and ister retirement comply tirement Act need not with the necessary proper rules issue procedural requirements of the Veterans’ 2266); the regulations (5 U.S.C. § Lloyd Preference Act of 1944 and the of dis- provides questions Act also LaFollette Act. Kleinfelter v. United ability “shall determined 929, 932, 318 F.2d Ct.Cl. 162 with its decisions Commission and (1963).5 93-94 of a This court’s denial final respect shall be matters such summary coupled judgment motion for subject not be and shall and conclusive directing with an order trial on 2266(c)). (5 to review” U.S.C. § limited issue of Dr. Overholt’s examina Appeals District for the of Court tion indicates that it has reached the already in- has of Columbia Circuit same conclusion. possible of nature dicated the limited scrutiny retirement court brief discusses the Plaintiff’s Brucker, U.S. [99 cases. Ellmore v. motivation of filing the Finance Center 736-737, 734, 1], App.D.C. application. nothing F.2d 236 There is cert, 955, faith; denied, [77 S.Ct. 352 U.S. to show accordingly, good CSC acted bad ; Murphy 329, v. Wil- presumed. 1 244] L.Ed.2d is faith 4], U.S.App.D.C. F.2d son, 236 F.Supp. [99 Knotts v. United 121 737; U.S.App.D. Dulles, 630, (1954). v. [99 128 489 Smith Ct.Cl. The motives cert, 742, 739, 740, de- 6], F.2d of C. 236 the Finance Center are immaterial 329, nied, 955, Dulles, 1 L. S.Ct. [77 352 U.S. action of the CSC. Smith v. 244], most, set App.D.C. 739, can 6, At court 99 Ed.2d U.S. 741 236 F.2d cert, (1956), 955, aside denied, determination 77 Commission’s 352 U.S. valid) only recognize (or 329, refuse to as S.Ct. 1 L.Ed.2d 244. The court’s de- remanding has been a substantial order where parture this case com procedural important missioner after denial of the motion gov- judgment rights, summary a misconstruction to fore would seem legislation, erning error like close force some this issue since fully presented pursu “going administra- heart of the it to the court summary determination.” ance motion. tive Brucker, Kleinfelter, 99 5. cited Ellmore v. D.Ed.2d 243. In addition The court (1956), 1, supra, U.S.App.D.C. U.S.App. Dulles, 236 F.2d see Smith v. 99 734 cert, cert, 329, 955, 6, denied, 739, (1956), 352 U.S. 77 S.Ct. D.C. 236 F.2d 740 Wilson, 244; Murphy denied, 955, 329, 99 352 1 L.Ed.2d U.S. 1 77 S.Ct. L. 4, (1956), 244, U.S.App.D.C. F.2d Ed.2d 236 737 with the dealt issue cert, employee’s right denied, hearing. 1 77 S.Ct. to a U.S. (4 Wall.) 435, Plaintiff contends that Dr. Over v. United 71 U.S. (1866). says holt should ground back furnished 18 L.Ed. Plaintiff background information She CSC. value information points regulation (21 Fed.Reg. apparent, ato CSC and thus to contend that seems (1956), made, reported 8263-8264 29.12 C.F.R. § an examination or evalu- (a) (4) (1961)):' without the ated benefit of such infor- mation is insufficient on which to base a Where the nature of the proper degree of the determination reported mental to be a condition disability. Medical officers in the re- or other condition of such a nature tirement division of the use their prudent physican that a would hesitate judgment respect own to the nature to inform an found individual to be and extent examination and infor- suffering from such a its condition mation on which to base their determina- outcome, probable exact nature tion; 29.12(a) interpret do not § complete summary of the medical evi- (4) does. case, including copy dence in his irreg- reported resume of the behavior It is not the function this court to ularities or isfactory of unsat- manifestations prescribe the nature or extent of infor- ordinarily service which is which the ex- mation amining CSC will furnish background evi- furnished factual them doctors in order to assist government dence to medical facilities making required medical examina- psychiatrists physicians or other report. tion who conduct the retirement official examination, medical shall made CSC “authorized and di only by duly available review rected to make such rules physician designated licensed writ- regulations necessary ing purpose by for that the individual proper” to administer the Retirement [Emphasis supplied.] concerned. Act. Civil Service Retirement Act § 16(a), (1956), 70 Stat. 758 5 U.S.C. § paragraph paragraphs This dealing one 2266(a) (1964). Plaintiff contends pro- with the circumstances and paragraph the Form of directions in under cedures which records and docu- complied 3135 must be or the entire may ments be disclosed to interested process language is invalid. The of that persons. paragraph request in form of a is emphasized por- Plaintiff on the relies to person non-Civil-Service-Commission above-quoted provision tion of the to nel. That fact in not de itself need be her sustain Supreme several contention and cites terminative. See way from discussion Green- support Court to decisions permissive cert, States, 350, v. United 175 Ct.Cl. proposition language in a denied, 881, 167, 385 U.S. 87 17 S.Ct. regulation given mandatory should in- be (1966) provides L.Ed.2d 108 terpretation when warranted the con- answer, stating in 5: footnote Supreme text. The in Farmers’ Court Monroe, & Merchants’ Bank N. C. v. Nor is there indication Va., Federal Reserve Bank of Richmond hand- contents thereof [a 649„662-663, 651, 656, 262 U.S. promulgated S.Ct. 43 book] were ever (1923) regulation. 67 L.Ed. “that is 1157 stated form of a Informal memo- context, subject-mat- where the or the randa or documents of kind this seem- ter, compels Clearly ingly only such construction.” directed internal man- .to phrase plain- agement the context of the on which do not confer substantive compels rights tiff relies conclusion employees to recover lost phrase merely permissive, salary if suggestion whenever some descriptive customary practice. working rule contained therein is not prevail public Plaintiff could supervisor. if a observed DeBusk v. right terest or an States, 790, individual called for United 132 795- Ct.Cl. cert, mandatory Supervisors 988, a (1955), denied, construction. 796 350 U.S.

309 437, at 897. (1956). 292 F.2d ulation.” Id. at 854] 100 L.Ed. S.Ct. [76 analogous regula- here situation There is no requiring mandatory a formal a deviation Even par- construction rights a third not vest tion does question. regulation the clause issued ties when guidance certain merely arbitrary capri- A decision based on Construc- agency personnel. arbitrary Centex be an cious evidence well States, 162 Ct.Cl. v. United tion Co. capricious The statement decision. (1963). 211 space 3178 on Form the conclusion obviously arbitrary if an statement ibid., plain case, held that Centex The merely error. Had clerical was not a standing contract to attack lacked tiff CSC, accepted such statement been designed regulations the benefit influencing thereby the administrative language disputed The the Government. determination, retire to the decision regulation. Even a is not in Form 3135 not stand. state- it is regulation, terms its it were ment, however, completely imma- process data-gathering directed to the such, it was terial to the decision. As rights procedural conferred and not to Spec- plaintiff’s not harmful cause. object upon plaintiff. of the clause tor, Putschoegl, supra, supra. See opinion as Form is to solicit 3135 Gaines, Knotts, supra. supra; In totally dis plaintiff is or not to whether context, egregious er- particular relatively opinion unim abled. Such typing did ror in in the “conclusion” be portant the CSC to the decision by the CSC affect determination regards alone itself as cause particular, it is ease. authority having deter make significant appear- “conclusion” may not disability; mination Masten, who ed on the of Dr. argued deter could that Dr. Overholt purport psychiatrist, was not did subject whether mine give plaintiff psychiatric examina- (1956), 5 U.S. 758 retirement. Stat. tion, only physical defect found 2266(c) (1964). failure C. If the § not con- halitosis. Dr. Tish did error, it is is in comply with the clause sider this “conclusion” judicial nonp error. re harmless Spector paid to it. evaluation and no attention Ct.Cl. 33 v. United cert, A review of denied, (1964), 379 U.S. record, including reports of Dr. (1965); the full S.Ct. Putschoegl 13 L.Ed.2d Overholt, Her psychiatrist, and Dr. v. United ring, psychologist, as well as other (1964). CSC, material shows that before the cases sustain Plaintiff cites several sup to there port evidence was substantial on Form that the clause a contention plain the that CSC’s determination binding each on the CSC. In 3135 tiff Tish’s Also Dr. disabled. authority an administrative case cited whole, testimony, read shows that for promulgated issue material the details considered the substance purpose providing individual of the the reports, together of these with the other rights In Daub or benefits. certain with him, and that the CSC materials before Ct. 292 F.2d v. United performed duty In the to it. entrusted (1961), Cl. the with regula- court dealt light the of on limits our narrow penalities of contained in table determination, power to review we that suggestive The table itself tion. say any cannot error that there was reg- binding or conclusive. “going evaluating to that applied required penalties be that ulation heart of the administrative determina spirit fairness of with in accordance Scroggins United tion.” See held expressed court therein. The day. Ct.Cl., 397 F.2d decided this by the spirit of violated fairness was lack of Plaintiff contends that data imposed consti- penalty to so as actual regarding clerk-typist position reg- of “gross misapplication of tute judging precluded fairly subjects the CSC sion’s action here under review job. suitability plaintiff involuntary In view of retirement testimony par- authority 2257(a), of Dr. Tish that this under of 5 U.S.C. § position psychiatric disability. ticular could be with- because evaluated of We knowledge published out are detailed of not referred case duties, it cannot be evalua- standards said of what constitutes such dis- arbitrary capricious tion ability. Psychiatric or disability suppose I any way prejudiced. necessarily person was in mean does not is, therefore, subject insane, deficiency This issue is fect, or de- has mental disposition same as the placed contention to be in an institution safety, needs space statement in the conclusion for his or others’ or is in- own disability on Form capable managing property de- affected his own termination. There and funds. are conditions short psy- of these due Plaintiff’s contention that Dr. last causes, be, chiatric are believed permitted Tish should not review which render the afflicted individual disability. his own decision total Had is, ordinary “unemployable”, speech reviewing person Dr. Tish rendering incapable useful service his decision or had the final decision organization assigned large job in a him, might rested with be merit department For such as Federal is. merely to such contention. The case was CSC, its made notices give oppor- resubmitted to him to him an clear, unemployability is and any tunity to review decision before what the latter mean in word Appeals was considered the Board of other context is irrelevant. This is nat- and Review of final adminis- organization ural with concerned trative action. persons employment in their relation foregoing For the reasons Government, private not their petition not entitled to recover6 and the lives. should be dismissed. agencies Most Federal do not main- periodic psychiatric tain checks their Nichols, Judge, concurring. though employees, do some are said to agree that the in this action category agencies so. former ought peti- not to recover and that the a condition of nor- plain- tion must be dismissed. I think mally suspected to be comes because proof. tiff failed to sustain her burden of contemptuous and behav- insubordinate plurality I am join unable to with a ior, inability to make decisions com- adopting the court in the commissioner’s plete assignments, work or other forms Findings Opinion detailed modified conspicuous unhelpfulness job. on the light as its own. In of the dissatisfac- Frequently, though invariably, dissenters, tion stated our would employee being suspected psy- who is joined reopening the record to chiatrically passionately disabled will include relevant material not found now bitterly oppose any suggestion that he re- therein. voluntarily. too, Frequently, tire in such seeming cases, evidencing psychi- At the risk of labor the behavior obvious, begin important disability displays inefficiency it think to atric also by noting agency rules, making that or a the Civil Commis- it Service violation Having ability, 6. concluded that conten- no evidence to show she had but dis- tions lack merit is no need to some of the exhibits attached to her brief opposing cuss contention defendant’s motion for defendant’s sum- this, ready, willing mary judgment point. and failed show she was bear to on De- able fendant raised in to resume her duties. This defense first this issue late by ability perform way proof her trial of an offer focuses to which work and on Dr. was refused. relies Overholt’s inability. Plaintiff evidence offered

311 cases is separa- in retirement employee’s view possible to obtain the tion ple, v. and Seebach A. means 85 S.Ct. willingness view the difficulties unemployable facie, course of action If the carries with otic. (N.D.Cal.1963), United 9, 1964), see employee, agency ordinary charges. least, 1331, support. retirement States, litigation reported cert, v. it a modest out on turn elects 14 high-minded aff’d 338 Cullen, 182 denied L.Ed.2d Disability agency a to act Ct.Cl. likely person it 224 appear, street 380 U.S. due F.2d 663 choice As an exam- pension. 342 268 one, F.Supp. by as Seebach retirement to an without (1968); way (1965). caused deems prima, quix- 972, un- (C. 15 In Accord, rights, to the heart limited and confined departure ing legislation, mination.’ 936, U.S. 929, 158 Ct.Cl. said at (1965). and the reached, ceiving it, ** 931 83 S.Ct. ^[******] 855, a p. Cerrano (2d * misconstruction In ” 497, 502, 86 S.Ct. 931 of 339 F.2d: were Commission’s of the The evidential Cir. Cerrano, 309, Gaines v. United well clearly 1964), important some 9 L.Ed.2d 271 administrative cert, Fleishman, 106, as the to supra, like error cert, denied, within denied 15 method of the “a matter L.Ed.2d conclusions substantial procedural the court 339 371 U.S. govern- (1962). States, of re- ‘going deter- F.2d used area 382 93 authority employee of its and cannot ac- exclusive in connection with Even obviously be disturbed. tions motivated less employee’s welfare, held we have originally This case came before us strong presumption that offi- there is summary judgment on cross-motions for good and faith are cial actions taken it, and as understand the defendant’s proof of bad faith allowed, except have motion would strong “requires especially evi- situation dispute put forward factual States, Ct. dence.” Gibson v. United Dr.-Overholt, as to whether 102, (1966); v. United Keener Cl. psychiatrist, examined shown (1964); 334, 339 165 Ct.Cl. diagnosed her in the administrative F.Supp. Knotts v. United record, actually did We referred that so. (1954). we In Knotts commissioner, issue our p. F.Supp. at 631: said at way have, these often his in- cases so ****** quiry out, greatly our broadened with disputes are hard Personnel making permission, up ended he so, undertaking we to do solve. Findings sweeping covering the whole presumption start out with the history he Nevertheless case. good We faith. official acted rulings reopen did not reconsider always to the con- are to find loath excluding had made on the evidence take, takes, trary, and should ground original of the narrowness irrefragable well-nigh proof to induce The result issue. * * * us to do so. indulge going incomplete. If we are gainsay, ute Third respect and conclusive and have held review.” There is “Irrefragable” disability, involved, Commission ^[******] Internationa] to such matters deny, (5 finality U.S.C. “shall the extent and its means, refute,” shall not be language Dictionary. is, be determined § 2266(e)). “impossible to shall per decision judicial Webster’s subject be final question stat- We re- uments we the record is much of er’s the record fied, indicated surplusage and should be eliminated. entire I think I am stick to the Opinion indicate, administrative sweeping properly sufficient, Opinion get we’ narrow review Findings, entitled authority all should record for the but in that event scope the court. to pertinent even Findings first cited, commission- consult of review as modi- reopen supra, pur- doc- If 312 determining adjudi-

pose pushed whether the Of course idea cannot be far, fragments any rate, technique too cation of this case on but at Weiss, say proper, I done. record is and that have was valid enable us to in papers The court include a number that: apparently to us as documents came opinion final af- JAG part of file the administrative on justifica- forded documentation cross-motions, in either offered but were Secretary’s decision, tion for which ex- commissioner he needed and for. waited cluded, or else not even offered. were evidence, as to which there no direct perhaps, inappropriate to would equally it is draw valid enable us to by the consult evidence admitted not herein, certain fact I do. conclusions order, g., propose commissioner reversing e. in turn, therefore, apol- I without further facts, I him but that ogy, history re- claim as doing. however, Osage Cf., not Na- am papers. vealed do not in court tions of 97 Indians v. United obtain facts about the case cert, 381, denied, F.Supp. 592, 119 Ct.Cl. other source. 896, 230, 342 672 U.S. 96 L.Ed. S.Ct. Plaintiff, veteran, typist was a clerk (1951), judicial took notice in we Accounting at Air Force Finance array material, of an of historical not Denver, Center The Air Colorado. Commission, before the cluding in- Indian Claims request- Force sent a letter to the CSC par- a lawsuit between different ing involuntary under the retirement court, ties in another in order reverse law referred to above. That letter is findings. Judge certain of its fact Chief it administrative file but lists Judge Jones and Howell would have enclosures the lower left hand corner manded to the Commission for considera- which are now attached. One what, (which tion of the new material these, certain, I am have must been an alternative, here) except as-an I would do plaintiff’s job. account of behavior on the deemed that ex- this court was Where, presume unsatisfactory here, Ias ercising equity powers. performance job, place on the first generates suspicion of mental dis- I think we are entitled consider ability, where, here, ability what our court for the records job satisfactorily do the control- purposes limited I consider it. Fletcher ling consideration, is inconceivable Evening Newspaper Co., Star 77 U.S. report cert, such a 99, App.D.C. (1942), 133 F.2d 395 forthcoming. The Air Force also refer- denied 319 U.S. S.Ct. diagnosis D., Hilton, red to a a P. M. J. Merhar, (1943); L.Ed. 1708 Porter v. Denver, who sent a letter marked (6th 1947). 160 F.2d 397 Cir. Personal and Confidential to a Dr. dissent, Like the draw certain Center, stating Albers of Finance plu- ferences from the record which the condition rality recognize, only does not mine schizophrenic reaction, paranoid g. different from the E. dissent’s. type. That was offered in evidence and presence dissent infers “hatchet the commissioner it. excluded When man” in the CSC and I infer a mere plaintiff Overholt, ap- went to see Dr. guilty “specu- blunderer. We are all pears Findings, gave him a she lation” if one likes use the word. long account of her of Dr. consultation Weiss v. United Hilton and He took down reasons. (1967), I stated for a unanimous part it of his which is court as follows: agency evidence. The her to had asked * * * go This court has sat to a Government and she at doctor years acquiring over refused, without finally requested per- some first knowledge things Judicial of how are mission to consult Dr. Hilton who was * * * private done in the physician. aggriev- branch. executive She became

313 Herring, psychologist, Dr. a against are shown transmitted him because he ed Findings. thing diagnosis in here a friend in the The curious adverse his diagnosis Naturally, testimony about this visit. Air Force. a anyone private She that proposed doctor had denied Dr. Overholt a retiree’s gave weight else time, her a test that than one more with CSC doctor, interoffice but claimed she examined a and an was Government Baumgarten. a Dr. file indicates The Government memo in administrative Baumgarten regarded by there Board of showed that no that it Appeals was was so only hospital in the commis- at the Review. It is the time and had, diagnosis plaintiff examination the that sioner’s of this that but exclusion argue a doctor of that name enables that the was added our dissenters to sketchy. roster afterwards. thus evidence Plaintiff was CSC caught diagnosis Why in a fabrication that could wanted another CSC obviously entirely but have been deliberate. I consider this is not clear but require enough justify important would dismissal under U.S.C. matter 28 however, my concurring opinion getting Inferentially, 2514. See § two. Finding Eastern F.2d have School United would shows 421, 438, alone, (1967). diagnosis acted and I do on the Hilton why sought ap- understand our another after it became commissioner’s Findings sweeping and parent plaintiff detailed include retained coun- had Baumgarten. sel, litigation no reference to going there and they probability all backed unless nothing wrong Dr. Masten found with Furthermore, down. diagnosis of Dr. Hilton’s use plaintiff except halitosis, but litigation might have embar- typed a foot statement at the by exposing rassed him him the port alleging that the charge, not, whether valid or disabled, Finding stipu- parties The 21. Aesculapian had oath. That violated his Dr. lated that neither Dr. Masten or regrettable, the ex- have been and evi- Overholt wrote there is no this diagnosis clusion the Hilton and the guilty party The dence who the was. Findings produce silence about it commissioner state- characterized this impression distorted as to substan- arbitrary capricious. ment That and tial nature of the before the an over-kill. No one instance verbal Moreover, impression is con- CSC. into out tary railroad the involun- veyed doctor, Tish, the CSC Dr. any- perpetrate retirement would Disability Chief Retirement Sec- thing of total dis- so absurd as claim tion, charge invented ability finding on a of halitosis. schizophrenic paranoic was a out thin seems to me that this is obvious air, up and our idea is taken dis- might clerical stance of error such as Finding senters herein. refers to the large occur office where state- fact the Air referred Force repetitively typed ments to be “disability diagnosis report by a in a agree entirely numerous documents. psychiatrist” though in fact Dr. Hilton clerical the commissioner that this say plaintiff did not was disabled and judgment error could not influence the say diagnosis did that his was schizo- of the CSC. reaction, phrenic paranoid type. “arbitrary capricious” The and terms Findings Opinion The describe judges epithets applied by law- requested how Dr. yers Tish new power, to what abuses of deem by persons “Arbitrary” from doctors attached to Veterans who have some. standing the same. Hospital plain- alone means about after the Administration legal having fight person pow- act retained coun- tiff showed arbitrary capricious er cannot sel, there. how went legal Overholt; Clerks do not have sense. reports psychiatrist, power. “arbitrary Masten; kind general Thus physician, capricious” against error” are and “clerical anti- ed accusations de- fraud concepts, taxpayer. cannot thetical apply accurately which both ceased sustained While we them, to the same act. There it was on the basis of evidence legal having anyone compelling, is no power we considered as to his actual statement, vigorous directed wrote the or state of mind. We had a dis- written, stipulations it to and be sent denied that evidence was persons evidence seem eliminate all sufficient. It stated that the evidence category in that whose names are before Mr. Irolla had a fraudulent intent “by sponte If wrote it sua his us. a clerk evade taxes failed show it clear forgery, might fraud, a convincing act have been a evidence.” It said mistake, or a by it not have been piling but could Government’s case was “made arbitrary capricious. or There is an- top inference of inference and sus- having possibility: person picion other top any suspicion, without legal it, sought pass power substantial, wrote but much less clear and convinc- statement, ing, it off Dr. Masten’s support as evidence to it.” unlikely, his me for own. That seems to agree legal I proof of fraud can- already given, the pleteness for com- reason not be assembled in manner. it. let us not exclude Since think the evidence as to existence of typing the statement above effect supposed CSC, “hatchet man” in signa- previously Dr. Masten’s affixed hypothesi ex forgery who committed or falsely appear ture make would fraud, be should tested in similar fash- statement, was Dr. Masten’s too ion, tested, and so must be found similar- forgery, or be a fraud and not ly put together. “irrefragable The arbitrary capricious. The offender’s assuredly evidence” test of Knotts is not legal power would be irrelevant exacting less than the “clear and con- passed statement he off as someone vincing evidence” If the “hatchet test. else’s. hypothesis fails, man” the case is one just

This honest exercise sterile mistake. Many and fre- semantics. of us is, The eyes civil servant in the quently arbitrary capricious in many, game always in In season. Gov- legal faith, meaning, good perfect personnel disputes, ernment civilian scope from a mistake of our charges of official bad faith are blithe- sufficiency powers lawful as to ly Any servant, bandied about. civil ex- exercising of the reasons This them. cept plaintiff, concerned such a con- frequently court calls actions of adminis- troversy may profes- find honor arbitrary capri- trative tribunals reputation issue, sional litigation cious, impugning that it sense party wherein he is not a and is not honesty or honor of their members. represented by counsel. And this al- hand, theOn other accuse no one would though he is a salaried man who has not forgery another of or fraud ex- without riding one dollar on the outcome of the pecting that the accusation would boom- case. It was considerations erang convincing proof. absent these, think, experienced that led the says, properly dissent in its view of the judge who opinion wrote the court’s facts, that we are wilful concerned with Knotts, supra, require proof wrong doing. My analysis I think has part bad faith on the of an official in- shown that we are here indeed concerned volved “well-nigh irrefragable.” shall be doing wrong with an issue of wilful commendably dissent is reticent notwithstanding mistake, versus honest naming the “hatchet man” who was “arbitrary capri- the unfortunate guilty eyes in its forgery of this terminology cious” first introduced into fraud. “irrefrag- I do suppose the case our commissioner. proof” able just should less be- F.2d cause Irolla v. United accused official left un- (1968), 182 Ct.Cl. 775 we consider- named. commonly displaying hallucinations psychi- retirement was Since the deterioration. and marked disability, behavioral for whatever atric and since dropped diagnosis was reason the Hilton psychotic dis- SCHIZOPHRENIA.—a diag- limbo, obviously into the Overholt of contact order characterized loss crucial, support though it nosis with environment and deterioration psychologist. testi- Dr. Overholt personality. remember fied that he did not personally, a The Dr. Overholt doctor. was V.A. except nothing plaintiff’s but psychot- general rating formula for V.A. suggest patent elicited to falsehoods was in the Davis ic is set forth reactions of his examina- that the written record case that on a scale of and indicates respect any material tion was false impairment” “severe means 70%. qualified to that make or he was argu- this, testimony, view of examination. concerning ments, findings was who plaintiff’s condi- Dr. Hilton had said “totally to determine was reaction, “schizophrenic para- tion was appears a disabled” to me to relate to diagnosis type”. noid Dr. Overholt’s to involve some ministerial function and was: splitting of retire hairs. The failure to pension have a been a would chronic, reaction, un- Schizophrenic shocking miscarriage justice, as both partial type, remis- differentiated employing agency. to her as to stress, precipitating External sion. predisposition determined In the Russell case the had Impairment, se- this examination. finding by record a a in his medical Competent. vere. reading non-psychiatrist perti- doctor part: nent “Competent” simply meant reaction, paranoid Schizophrenic safely paid to pension direct chronic, type, im- moderate guardian her, so that or conservator pairment moderate. necessary. was not held was “evidence of men- We that this to before This the fourth case come is pertinent illness” that under tal involving plaintiffs months us six regulations, it an error of Air Force was having alleged sim to have somewhat discharge plaintiff order- law without sounding other The ilar disabilities. ing psy- psychiatric examination States, 183 cases Russell United are: of mental ill- chiatrist. “evidence - (No. April 30-65, decided Ct.Cl. stronger assuredly here far ness” supra, 1968); v. United Seebach case, reopen I even if we do not 19, 1968); (January v. Unit Davis suggested, have to admit all (1967). I ed placed that was before the CSC. began to take some think it is time we added that after “severe judicial these words notice what higher 70%, only impairment,” V.A. are, indeed, They mean. in common rating inadaptability,” “complete speech one can find definitions I are the com- take that these 100%. abridged just dictionaries, medical among insane, whom of course mittable plaintiff una that following dictionaries those are implica- not included. bridged. from I take the “competent” tion of word Overholt’s Collegiate: Seventh New Webster’s catego- to exclude from psycho- PARANOIA.—a rare chronic ry. If, however, classification by systematic characterized delu- sis person “competent” psychotic is taken grandeur persecution sions finding of “to- throw on CSC doubt usually with hallucina- not associated disability” the Ex- tal the result is tions. required apparently Branch is ecutive duty psychotic all status retain active PARANOID SCHIZOPHRENIC.—a employees except resembling the committable paranoia psychosis notwithstanding mony sane. the disas- he could not recall This whether impairment” ters victims of “severe him might themselves, private time, finally cause but he said persons obliged with the to deal who there must a “statement” of Government, him, the Government it- or to some kind. In fairness to the word “competent” self. this issue as what this case put see in his mouth really about, why cross-examining demanded has counsel and whether he my so much from broth- legally cerebral profes- effort meant inadmissible or not myself. course, ers and there exist Of sionally apparent. trained all is not at problems serious social who is Furthermore, during long course of protect, support, and maintain those testimony about impairment whose or under. reports Overholt and 70% other from the Y. do not think that in of Federal case hospital any- appear A. it does not employees Congress intended one advised him that when asked to tes- the the solution retention on should be tify about covered matters re- duty payroll. it, pro- I see the active As ferred to in written records he could visions for retirement with memory consult the records was pension provide prac- were intended to weak. they tical and I humane think solution. Testimony that the showed purpose in with that should construed brought had suit the in Colorado State hand, mind. On the other the Seebach against Courts Dr. Overholt and the ad- case illustrates that retirement ministrative file shows that she had getting is not the of rid of means Herring Dr. sued other the Denver employee may merely who contuma- judicial doctors well. I take notice cious or troublesome. any doctor, help that if he can it—and generally help give he can it—will not Herring reports Overholt, of Drs. testimony pros- court that will assist the and Masten went to Tish. He took Dr. against ecution of a law suit another Except the stand. for his ultimate con- apparent doctor. It seems to me that clusion that the was dis- testimony got Dr. Tish’s off into fanta- abled, nothing I think record tells us sy interrogated he whenever about really of reports. what he made of these the actions or of of advice one the other extraordinary He made the assertion suggests they doctors. The record that point one that he could not conclude materially did contribute final ad- signed by Masten, reports from the Drs. judication, keeps insisting they but he Herring they and Overholt that had did not. The failure to confront him although plaintiff, even seen the all with the records him in assisted this three said had done so over their evasion. signatures. Although re- he himself had quested analysis If he testimony Dr. Overholt of the Tish valid, told our commissioner that it was imma- indicates to me the court nothing terial that he should not concluded make a Findings, series of regards done, from it. solely it has As the record before based on the Tish tes- requested timony. him before he adopted re- I the Overholt would have set of port, severely place he Findings in one said that he had curtailed because of my competent psychiatric report.” inability “no anything Yet to believe Dr. plaintiff by he testimony told the letter at that Tish in said irrele- “totally time anyway. CSC felt of she was vance most of it Dr. Tish party disabled for useful and was not a I efficient service see reason to typist” psychi- deem clerk because defense bound his testimo- ny. time, atric psychiatrist however, condition. He At the himself same I can- agree anyone dissent, he neither nor with the that Dr. Tish prejudged headquarters else at CSC seen the case had or was committed plaintiff. point obtain the At another in his testi- There retirement. papers tion now in the court to show of evidence is not a scintilla evidence, files, anyone constitute with else either Tish the entire heard evidence record that was headquarters ever even had CSC pa- incomplete An selec- before CSC. the retirement until They in tion of evidence before cannot through. CSC pers were came prove evidence, possibly Denver, had no Colo- CSC Washington, D.C., she or even that it had no evi- substantial in Gov- faith claims of bad Most rado. joined example, I dence. the dissent actions, as for removal ernment urging reopen animosity court to the record Knotts, supra, reflect everything long per- and receive before that was arise in the course CSC, I but understand dissenters office. a Government contact in sonal desire headquarters do not this. en- anybody at CSC That feelings our towards tertained says The dissent that the Board CSC plaintiff requires postulation some Appeals referred the and Review circumstance, the nature markable plaintiff’s appeal to Dr. Tish and ef- guessed. The sur- even be which cannot fect was cision, his own de- asked review suggested provides much mise above applied per- to which the Board explanation more natural and believable functory stamp. At risk rubber testimony. the Tish being tiresome, say again that we will agree the dissent do not have before us in all show testimony by itself fails Tish’s Board, the record it that evidence before what, any, that plaintiff we so do know not dissent, was disabled. they corroboration of Dr. Tish’s views erroneously the de- however, assumes had, have besides own state- his to proof as fendant had burden speculation It ments. is mere whether to plaintiff’s intended If counsel perfunctory this. their consideration was issue, challenge on the the Government otherwise. not, he did the burden as it clear is agree I do not the excoriation of him. He have been on would dissent, I Dr. Tish our but delivered show, just a lack of substan- not had to very sorry happened not it has be- am this, any. he evidence, To do but of tial I It to believe he it. cause asked for put the court to would have had hoped henceforward that CSC that was before the entire record testifying impress upon on doctors will itself, just testi- not The record CSC. their its behalf on obligation issues failing mony by person it with a about to to the court is tell com- Thus, memory. He not do this. did truth, plete precedence and this takes testimony giving fullest its Tish obligation their other over shelter only it tends show force But can in- doctors. I do not think we diag- Masten, Herring Overholt, profession. an entire some- dict thing Until inadequate. he not But did noses were change the men- is done to medical had, not he and was remember what else tality judges juries must our memory. His his to refresh allowed justice achieve as much can “competent” evi- he had no statement requiring testimony. medical cases light of his must be dence construed by pre- circumstances cannot be cured he did ultimate admission tending they exist. do not had, must have member what he only plaintiff’s it, therefore, I see as- As able The dissent can “a statement.” really try to counsel did not to show that fails “statement” certain it, by looking support lacked in the support CSC decision the CSC action evidence, put says must he did precisely I and the case which is what do, in omitted much not received that would have it was because urged along however, dispensable holding for a is, evidence. assump- above, lines. Evidence was before I think unwarranted an Therefore, doubly operative I ob- is not before us. term becomes when findings ject sup- that are relevant on substantial evidence to theory port that we have reviewed the action taken. evidentiary proceedings for CSC ciency. suffi- present Most of these elements are object findings I based here. The unauthorized conclusion testimony. On the record as Tish’s illegal Dr. Masten’s was both If, it now is cannot recover. arbitrary, enough and was to void the however, suspect body we that the entire proceeding. whole If there were insuffi- evidence before CSC was taken, support other facts to the action determination, we cient sustain its they were outside the evidence. Conse reopen the record to find out should quently, the administrative determina suspect what If we that evidence was. alleged disability ap tion of presence “hatchet man” in CSC pears to be an unconscionable abuse of forgery who committed or fraud to se- discretion, executive trary arbi plaintiff’s retirement, cure should we capricious supported and not dispose speculation: of this case on following substantial evidence. The we resolute should make a effort to as- discussion will demonstrate the reasons operat- certain who he how “going for these conclusions error ed. the heart of the administrative determi question nation.” This is a of law SKELTON, Judge (dissenting): always which is be determined Although court, hesitate, rule, because it to ex involves the correct dissent, press standard feel bound to do so in administrative decision. argued this plurality opinion, After If could case. a careful review of the did point, par not raise briefs of the such failure would ties, wholly transcript, exhibits, and the I be immaterial. This an issue unhesitatingly “ legal conclude that law and not the this case kind of issue ” piscatorial.’ litigant as to an odor Alin which a ‘exude[s] can the court bind press co Life point. Ins. Co. failure to v. United 373 F. raise or 336, 341, (1967). 2d Our decision J. A. Jones Constr. Co. States, (February 1968) v. United 390 We are authorized to set aside the 886, 889, F.2d 620, 182 615, Ct.Cl. (CSC) Civil Service Commission’s deter- squarely point. There we said: involuntary mination of in an position though We take this even proceeding, retirement ognize or refuse to rec- plaintiff (and did not contend indeed valid, it as where has specifically disclaimed) that the Gov- departure important substantial ernment should be held liable for what procedural rights or some like error “ the Air Force knew but failed to dis- ‘going to the heart of the administra- ” and, close. This an issue law tive determination.’ Gaines v. United moreover, legal cert, the kind issue 497, (1962), 158 Ct.Cl. 502 litigant perhaps to which a can denied, 936, 309, 371 U.S. 83 L. S.Ct. bind the court to raise (1962). Ed.2d pear ap- There does not failure press point. or ity Defendant’s liabil- meaning to be a well-defined of the knowledge (in for the Air Force’s going term “like error heart of here) seems us circumstances determination,” administrative al- very clear, justi- we would be though many the courts use the term in deciding fied in for the defendant— cases. It would seem to include within possibly simply because meaning any arbitrary its capri- — argue persuasive chose less action, any cious or unconscionable * * * grounds. [Emphasis supplied.] discretion, abuse of any executive ac- tion evidence, based on also, Contracting facts outside the See Corp. John A. Johnson illegal or fraudulent F.Supp. evidence. v. United Under circumstances, (1955). these “application on the form wrote filed against Dept, employee,” wishes of the Unauthorized Consideration inferentially thereby indicating Totally Disa- “Patient Statement employee’s mental bad condition was so the Adminis- the CSC Voids bled” department had to take action. Disability Determination trative qualifying There no were words on plaintiff’s em- recalled that It will be “alleged” the form such as disabilities ap- Center, filed an ployer, the Finance “appear rather, disabilities to be” but plication for her the CSC persuasive phrase positive shows The evidence retirement. “Schizophrenic reaction, type.” Paranoid of an application because this was filed astonishing is all the more This view agency psy- alleged alleged report of an psychi- fact that Dr. not a Tich is 4.) (Finding Neither chiatrist. atrist; examined, saw, never much less identity report nor the contents of the plaintiff, did not ev- psychiatrist into was admitted competent psychiatric him “a examina- case. idence tion.” These facts are mentioned application, Al- result of this aAs up questionable point nature of Disability Tish, Chief of the exander proceedings early stage. at this Division, Section, Medical Retirement any event, In not have Dr. Tish did Commission, informed Civil Service sufficient evidence on base a medical offi- letter disability, determination of total “totally dis- felt she cers of the CSC on the the ex- directions form instructed and efficient abled for useful service amining physicians to furnish that clerk-typist,” be and her case would formation. Form he sent to 3135 which adjudicated on the basis of available Region- the Chief Medical Officer of plain- response, file. evidence in her al Office of Administration Veterans hearing. requested protested tiff authorizing Denver, Colorado, the ex- that Dr. notified Tish then plaintiff, amination of the directed that had been decision following: reports made on the in her case and that she reached examination, given 1. General medical examination: hearing. given not be that she would -X- -X- -X- orado. Medical Examination Dr. Tish made He sent to be Veterans examined in arrangements Authorization Form, Administration Denver, Form Col- Competent 5. Nervous guardian necessary? Neuropsychiatric x- n ^[*] system: ^[*] handle » n exam, funds or is ^[*] authorized. -X- Regional au- [Emphasized portion used to Office which was handwrit- was the [Emphasis supplied.] thorize medical examinations ten]. plaintiff connection for consideration in again see Here we how case disability re- possible with Civil Service being prejudged. is was This shown tirement. by emphasized and Dr. Tish’s handwrit- exam, Although he did “Neuropsychiatric Dr. Tish that stated ten statement psy- competent immediately print- him “a authorized” have after “Competent or- question time he chiatric examination” at ed to handle funds plaintiff guardian necessary?” dered an examination or is a When 10), space you (finding on the he wrote in a that consider this follows the other printed form, “Disabil- above, on the form next to words statements as stated Evidence,” by “application Medical Indicated [for ities retirement against reaction, by “Schizophrenic Dept, Para- filed wishes was] words empha- employee” type.” and statement was “Disabilities Indicated noid This by Schizophrenic Tish also Medical that Dr. Evidence: sized fact action, type,” apparent typed heading it on the form Paranoid is under la- suggestions being effect, that, totally were beled Conclusion: “Patient is examining the V. ve- made to the doctors at disabled. Disabilities are not due to alcoholism, expected disease, on their re- A. as to what was nereal vicious hab- ports, [Emphasis supplied.] the handwritten its.” all as shown No one entry printed typed typed form. on the knows who these words on the examining they stipulated been form. It doctors would have were put if could not under- on the form blind indeed Dr. Masten or stipulation stand from all of Dr. Overholt. There these instructions reports role, any, ex- kind of adverse evidence as to if were what other pected personnel from them. doctors or nurses or other who played form handled this But there more. is more—much Just reference to these unauthorized words. above the initials of Dr. Tish at the bot- We know that Form 3178 was sent following 3135, appears tom of Form Hospital by the V.A. Dr. Tish at the additional instructions: same time he sent Form 3135. your findings, diagno- Please plurality opinion approves sis, accompany- on the conclusion holding commissioner’s “the state- ing report form, conclude medical obviously arbitrary ment an your report by stating examination statement,” but adds words “if it person whether the above OR IS IS merely was not a clerical error.” This totally NOT disabled for useful suggests that it inwas fact a clerical er- position service in the above efficient agree. ror. I cannot has all of noted, and whether or not the disabili- wrongful earmarks of an intentional act. disease, ties found are due venereal course, wrongdoing Of for an ulterior alcoholism, any vicious habits. purpose lightly should not be inferred. Your reasons “to- conclusion It should never be assumed when it tal” fully should be stated. negligence, inadvertence, due to or error. [Emphasis supplied.] But, here, wrongful where act really These were instructions those positive was a one that affirmative purpose which covered the exami- purpose could have had no other than nation, namely, medically to find out harming on the one totally whether or not dis- only case, issue in the we cannot abled for useful and efficient service lightly pass being it off as an error. position, and, so, why the reasons Furthermore, there was no evidence totally she was disabled. When this whatsoever that it an error. due form with all these and in- notations hand, strongly On the other facts Hospital, structions reached V.A. dicate could not have been er- Masten, who was an M.D. but not a instance, ror. For Form 3135 instructed psychiatrist, gave general examining doctor to not state medical examination and made his re- whether the or is port printed of same to Dr. Tish on a disabled, but also “whether or not the (CSC 3178). form Form He made his disabilities found are due venereal entries on the form in his own hand- disease, alcoholism or vicious hab- writing, signed it and mailed to Dr. its.” The author of the unauthorized say Tish. anything He did not on the disability carefully “conclusion” followed concerning form whether was these and wrote on the re- instructions or was not port disabled. He very language showed the of the instruc- that However, she had “halitosis.” tions the words “disabilities not due when Dr. Tish examined Form disease, 3178 sent to venereal alcoholism or vicious by showing to him Dr. Masten the re- pointedly habits.” All of these facts of his plaintiff, sults examination of the perpetrator dicate that the of this arbi- following the trary carefully words were found to act the read instructions intentionally, says deliberately, pur- plurality “despite Nevertheless the * * * by falsifying may the posely complied fact that with them the directions indicating report. no be read as the This was clerical error. conclusion the man, However, part reports he was a the our hatchet whomever material the examining been, doctors, for did not state reasons is clear that the have * * * disability” major played re- conclusion the conclusion as role “total quired by No plaintiff.” the doubt he con- in the form. determination to retire “gilding lily” (Finding 25.) [Emphasis supplied.] the cluded that it would I conjure up too much him to reasons am at a loss to know what makes clear, except disability possible did for a not exist. total construction many years ago: aptly self-serving testimony the was stated of Dr. As Tish given was his determination made after Some circumstantial evidence he discovered that he was con- after very you strong find as when a trout by anonymous fronted conclusion. Henry Thoreau, the milk. D. Jour- nal, testimony Let 1850. us November look at the on this point. pointed out that Form should be following By instructions Mr. the has Twine: defend- [Counsel examining Hos- doctors at V.A. ant] pital : Q. Doctor, directing your attention 1-B, Exhibit Commissioner’s please full The examiner will make appears thereon the con- disability report complaint or on each totally patient clusion that alleged or found on examina- Did disabled. that have ef- tion. total If for useful your fect on determination as to please established, service efficient patient, whether em- began. show when total ployee, totally was disabled ? See also instructions on Form 3135. [Emphasis supplied.] A. None I whatsoever. As said at beginning, not bound we are on This is in to the instructions addition by any opinions or conclusions Form We see that on both forms 3135. by any drawn examiner. We instructed to make doctors were make our conclu- own report full as to whether sions and make decision on a Disability was was was not disabled. 219-20.] case. [Tr. the ultimate issue involved. Its determi- purpose nation examina- was the given by testimony I feel that Dr. tion. “Patient is total- When words actually Tish that he was influ- shows ly appeared disabled” doctor’s says enced he the conclusion. While port, covered heart case. the conclusion no effect what- nothing There else to be resolved. was determination, says soever he his also he is not conclusions bound shows that Dr. Tish as- opinions If of the examiners. response sumed the conclusion was truly considered, conclusion was specific directions, and he also that find it hard to that Dr. Tish believe did not whether Dr. Masten was know would have stated that bound psychiatrist time he reached his summarize, To conclusion. decision that disa- think that the determination of Dr. Tish 24.) (Finding Dr. tes- bled. Tish also arbitrary was influenced state- assume it to be a tified that he did not report ment found on Dr. Masten’s be- The record dem- conclusion. circumstances, following cause of opinion it was onstrates Tish’s among others: Mas- recorded on Dr. the conclusion deci- 1. felt the ten’s not material Tish statement was 24.) (Finding response specific plaintiff. directions. to his retire sion 433, 579, 2 L.Ed.2d S.Ct. [78 U.S. whether know did not 2. He States, (1958); United Hamlin v. psychiatrist. 503] awas Masten 251-67, decided 941] No. F.2d [391 an it was did not know 3. He States, day; su- v. United this Motto at statement unauthorized pra, F.2d note decision. made his time he supra, Egan 523; v. United thought conclusion 4. He 23-25, F.Supp. at at Ct.Cl. put Mas- on the form 390-391. report. part a of his ten and was aptly v. so in As was stated Greene II (1875): Harris, 5,17 11 R.I. “Going Replete Errors A With Decision part of a Human nature constitutes Administrative To Heart The every more case. evidence We Determination” Cannot Stand easily person that a done believe has expected the CSC we under that when what should have record shows circumstances; did require plaintiff, a retire it and we first decided to satisfy greater degree evidence sufficient evidence have before it something disability. finding person support a has done total us improba- would unnatural or form of be Additional evidence psy- ports psychiatrist ble. from both up chologist alleged made to have sug- Here, more human nature than proof. deficit gests that the conclusion was considered reaching Dr. Tish in decision. psy- dispose can sure, certainty, To is not be inference chologist, quantum of as an aid to the enough plain circum- in these proof support the determina- needed to justify finding As stances fact. tion, quickly. Dr. Tish testified rather plurality concedes, if such statement and conclusions comments thereby CSC, accepted had been help psychologist “are influencing determi- the administrative psychiatrist individual.” who sees the nation, retire decision to testimony psycho- revealed that His my opinion, it must would not stand. nothing logical since meant conclusively presumed state- (Tr. psychologist not M.D.” “is ment deci- influenced the administrative 26.) finding sion. sur- I turn then to circumstances arbitrary Accordingly, the decision rounding examination It unfounded and cannot stand. earlier, Dr. report. As indicated many respects similar to the adminis- information Tish did not have sufficient v. trative decision in John Hankins W. prior refer- determination to make a 20-67, United Ct.Cl. No. decided ring psychi- to Denver 15, 1968, slip 5-6, op. pp. March wherein testimony was atric His examination. we said: psychiatrist that he wanted a certified resting significant- An action to examine ly improper on such materials [void (Tr. 221.) reach decision. efficiency reports], as was the Secre- examining Dr. Lewis was the Overholt case, tary’s permit- cannot this psychiatrist returned the form who is, gener- course, ted to stand. diagnosis: following Dr. Tish with the principle al de- that an administrative reaction, chronic, Schizophrenic un- one, cision, discretionary even type, partial remis- grounded differentiated in considerations which stress, precipitating account, External sion. tribunal should not take into predisposition not determined materials should Impairment, se- arbitrary examination. weigh, is vulnerable as Competent. Brucker, vere. unfounded. Cf. Harmon Q. pre-disposition de- What does from the evidence It is manifest di- Tish, examination termined at this according Dr. Overholt’s to Dr. mean? evaluation agnosis to his was immaterial Divi- the Medical because of the claim b;y IA. don’t know what he means diagnosis to behind looks sion that. report and of the substance may Q. Look at the Overholt diagno- disagree agree with me tell you? what that means to 26.) (Finding sis made. fright- testimony particularly is This Pre-disposition, A. inter- are not we only oth- opinions ening since any- determination, ested in that way. already discarded er doctors irrelevant, far So is as psychiatrist’s If this “immaterial.” con- retirement is rejected, there opinion then is likewise cerned. otherwise, evidence, substantial is no on which an adverse decision can rest. ^[******] point Q. Now, is testimony diagnosis this from the

Dr. Tish’s made re- Overholt, you Before puzzling incredible. did conclude both lating it, that this let me reiterate that he found Mrs. McGlasson to awaiting per- report Dr. Tish was from disabled forming clerk-typ- made. services a determination ist? admitting various are After disabling schizophrenia, some kinds diag- A. I did not conclude from the response testimony not, some anything. nosis In the first questioning continues: place, is immaterial “competent” evaluating Q. does the word a claim. It does What Doctor, any you, in that not make difference what mean to port get Dr. Overholt? of label it from kind straight. is. Let’s compe- is means that she A. Coming question diag- handle, function. tent you pinning nosis that are me are interested all we That is on, I down would like standpoint to elabo- the annu- from the impor- rate because think it is ity pay her. [Tr. that we funds any tant. It does not make dif- 232.] psychiatrist ference what label a 230), admitting (Tr. previously After puts upon patient. areWe concerning that he wanted a statement only concerned whether the indi- disability, then testi- Dr. Tish total her suffering vidual is or is not fied: from a nervous disorder of such asking psychiatrist, Q. you Were degree that he or she is unable here, your make direction job. function That is whether determination as all arewe concerned with. We capable she or whether she was are not concerned the label job her to handle disabled puts that he on her. He can call clerk-typist? as a anything he wants. The la- We business. That not his A. bel is immaterial. question. him that don’t ask fact, disagree we often with 232.] [Tr. psy- the label that some of the however, put amazing me, patients. chiatrists Utterly their excerpt mis-labeled, Sometimes following the tran- so, therefore, testi- to Dr. Tish’s label is script reference not a cri- diagno- terion concerning for mony evaluation Overholt’s mental or nervous disorder. : sis Doctor, perform her duties. Dr. Tish important, clerical Q. What away explains patent a nonexistent “label” is dis- also or not whether Oyerholt they con- reached a since Dr. never of what the basis abled respect total have, clusion with disability. that correct? is is, or way that we do The A. Yes. it, way is he does alone, reading diagnosis A of the even patient. This of the observation material, if Dr. Tish did consider patient, psychiatrist interviews support to- not a determination of information gives us that he disability. pa- place, tal the first gist report. [Tr. of his in the “competent” tient and in a state is 235-37.] remission,” “partial factors com- diagnosis. adverse indications in bat following tran- from the extract story, because this not full Even is tes- script Dr. Tish’s that also illustrates “gist” report does of Dr. Overholt’s guarded positively timony dis- not sustain determination of total consistent : ability. folder, you Q. conclud- Based on this Masten, not, ed, you Dr. did report in Dr. Included Overholt’s Herring Dr. Overholt Dr. following: plaintiff, Mrs. had all seen the description precip- The itating external of the case, McGlasson, in this stress, predisposing factors ? correct adjective description of the incapacity record- estimated resultant all. No, that at I not conclude A. did examination, are ed in this for fuller Q. not You did conclude pur- psychiatric study and treatment had seen her? poses. They are not determinative compensation pension A. No. a basis agencies purposes. adjudicating Q. you conclude, from did Whom responsible for the evaluation examination, Doctor, had seen determining all evidence available plaintiff in ? this case pen- compensation entitlement say tell supplied.] A. I would that all can [Emphasis [Find- sion. Ad- ing from this is the Veterans 16.] or- ministration carried out our portion report This of the indicates individual der to examine the me that the later determination that was findings. their by open Dr. made Dr. Tish left findings they sub- These are Overholt, and future exami- me. mitted to contemplated, nations were at least Q. You made no conclusion as who Dr. Overholt. her? saw plaintiff’s objec- not feel that do A. not No. We are interested merely complaints tions are her, the indi- who saw vidual, who saw every jot “did not Commission follow long seen so as she was applicable procedures and tittle of the * * qualified psychiatrist. * [Tr. showing the al- 228-29.] leged departures im- were substantial portant.” su- Gaines United contradicted Tish has pra. times, has himself numerous also discarded, irrelevant, portion Furthermore, of the that her I do not believe objections fly understand. “or disre- can even face of record, appears gard principle from the cannot For all that that a court judgment could on medical evi- could have meant substitute its heavy Com- involvement in the for the determination case. This dence made more determina- obvious The word the fact that mission.” Ibid. plurality testify throughout injected Mercer did not at the trial. tion is meanings of opinion. usual “One It is a universal rule of evidence in * * * to come the word ‘determine’ is: the trial of a case that a doctor who has * * Milling decision; Gooch to a patient never seen nor examined a In- & Elevator v. Commissioner Co. give professional opinion allowed to (8th Revenue, F.2d ternal patient to whether the is or is not disa- grounds, Cir.1943), on other reversed bled. But here we have the extraordi- 184, 88 L.Ed. 139. U.S. S.Ct. nary allowing situation of Dr. Tish and F.2d United See Shields v. Mercer, Dr. who ex- had never seen or Cir.1967). said (6th We have give plaintiff, opin- amined the their must decision the administrative “totally ion that she was be- disabled “conscientiously made.” have been of a error cause nervous disorder.” The Cooper United compounded they is give when are allowed (1967). Certainly, no can be 288 disagreement opinion their on mental not “con- decision is that a disorder, because of a nervous when scientiously rele- all made” where psychiatrists are and had never “imma- vant medical is labeled doubly plaintiff. seen compounded The error is In the maker. terial” the decision al- when these doctors alleged case, the circumstances this lowed, circumstances, under these plaintiff expert opinion of Dr. Tish make the final decision on the ultimate nothing totally more was disabled is case, alleged namely, issue evening wearing guess ordinary than an Furthermore, plaintiff. psychiatrist, clothes. Dr. Tish is this decision was made without plaintiff, and never examined the report disability by any medical doc- only No mail. her was contact with her, tor who had examined and on the competent except psychiatrist Dr. Over- hand, other in the face of Dr. Masten’s plaintiff he did and holt examined the report that she and had “halitosis” disabled, found find her to be but “com- Overholt’s that she was doctor, psychi- competent. No to be petent.” atrist, psychologist examined who plaintiff plaintiff appealed that she The found or stated the decision ever doing and it her work—not was submitted to Dr. Tish was disabled slightest degree. There consideration. He reviewed the file and even up simply he had warranted came with the same decision no evidence that aptly supported plaintiff of made decision before. As so administrative “* * * it, phrased disability. this not a total was all, simply view at but Dr. Tish review- Notwithstanding any medi- the lack of ing procedure Dr. Tish.” While this disability, cal evidence of have been in accordance Mercer, Tish and a Dr. neither of whom regulations, it me have been occurs to psychiatrist, decision was a rendered a improper unjust under the circum- “totally was disabled stances. useful and efficient service Ap- The final the Board of review position occupied by aof her” because peals appears Review * * * schizophren- “nervous disorder nothing perfunctory rub- more than the Dis- ia.” Dr. Tish Chief ber-stamping decision of Dr. Tish’s ability Dr. Mer- Retirement Section made below. cer him. It can be as- worked under practical that Dr. conclude that there was substan- sumed as a matter likely position support tial evidence a determination Mercer would not take disabled, of his from that the chief different arbitrary capri- section, especially Tish’s the decision of Dr. view following perti- phrase ex- ceived. The unconscionable abuse and an cious nent: ecutive discretion. however, sus-

If the Commission is case, and, accordingly tained this Ill cases, similarly in then behaves future mystery. its conduct indeed be will Conclusion * * * Its so-called [“determina- hearing for a asked acceptable, no will then tions”] case, by Dr. this was refused event, matter how contrived. In that Tish, purported to act for the Com- who would be desirable abandon (Finding 5.) appears that mission. * * * word [“determination”]— hear- to a was not entitled misleadingly connotes since that word ing right the rules as a matter of under judgment— moderately some rational regulations then of the CSC term, and to substitute some neutral hearing, However, the force. denial associations, misleading devoid “goings the other when combined with such as “woosh-woosh.” case, emphasizes the error on” in this pertinent this: doctrine would then be might injustice and have been which * * * ceremo- “When has [CSC] given plaintiff avoided had been woosh-wooshed, nially judicial scruti- right present her of the case side Colony ny is barred.” Old hearing impartial fair at a and Y., R. Bondholders v. N. Co., N. H. & H. unprejudiced an unbiased and commis- Cir.1947) (2d 161 F.2d 450 Any this sion. citizen is entitled to cert, (Frank, dissenting opinion), J. granted less. much and should denied, 331 67 91 U.S. S.Ct. L.Ed. 1866. where in this case a situation We have of Disability Section Retirement my opinion, In the decision of accuser, prosecutor, the was plaintiff CSC that was disabled and, perhaps, execu- jury, judge and performing posi- from the duties of her a have did tioner. arbitrary capricious tion was and and even did not ghost of a chance. She supported by was not evi- substantial herself opportunity to defend have an dence and was an unconscionable abuse the case. She present her side to disposed of executive discretion. We held completely utterly under and court can set aside Commis- guise adminis- of a CSC name and (CSC) sion’s determination or refuse proceeding proceeding if that trative recognize has it as valid where there into legitimacy correctness and breathed departure im- been a substantial portant procedural aofme It reminds taken. the action rights, a miscon- in another very apt made statement governing legislation, struction of the * * * all case, “ “The most odious ‘going some like error heart of to the jus- mask are those which ” [decisions] administrative determination.’ States, 336 United Krulewitch tice.” States, supra. See Gaines v. United 716, 725, L.Ed. 440, 458, 69 S.Ct. U.S. principles apply here, think these Jackson, opinion (concurring (1949) required abundantly error is jus- example of J.). If this case is shown. proceeding of administrative in an tice needs appear response Judge CSC, would Nichols’ concur- revamped.1 em- ring opinion, readily No apparent completely it is to be alleged sub- government should much of it is based on facts that ployee plaintiff are, outside the evidence jected treatment prior July 1, prepared F.Reg. opinion five 1968. See 7715- 1. This CS,C (May 25, 1968). new dis of its promulgation regulations be effec- ability retirement upon instances, partial speculation, list relied either offered and ex- some commissioner, cluded or else was follows: offered. even Force to 1. A letter the Air sent alleged plaintiff’s hear- requesting Most of these facts are involun- the CSC listing say. they retirement, tary en- Yet constitute the foundation which while attached, concurring opinion. require for the To which are not now closures presumed suppositions “an account to overcome included to have allegations these, job.” (Not and heavy, unfair, like would be on the behavior improper evidence.) burden deed for her to bear. I do not believe requested permis- 2. That empowered indulge that we are sion to Dr. J. P. Hilton consult a speculations. We do not make the diagnosis furnished Denver who schizophrenic facts, but take them find them. as we reaction, type, paranoid in reminding As John Adams said when in a letter marked “Personal and Confi- jury responsibility of their to the facts: dential” of the Finance to Dr. Albers evidence.) (Not things; Facts are stubborn Center. wishes, whatever be our our incli- acted on 3. That the CSC would have nations, pas- or the dictates of our alleged Hilton “and alone sions, they cannot the state alter sought ap- another after it became * * facts evidence *. William- parent coun- had retained son, Adams, John Counsellor Cour- sel, litigation going and there was to be 148,150 (1968). age, 54 A.B.A.J. probability in all unless backed (Not specula- down.” concurring opinion says that Dr. tion.) testimony “got fantasy,” Tish’s off into points “inability and anything out its to believe diagnosis 4. The use of the Hilton * * Yet, Dr. Tish said might charge exposed him to the opinion, which discredits Dr. Tish Aesculapian that he had violated his witness, would, effect, as a in shelter causing professional oath embarrass- alleged testimony unbelievable under the (Speculation.) ment. professional effect, loyalty. shield of In 5. The ob- statement it seems concurring opinion agrees the me with mysterious the vious that conclusion is testimony that Dr. Tish’s should not be might clerical error “such in as occur considered in this reasons case. For any large office where statements have follow, easily plaintiff would typed repetitively to be on numerous prevail if the evidence of Dr. Tish ex- is (Speculation.) documents.” cluded. plaintiff 6. The sued in state Disability Two medical in the officers courts all Denver doctors who had de- Retirement Section must concur in ciding any retirement, connection her with involuntary a case of retirement cluding a Dr. Hilton and Dr. Overholt. separately after each doctor reviews the (Not evidence.) record. Dr. Tish testified that he and a alleged 7. The ethics of doctors not Dr. Mercer were the two doctors who give testimony, although to ful, court truth- approved appli- made the review and prosecution that will assist the plaintiff being cation to ly total- retire against (Not law suit another doctor. testify disabled. Mercer did not Dr. speculation.) in evidence and So, you at the trial. take Dr. Tish 8. That Dr. Tish testified in such suggested, out of the the retire- case as protect manner as to other doctors plaintiff illegal, you ment of is because (Not whom in evi- had sued. any do not have doc- evidence that two speculation.) dence and required tors reviewed the case as Indeed, concurring opinion fact, you admits the rules. In do not have evi- alleged single that much of the above evidence dence that in the doctor section case, supra, case, Dr. Mercer Hankins documents because reviewed they too, any or in Otherwise, other case occur. of the case since where out would be only proof uphold Dr. the tradi- he did was what we do not of what justice to, indeed Mercer did this court and does as Dr. tion of Tish testified lady.” appear. become “blind appealed, Furthermore, when Finally, briefly must comment appeal Tish to Dr. was submitted inapplicability the Rating of the V.A. General “pursuant further review case, su- Formula in the Davis procedure.” Tish “reviewed usual concurring pra, opin- referred to in the change his refused to Dr. Tish” and opinion ion. The fails disclose prior out of the If Dr. Tish is decision. ratings applies in a are code case, procedure is violated and only military personnel no and has plaintiff’s proper be no review bearing personnel on civilian cases. appeal. reg- rating, code, There is no standard or Tish, no there would be Without Dr. governing ulation ability dis- whatever mental diagno- interpretation of Dr. Overholt’s involving personnel civilian cases plaintiff, definition of the sis of meaning nor jurisdiction within the of the CSC. Ci- “competent” of the word employes are do vilian either able to diagnosis. to define would be free We totally their work or else disa- meaning popular sense everything doing bled from nothing. so. distinguished (as “able” sliding There scale disabled), the cor- I indicated is Furthermore, between status. if the meaning rect of the word. considered, any analogy code could be incomplete mentioning government case even without all fac- had no diagnosis. Only participating, tors pairment” im- but when “severe Tish you out, government take him is left is mentioned in concur- ring opinion, destitute, de- all the vital while as made included, among things, against plaintiff. partial other “in cisions in case opinion concurring remission.” If the diagno- respects, some Overholt discussing military rating insists on plaintiff, sis is certain- favorable formula, it should mention that remis- indirectly, ly directly, does not indicate sion factors can affect the individual’s innuendo that disability rating significantly. For any event, con- disabled. it was not stance, code, in the full remission on a being sidered material the case. percent percent scale of 100 dis- means ability. remission, So, being Partial as in our Tish of the with Dr. out case, case, percent could mean and with Dr. Overholt’s one percent disability, showing nothing or ten percent other to indicate disability. Any- totally disabled, less than total Dr. Masten was and with thing wrong finding only thing than less total under the with system halitosis, retain I reach the entitles job. inescapable There no she evidence that conclusion that sup- was disabled. not port no substantial evidence to CSC, the decision of the evi- Accordingly, judgment I would enter dence at all. prayed pe- for the for in her court, my view that tition, and would remand the case to the reputation has, not let the un- should commissioner to determine the amount go savory here activities which occurred recovery 47(c) (2). under Rule quick unnoticed. We should be as strike down unauthorized and arbi- DURFEE, Judge, joins forego- trary we entries on the forms here as ing dissenting forgeries opinion. were to condemn

Case Details

Case Name: Lula A. McGlasson v. The United States

Court Name: United States Court of Claims

Date Published: Jun 14, 1968

Citation: 397 F.2d 303

Docket Number: 186-61

Court Abbreviation: Ct. Cl.