Opinion filed by TAMM, Circuit Judge.
Concurring opinion filed by ROBB, Circuit Judge.
Dissenting opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
TAMM, Circuit Judge:
We are summoned in this case to review the award of summary judgment against a federal civil-service employee dismissed from her job on grounds of mental disability.
I
Our pseudonymous appellant formerly was employed as a clerk-typist, GS-3, in the Office of Research and Technical Services (ORTS), Bureau of Engraving and Printing (Bureau or agency), Department of the Treasury. Hired by the Bureau in June of 1971, appellant came to her new job with two years of prior federal employment and thus enjoyed civil-service protection as a non-probationary federal employee. For her first few months with the Bureau, appellant performed her duties without apparent difficulty. In October 1971, for instance,
When these problems continued with only occasional surcease, the agency, in March 1973, directed appellant to undergo a fitness-for-duty examination
The Bureau finally notified appellant that it was seeking her removal and placing her in leave-without-pay status pending conclusion of separation proceedings within the agency. Her removal notice reiterated the allegations set forth in the earlier fitness-for-duty examination directive, see note 4 supra, and added further:
Record 94.
Appellant responded to this notice orally and in writing. Her written communication transmitted a mental status and employment capacities report, prepared at appellant's request by another Public Health Service psychiatrist, Dr. F. Wm. Bernet, which prognosticated that "with continued therapy and medication [appellant] will be employable" and recommended that she be permitted to return to her job at the Bureau. Id. 84, 86. Soon after receiving this report, the Bureau Head of the Employee Relations Branch met with Dr. Scorzelli and his nursing assistant and agreed to proceed with the removal proceedings since, notwithstanding Dr. Bernet's favorable conclusion,
Post-termination administrative appeal proceedings then commenced at her behest. See 5 C.F.R. Part 771 (1974). An adjudicatory hearing was held at the agency in September before an independent Appeals Examiner, during which both parties submitted evidence and introduced the testimony of various witnesses, Dr. Valle, the practicing psychiatrist, among them. The examiner subsequently recommended that the removal action be upheld as warranted by the evidence and in compliance with applicable
Appellant proceeded then to the next stage of her available administrative remedies, see id. Part 772, by appealing the agency's decision to the Civil Service Commission's (Commission) Appeals Examining Office (AEO), which ultimately sustained the decision as reasonable and procedurally sound. The AEO chose not to confine its review to the existing record, however, as counsel for appellant apparently had anticipated. Compare Record 26 with id. 120. Instead, it sought and received the additional medical opinion of a Dr. Eck, Chief of the Bureau of Retirement, Insurance and Occupational Health's Medical Division, on the question whether "the observed deficiencies in [appellant's] performance, outlined above, are attributable to her diagnosed disabling condition; and whether this condition would make the employee a hazard to herself or others." Id. 25. Dr. Eck's medical statement, which was later incorporated into the AEO's affirmance, opined only that
Id. 23.
A final administrative appeal was then taken to the Commission's Appeals Review Board (ARB)
With her administrative remedies finally exhausted, see 5 C.F.R. § 772.307(c) (1974), appellant brought suit in the district court seeking the usual declaratory, injunctive, and compensatory relief. This proved unavailing, however, for the trial judge granted the Government's motion for summary judgment upon consideration of the pleadings, cross-motions for summary judgment, and the administrative record. Undeterred, appellant has followed the usual course in availing herself of a duplicative appeal to this court,
In passing upon appellant's claims, we must remain cognizant of the confines of our review. While the transition from unreviewability
Our review, as that of the district court before us, is limited to scrutinizing the administrative record accreted as the adverse action proceeds along its tortuous course up through the various levels of appeal. No de novo hearing is held,
III
A
Appellant first argues that the Bureau failed to establish any rational connection between the medical conclusions of Dr. Valle and the observed deficiencies asserted as grounds justifying appellant's removal. Appellant's Brief at 23-26. The AEO and ARB both concluded that the requisite causal link had been satisfactorily established, and we agree.
In law as well as logic, there must be a clear and direct relationship demonstrated between the articulated grounds for an adverse personnel action and either the employee's ability to accomplish his or her duties satisfactorily or some other legitimate governmental interest promoting the "efficiency of the service."
This so-called nexus requirement is articulated with varying degrees of particularity throughout the laws, regulations, and policies governing the civil service system.
752 FPM 1-3 (Apr. 1972). Finally, and most precisely to the point of our present case, the Manual clarifies that a mental or physical disability indeed may warrant removal under the procedures established by chapter 752, but specifically requires that in undertaking such medical disability proceedings an agency must link the disability to certain specified employment concerns:
752-1 FPM S1-3a(5)(f) (Feb. 1972) (emphasis added).
With the exception of the unparticularized assertion of Dr. Eck in his medical opinion to the AEO, there was not the slightest suggestion that appellant's incapacity posed a "high probability of hazard . . . to [herself] or others because of the kind of work [she] does." The Government does not argue to the contrary— as it reasonably could not on the basis of the present record— but contends rather than substantial evidence apart from Dr. Eck's opinion clearly established the necessary causal link between the medical conclusion reached in the fitness-for-duty examination and appellant's disruptive behavior and unsatisfactory job performance. Thus, it characterizes Dr. Eck's opinion as "merely cumulative, rather than operative."
It is true, as government counsel conceded at oral argument, that the administrative record before us contains no precise and explicit nexus statement by the agency. Were we to require an employing agency to exclaim—"ecce nexus"—whenever it sought to separate an employee on disability grounds, we perhaps might have reached a different result in this case. We refrain from imposing such a wooden, formalistic requirement on the agency, however, believing that it is enough to satisfy the Manual's nexus requirement if the agency has furnished a rational basis in the evidence for its conclusion that a diagnosed medical problem has adversely affected the employee's job-related behavior or performance. From our reading of the administrative record in the instant case, we think it rather obvious that appellant's diagnosed medical problems at times did substantially and adversely affect her work performance and employment behavior. At other times, it is true, her psychiatric problems—to the extent they were of a continuing nature—did not manifest themselves in any negative, occupationally-related manner. Still, for what we consider a rather generous period of time, the Bureau did subordinate its legitimate interests in the efficient performance of its tasks
We are not much impressed with counsel for appellant's imaginative attempt to limit the signification of Dr. Valle's psychiatric conclusion to nothing more than an immaterial datum of evidence that appellant was mentally "not fit for duty" only on the particular day of her psychiatric examination, so that the diagnosis could not theoretically be related to instances of "observed deficiencies" on any previous day.
Confronted with another case, we might well require more than Dr. Valle's terse, unelaborated medical conclusion that appellant was "not fit for duty at this time." His examination, such as it may have been, however, is far from the only evidence of record underscoring appellant's mental disability and its adverse effect on her value as a federal employee. Our careful review of the record in this case fortifies us in our conclusion that the agency's decision, which the Commission subsequently approved was not so lacking in evidentiary support as to be condemned and set aside as arbitrary. See Dabney v. Freeman, 123 U.S.App.D.C. 166, 170, 358 F.2d 533, 537 (1965). See also Mendelson v. Macy, 123 U.S.App.D.C. 43, 47, 356 F.2d 796, 800 (1966).
For instance, we have before us, as did prior reviewing tribunals, uncontested evidence that during appellant's two years with the Bureau she was absent from work due to psychiatric illness or its treatment for periods aggregating more than 92 days on 72 occasions.
The record also reveals that the Bureau expended considerable time and expense in attempting to accommodate her disability. During her tenure at the agency, for instance, nurses were summoned to care for her five times, she was brought to the Mental Health Clinic by co-workers four times, taken by Bureau car to St. Elizabeth's Hospital 44 times, taken to George Washington Hospital by ambulance once, taken to the hospital by Bureau car three times, and sent home by Bureau car six times. Id. 59-60. Finally, we note that a doctor at St. Elizabeth's had diagnosed appellant's condition on January 13, 1972, as acute schizophrenia episode, and that the same diagnosis was made almost a year later, during her hospitalization from December 7, 1972, to January 2, 1973, after appellant apparently had stopped taking her prescribed medication. Id. 65.
In sum, then, we conclude that the findings of mental disability and the alleged instances of disruptive behavior are supported by sufficient evidence such that we may discern a rational basis for the Commission's holding that the agency had adequately established that the observed deficiencies in appellant's behavior at work stemmed from that diagnosed disability. As the AEO explained, id. 21, the agency's letter directing appellant to undergo the fitness-for-duty examination set forth the specific instances of unsatisfactory behavior, see note 4 supra, upon which the agency
B
Appellant also argues quite forcefully that the communication between the AEO and Dr. Eck, characterized as an ex parte contact, amounted to a prejudicial violation of administrative due process. See Appellant's Brief at 26-30; Appellant's Reply Brief at 1-4. We agree, but only in part.
At the outset, it will be worthwhile to clarify what we consider not to be involved in this particular case. For one, we do not confront here, as the Court of Claims did in Camero v. United States, 375 F.2d 777, 779-81, 179 Ct.Cl. 520 (1967) and Jarett v. United States, 451 F.2d 623, 628-29, 195 Ct.Cl. 320 (1971) (where decisions adverse to government employees were reversed), ex parte communications of the employing agency concerning the merits of the case addressed to those responsible for decision in proceedings required by regulations to be adversarial evidentiary hearings. See, e. g., Gayer v. Schlesinger, supra, 490 F.2d at 747; Brown v. United States, 377 F.Supp. 530, 539 (N.D.Tex.1974) (procedural due process violated where hearing examiner on several occasions discussed case with "prosecutor" for agency prior to agency hearing). Nor is ours a case where the relevant factors and contentions in a controversy were not known to all of the parties. Cf. Moore-McCormack Lines, Inc. v. United States, 413 F.2d 568, 188 Ct.Cl. 644 (1969). Moreover, Dr. Eck was not allied with an adversary, and, absent some reason to believe otherwise, we should presume that he had a neutral stake in the outcome of the appeal.
Were it otherwise, this might be a different case, for, as a general rule, ex parte communications by an adversary party to a decision-maker in an adjudicatory proceeding are prohibited as fundamentally at variance with our conceptions of due process. See Sangamon Valley Television Corp. v. United States, 106 U.S.App.D.C. 30, 269 F.2d 221 (1959); Administrative Procedure Act § 5(c), 5 U.S.C. § 554(d) (1970). In short, whatever else it may have been, this alleged ex parte communication was not an unsolicited, self-serving contact initiated by an interested party to add to its factual evidence or to proffer further justification for its actions after the record should have been closed.
On the other hand, however, the AEO's solicitation of an additional medical opinion is hardly analogous to "an assembling of the files and a placing of the case in proper posture for the hearing" which the Court of Claims found acceptable in Korman v. United States, 462 F.2d 1382, 1388, 199 Ct.Cl. 78 (1972), or, as the Government now urges, to the appropriate use of assistants underwritten by the Supreme Court in Morgan v. United States, 298 U.S. 468, 478-82, 56 S.Ct. 906, 80 L.Ed. 1288 (1936), and by this court in Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 407, 379 F.2d 453, 461 (1967). What occurred in this case must be viewed as essentially the introduction of further medical opinion evidence into the record, and not simply the obtaining of assistance in evaluating existing record evidence.
The introduction of such evidence into the record upon which the appellate decisions would be based without an opportunity for the parties to comment thereon appears to conflict with certain procedural
5 C.F.R. § 772.304(c) (1974) (emphasis added), presently amended and codified at id. § 772.305(b) (1977). See also id. § 772.308 (1977) (a new provision, not applicable herein, concerning the closing of the record). Furthermore, section 7701 of title 5
It is thus our considered opinion that, even though Dr. Eck's opinion was merely an additional medical evaluation of record evidence upon which appellant had already had a full and fair opportunity to comment, it was also considerably more—being evidence of the type that went to the essence of the validity of the agency's decision in this case—and therefore appellant should have been afforded an opportunity to review and comment upon it as provided for by Commission regulation.
Although reception and consideration of this undisclosed additional medical opinion by the AEO constituted procedural error, we hold that such error was not prejudicial and does not warrant reversal of the summary judgment, since in effect the evidence thusly generated was merely cumulative. See Dozier v. United States, 473 F.2d 866, 868 (5th Cir. 1973); Administrative Procedure Act § 10(e), 5 U.S.C. § 706 (1970) (rule of prejudicial error).
The AEO expressly stated in its decision that it found the agency had established the required nexus "through the two letters" (fitness-for-duty examination and proposed adverse action letters). It then explained:
Record 21. It is quite clear from the first statement, the substance of which we have in effect found to be reasonable, that the AEO would have concluded that the necessary link had been established independent of this supplemental evidence. Where an alleged error in all likelihood would not have affected the result, its occurrence can not have been prejudicial. See Chrysler Corp. v. FTC, No. 76-1586, 182 U.S.App.D.C. 359 at 364-365, 561 F.2d 357, at 362-363 (1977). See also Smith v. Dulles, 99 U.S.App.D.C. 6, 9, 236 F.2d 739, 742, cert. denied, 352 U.S. 955, 77 S.Ct. 329, 1 L.Ed.2d 244 (1956). We are also convinced that the impartiality of the AEO, and, more importantly, of the ARB which subsequently took administrative notice of the additional medical opinion, was not impaired and that, expressly proceeding out of an abundance of caution rather than indecision, the fundamental fairness of appellant's appeal to the Commission was not vitiated by the AEO's action. Cf. United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752 (1977) ("due process . . . must consider the reasons for the [alleged error] as well as the prejudice to the [party alleging it]").
Despite our holding that a reversal is not compelled on this ground, we add a few words of caution. An employee must be afforded as full and fair an opportunity to make an informed and effective defense as the applicable law permits, not only before the agency, but also before the Commission on appeal. If the right of appeal to the Commission and the procedural safeguards created to assure its impartiality and accuracy of decision are to be something more than a costly facade—a Potemkin village— thrown up to conceal a foregone conclusion, the aggrieved party especially must be afforded a chance to review and comment upon the evidence that is to be considered by those responsible for deciding the appeal. We, of course, do not intend to hamper the Commission with the fear that the validity of its decisions will be jeopardized whenever it attempts better to inform its deliberative process and to assure a correct result. When, however, for whatever reason, it seeks to obtain further evidence against which to adjudge the validity of the agency's adverse personnel decision, both the Commission's own regulations and fairness to the individual employee require that such evidence be placed in the record for all the parties to see, and, should they choose, make their views known.
C
We find appellant's final contention more compelling than her others. In this, she
The source of this particular claim is to be found in certain provisions of the Federal Personnel Manual—the Civil Service Commission's official vehicle for issuing its personnel regulations, guidelines, and policies to other federal agencies— which seek to guide employing agencies in striking a reasonable balance between the legislative and executive branch policies of utilizing the medically handicapped,
339 FPM 1-3(b)(1) (Mar. 1972) (emphasis added).
From our review of the administrative record, we are left with the distinct impression that in fact no real effort was ever made to reassign appellant to other duties in which she might have performed more satisfactorily. For instance, the Chief of ORTS, where appellant worked, testified that he arranged to have her detailed on a temporary basis to the Bureau's Technical Services Division "where there was need of a clerk-typist for a period of one week." Tr. 185. When asked why appellant had been returned after only one week, this witness offered the following testimony which underscores the rather feckless efforts to reassign appellant:
Tr. 199-201.
The head of another Bureau office for whom appellant had done considerable work also testified that he had informally suggested that she be reassigned to him in light of the apparent problems in her present job. Tr. 249. He considered their general relations to be excellent and her work to be most satisfactory at times, though not so at other times. Id. 251-53. Notwithstanding the need for another clerk-typist in this office, appellant was not reassigned there ostensibly because the Assistant Chief of ORTS believed that there simply was not enough room to accommodate the necessary equipment. Id. 236. When asked whether he ever approached anyone about the possibility of a transfer, this latter official further testified that he had brought the matter up with the ORTS Chief who merely responded "[t]hat he didn't see where it would do any good, because nobody else would be willing to accept her." Id. 233. Without belaboring the point further, we believe it rather obvious from the foregoing that, while some consideration was given, the agency made no real effort to reassign appellant to other duties.
Without specifying exactly what they were, the Government asserts to the contrary that in fact "[e]fforts were made to locate other, suitable positions, and she was given a temporary detail." Government's Brief at 12. In fact, it never presses the point with any zest, preferring instead to shift emphasis from the extent of efforts expended to the feasibility of reassignment. In this regard, the Government refers us to the AEO's conclusion which, it correctly maintains, we should not ignore by merely substituting our own judgment.
Record 20 (emphasis added); Government's Brief at 12-13. This reasoning, however, plays fast and loose with the facts, for in actuality, apart from Dr. Valle's terse, hand-scrawled "not fit for duty at this time", there was no medically-based decision whatsoever that "removal rather than reassignment was the appropriate course of action for all concerned . . .," or that "[a] liberal grant of leave without pay" would have been futile.
Whether what appears to have been inadequate affirmative reassignment effort or consideration of the liberal leave-without-pay option entitles appellant to the relief she seeks is quite a different matter, however. It is, of course, well-established that an agency must abide by its own regulations in effecting the removal of one of its employees. See Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Mazaleski v. Treusdell, No. 75-1817, 183 U.S.App.D.C. 182, 562 F.2d 701 (1977). If the Manual provision to which appellant now refers us is indeed a binding regulation and if the agency has failed to comply with its mandate to the prejudice of its employee, then an essential predicate to a valid removal will have been wanting. We must thus address the question whether the above-quoted provision in the Manual is a regulation or something less which does not give employees enforceable substantive rights.
We begin our analysis with the rather obvious proposition that not "every piece of paper emanating from a Department or Independent Agency is a regulation."
If on remand it should be found that the Manual provision, 339 FPM 1-3(b), is mandatory rather than precatory, a further remand to the Commission will be necessary in order to adduce sufficiently complete and detailed medical evidence to permit both it and the reviewing courts to determine whether the agency abused its discretion in not reassigning appellant or placing her on extended leave-without-pay in light of the nature and chronicity of the disability as well as the availability of other suitable positions.
752-1 FPM S1-3(a)(5)(b) (Feb. 1972). This so-called fitness-for-duty examination, as we have seen, is required whenever an agency "has a question about the physical or mental capacity of an employee" and seeks to justify an adverse personnel action upon such capacity. Id. S1-3(a)(5)(c). However, it is not administered solely as a necessary predicate to removal, for as the Manual itself emphasizes: "[a] fitness-for-duty medical examination will be valuable in counseling the employee and determining the feasibility of alternative actions available to the agency." 339 FPM 1-3(c) (Mar. 1972).
Although we have determined that the fitness-for-duty examination report sufficed to establish a rational basis for the Bureau's adverse action, at least when viewed in relation to the other medically-related evidence, we do not consider the simple statement, "Schizophrenia, chronic-undifferentiated, compensated. `Not fit for duty at this time'," to be an adequate basis for an agency to assess either the feasibility of immediate reassignment or the likely value of placing the employee on leave-without-pay status. This "diagnostic impression" is little more than an ultimate conclusion unsupported by reasons or any detailed explanation that might give some substance to it.
Our holding here is not a quixotic one, for both Dr. Bernet's prognosis, see Record 84-88, and Dr. Valle's testimony at the hearing, Tr. 52, as well as appellant's behavior after the fitness-for-duty examination, are good indications that, at the least, a liberal extension of leave-without-pay, coupled with continued medical treatment, may indeed have been both feasible and fruitful.
IV
For the reasons set forth above, the judgment of the district court appealed herein is vacated and the case remanded to it for determination whether Federal Personnel Manual Provision 339 FPM 1-3(b)(1) (Mar. 1972) was binding on the Bureau, and if so, for further remand to the Commission to obtain a more complete psychiatric report by which the present feasibility of alternative actions may better be judged.
So ordered.
ROBB, Circuit Judge, concurring:
In my judgment the objective facts, independent of psychiatric opinions, required the conclusion that the appellant was not fit for continued employment in her position. I refer to the facts stated in n.25 and accompanying text of Judge Tamm's opinion, and those summarized in the Bureau's fitness-for-duty examination directive, quoted in n.4. Given those facts I cannot believe that the Bureau was required to keep the appellant in her position indefinitely, and it is difficult to think of another position which she might have filled. Nevertheless it does seem to me that the relevant Federal Personnel Manual provision, coupled with normal compassion, should have impelled the Bureau to consider extended leave without pay as an alternative to separation. Because the Bureau did not consider any alternative I concur in the remand.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge, dissenting:
My colleagues do not dispute the oft-stated principle that an administrative agency is bound by its own regulations.
The court finds, correctly in my view, that the Civil Service Commission relied on Dr. Eck's opinion in violation of pertinent procedural rules, by which the Commission is firmly bound.
Neither the Commission nor the court attempts to demonstrate that appellant could not possibly have successfully attacked or at least mitigated Dr. Eck's opinion had she been given the chance to do so.
Though, indubitably, some procedural improprieties can readily and truly be labeled "harmless,"
II
This, by my lights, is not a clear case. Dr. Eck's opinion aside, evidence of appellant's unfitness for continued duty at her assigned post is by no means overwhelming, even when measured by the test of arbitrariness and capriciousness applied by the court.
Unlike my colleagues, I am not at all sure that the evidence in this case supports an informed exercise of discretion in the direction chosen by the employing agency and later by the Commission. The court feels that there was a nexus between Dr. Valle's medical conclusions and "observed deficiencies in work performance or employee behavior."
I agree unhesitatingly that Dr. Valle's examination is too dubious a ground for an administrative finding that appellant could not feasibly have been reassigned. But what I cannot understand is how the same examination, with its implicit suggestion of nexus, sufficiently underpins a decision that appellant was unfit for the job she then held.
In any event, the evidence of unfitness was not exceptionally strong, and, against that backdrop, I am far from convinced that the Commission's utilization of Dr. Eck's opinion was harmless. In the absence of more compelling indications one way or the other, any conclusion as to the Commission's probable outcome had it not entertained that opinion strikes me as a largely uninformed guess. Nothing in the decision of the Appeals Examining Office indicates that it requested the opinion simply "out of an abundance of caution";
In short, I am unable to shed my very substantial doubt as to whether the Commission would have reached the same result but for its erroneous treatment of Dr. Eck's medical opinion.
FootNotes
Record 18-19, 96-97.
Although a finding that a decision is not "arbitrary or capricious" clearly must rest upon a corollary finding that the relevant factors upon which the decision is assertedly based are supported by some evidence, see Citizens to Preserve Overton Park, Inc. v. Volpe, supra, this court and at least one other have described the appropriate scope of review as including both a determination of the rationality of the decision and of the evidentiary support for it, perhaps only for emphasis' sake. See, e. g., Jenkins v. Macy, 357 F.2d 62, 67-68 (8th Cir. 1966); Dabney v. Freeman, 123 U.S.App.D.C. 166, 170, 358 F.2d 533, 537 (1965); Pelicone v. Hodges, 116 U.S.App.D.C. 32, 33, 320 F.2d 754, 755 (1963).
More recently, many and perhaps most of the judicial decisions reviewing adverse personnel actions also apply, or at least claim to apply, a so-called "substantial evidence" test. See, e. g., Alsbury v. United States Postal Service, 530 F.2d 852, 854 (9th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976); Polcover v. Secretary of Treasury, supra, 477 F.2d at 1226-27; Moore v. Administrator, 155 U.S.App.D.C. 14, 17, 475 F.2d 1283, 1286 (1973) (per curiam); Charlton v. United States, 412 F.2d 390, 395 (3rd Cir. 1969); Vigil v. Post Office Dept., 406 F.2d 921, 924 (10th Cir. 1969); Meehan v. Macy, 129 U.S.App.D.C. 217, 232, 392 F.2d 822, 837, modified on other grounds, 138 U.S.App.D.C. 38, 425 F.2d 469 (1968); Halsey v. Nitze, 390 F.2d 142, 144 (4th Cir.), cert. denied, 392 U.S. 939, 88 S.Ct. 2316, 20 L.Ed.2d 1399 (1968); Finfer v. Caplin, 344 F.2d 38, 41 (2d Cir.), cert. denied, 382 U.S. 883, 86 S.Ct. 177, 15 L.Ed.2d 124 (1965); Camero v. United States, 345 F.2d 798, 800, 170 Ct.Cl. 490 (1965).
The legal source for this requirement that an adverse federal personnel action be supported by substantial evidence is however, far from clear. For instance, under the Administrative Procedure Act, the substantial evidence test is limited to cases subject to sections 556 and 557 of that statute, as codified, or otherwise required to be reviewed on the record of an agency hearing provided by statute. 5 U.S.C. § 706(2)(E) (1970). Decisions involving the "selection or tenure" of federal employees are expressly excluded from the application of sections 556 and 557, id. §§ 554(a)(2), 556-557, and no other statute requires that an agency or Civil Service Commission hold a hearing on the record, see id. §§ 7501, 7512, though Commission regulations do, 5 C.F.R. § 771.307(b) (1977). See also 16 U.S.C. § 825l(b) (1970) (FPC); 29 id. § 160(f) (NLRB).
As a matter of practicability, it may not much matter how reviewing courts choose to label the tests they apply. Labels, experience tells us, seldom have much analytical utility and just as often may lead judges into a semantic Serbonian Bog. While an adverse action supported by substantial evidence of record may still be arbitrary and capricious, Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974), for instance if there is no rational connection between the grounds charged and the interest assertedly served by proceeding against the employee, see, e. g., Norton v. Macy, 135 U.S.App.D.C. 214, 417 F.2d 1161 (1969); Mindel v. Civil Service Comm'n, 312 F.Supp. 485 (N.D.Cal.1970); but see Alsbury v. United States Postal Service, supra, 530 F.2d at 856 ("dismissal was supported by substantial evidence and thus was neither arbitrary nor capricious"), an action that is not arbitrary or capricious logically must have some if not substantial evidentiary support in the record. To require more evidence than would be sufficient for a decision to pass muster under the arbitrary or capricious test of 5 U.S.C. § 706(2)(A) is, in effect, to invent a more generous judicial review of these personnel matters than the reviewing courts are entitled to. Accord, Wroblaski v. Hampton, 528 F.2d 852, 853 (7th Cir. 1976); Charlton v. United States, supra, 412 F.2d 395-400 (Stahl, J., concurring).
The nature of the particular job as much as the conduct allegedly justifying the action has a bearing on whether the necessary relationship obtains. The question thus becomes whether the asserted grounds for the adverse action, if found supported by evidence, would directly relate either to the employee's ability to perform approved tasks or to the agency's ability to fulfill its assigned mission.
We also do not consider the Bureau's occasionally imprecise interpretation of "chronic" in Dr. Valle's diagnosis to be the "morbid, irrational abreaction" that appellant characterizes it, id. at 23, or to have rendered its removal action arbitrary and capricious. We cannot say that the agency's treatment of the evidence was without a rational basis, and we do not presume to substitute our own judgment as to the weight to be accorded the medical evidence in the record. See Ellmore v. Brucker, 99 U.S.App.D.C. 1, 3, 236 F.2d 734, 736, cert. denied, 352 U.S. 955, 77 S.Ct. 329, 1 L.Ed.2d 244 (1956); Scroggins v. United States, 397 F.2d 295, 299-300, 184 Ct.Cl. 530, cert. denied, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968). See also Mendelson v. Macy, 123 U.S.App.D.C. 43, 47, 356 F.2d 796, 800 (1966).
1971 Leave Year from 6/7/71 through 1/8/72
10-1/8 days—8 occasions
1972 Leave Year from 1/9/72 through 1/6/73
67-6/8 days—37 occasions
1973 Leave Year from 1/7/73 through 5/21/73
when placed off duty
15 days—27 occasions
Record 61. Whether appellant in fact would have become employable with continued treatment, as Dr. Bernet opined, is not germane to the rationality vel non of the agency's decision that she was not then fit for duty. It is quite germane, however, in assessing the feasibility of placing appellant on extended leave-without-pay status. See text infra at ___ of 184 U.S.App.D.C., at 282 of 566 F.2d.The terms of the 1948 Act were rewritten in 1966, Act of Sept. 6, 1966, Pub.L. No. 89-544, codified at 5 U.S.C. 7153 (1970), as a general prohibition of discrimination because of physical handicap without reference to the specific personnel actions previously enumerated in the 1948 Act. The relevant House and Senate Reports evidence no further legislative intent on the matter. The provision as it presently exists provides as follows:
Id. The President is empowered to grant exceptions from the provisions of section 7153 by id. § 3302(2), but so far as our research discloses, he has not done so to this time.
Pursuant to this grant of statutory authority, as delegated to it, the Civil Service Commission promulgated regulations in 1969, 34 Fed.Reg. 5367 (1969), which prohibit an agency from taking
5 C.F.R. § 713.401(b)(3) (1974); accord, id. § 752.104(c). In the same year, 1969, the Commission gave more particularized vigor to section 7153's mandate and the policies expressed in various Presidential statements, see 306 FPM 1-3(2) (July 1969), on employment and retention of the handicapped when it established its Selective Placement Programs. FPM ch. 306. Under this program, agency management is charged with various responsibilities including generally
306 FPM 3-2(d)(2)(c) (July 1969). Consistent with congressional and executive branch policies, however, the program does not ensure job security simply because one happens to be handicapped. Although program coverage extends to physical, mental, and even social impairments, see id. 1-1, the Manual emphasizes that
Id. 1-2. A "mentally restored" person is defined as
Id. 5-1. In light of Dr. Bernet's medical conclusion, it appears that appellant currently falls within the terms of this program. See Record 86, 88. Finally, but not to exhaust the veritable plethora of other similar provisions within the Manual's many volumes, we note that the Commission considers itself responsible for establishing "realistic medical standards for jobs as related to actual job duties, thus permitting the handicapped to be employed in any position they can perform efficiently and safely." Id. 2-4(a). See also id. 1-4(b). Cf. id. 8-1, 8-2(e), 8-5 (reassignment in lieu of disability retirement).
That individual agencies have not invariably proceeded with enthusiastic vigor to achieve the goals established by Congress and the President is evident from McNutt v. Hills, 426 F.Supp. 990 (D.D.C.1977).
As Professor Davis has observed,
K. Davis, Administrative Law Treatise § 29.07, at 1011 (1970 Supp.). The Commission's brief recognizes that, at least in this circuit, judicial review in cases such as this calls for a decision as to whether the challenged action is supported by substantial evidence. Brief for Appellees at 11.
The "common law" of judicial review of administrative action indicates that where "the proper procedure is quasi-adjudicative[,] . . the proper standard of review is substantial evidence on the record as a whole." See Safir v. Kreps, 179 U.S.App.D.C. 261, 269, 551 F.2d 447, 455 (1977). The court rejects that test in favor of the arbitrary-and-capricious standard for this case on the basis of § 10(e) of the Administrative Procedure Act, which provides that "[t]he reviewing court shall . . . hold unlawful and set aside agency action . . . unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute". 5 U.S.C. § 706 (1970). Sections 556 and 557 establish certain requirements for hearings provided by §§ 553 and 554, and § 554, which requires hearings before certain adjudications, exempts actions involving "the selection or tenure of an employee." Thus the question whether employee-discharge litigation is intercepted.
Notwithstanding the language last quoted, we review here "the record of an agency hearing provided by statute". Although the Lloyd-La Follette Act does not expressly mandate a hearing, it does authorize one, and in this case one was "provided." See 5 U.S.C. § 7501 (1970) ("[e]xamination of witnesses, trial, or hearing is not required but may be provided in the discretion of the individual directing the removal or suspension without pay"). In fact, Commission regulations, promulgated pursuant to statutory authority, expressly require a hearing. 5 C.F.R. § 771.307(b) (1977) and, moreover, § 7501 itself implicitly does also. In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), at least six of the Justices concluded that, because § 7501 creates a "property" interest in continued employment absent cause, some sort of notice and hearing is constitutionally required. Id. at 166, 94 S.Ct. at 1650, 40 L.Ed.2d at 40 (Powell, J., with Blackmun, J., concurring) ("[t]he federal statute guaranteeing appellee continued employment absent `cause' for discharge conferred on him a legitimate claim of entitlement which constituted a `property' interest under the Fifth Amendment. Thus termination of his employment requires notice and a hearing"); id. at 185-186, 94 S.Ct. at 1660, 40 L.Ed.2d at 51 (White, J., concurring in part and dissenting in part) ("I conclude, therefore, that as a matter of due process, a hearing must be held at some time before a competitive civil service employee may be finally terminated for misconduct. Here, the Constitution and the Lloyd-La Follette Act converge, because a full trial-type hearing is provided by statute before termination becomes final, by way of appeal either through [the employing agency], the Civil Service Commission, or both"); id. at 226-227, 94 S.Ct. at 1680, 40 L.Ed.2d at 74-75 (Marshall, J., with Douglas & Brennan, JJ., dissenting) (due process requires a pretermination hearing to determine adequate cause for dismissal). Thus, to pass constitutional muster, the statute cannot be read to allow the entitlement it creates to be denied without some sort of notice and hearing. In reality, then, the statute "provides" a hearing. Cf. Reed v. Morton, 480 F.2d 634, 643, 25 A.L.R.Fed. 787 (9th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973) (Section 554 read as applying to hearings required either by a statute or by the Constitution).
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