DONALD RUSSELL, Circuit Judge:
The appellant, employed as a Research Mechanical Engineer, GS-12, in the Forest Service of the United States Department of Agriculture, Morgantown, West Virginia, filed this action in the District Court seeking review of his discharge, as approved in a decision of the Civil Service Commission's Appeals-Review Board (ARB) on February 20, 1976. Both the appellant and the appellees
The appellant had been employed by the Forest Service for nine years before the incident which lead to his discharge. There is no suggestion by the ARB that during this period of service he had not been a faithful and efficient employee or that his relations with his supervisors and fellow-employees had not been cooperative and cordial. The appellant testified, without contradiction that at no time during his employment had he been disciplined or censured. And, as a matter of fact, the incident resulting in his discharge did not relate to his performance as an employee,—it arose purely and simply out of a personal difficulty with a fellow-employee over a private business in which the two had engaged and a debt owed by such private business.
The private business out of which the appellant's difficulty with a fellow-employee arose was a retail tire business in Elkins, West Virginia. The business, known as the Elkins Auto Center, was operated as a corporation in which the appellant and one Biller, a fellow-employee, had equal ownership of the stock. For their stock, the appellant and Biller had each paid approximately $10,000. The appellant, however, had advanced from the funds of his three minor sons, approximately $20,000 additional to the corporation. The business was located in a building rented by the corporation from Biller. It was not a successful venture. The reason for its failure is not clear but it was the appellant's belief that Biller was responsible for the business' failure.
As the business began to flounder, Biller claimed to have transferred his stock in the corporation to the appellant and to have disassociated himself from the business. The actual date of the assignment by Biller of his stock to the appellant was, however, subsequent to the business' failure and also subsequent to the incident in question. In any event, as the business was failing, Biller began "pushing and pushing" the appellant individually to pay the back rent due him by the corporation. On the Friday before the pertinent incident on Monday, April 9, the tire supplier of the business repossessed all the then stock of the corporation. At that point the corporation had nothing but some few doubtful accounts-receivable and substantial unpaid debts. The appellant was out his $10,000 investment and the $20,000 he had advanced from the inheritance of his minor sons. It was with this background that the appellant reported for work on the morning of April 9.
After the appellant had begun work on April 9, Biller went to appellant's office where he found him quite distraught. He immediately began pressing the appellant to pay the back rent due him individually by the defunct corporation in which the two had been involved.
At the suggestion of Pruett, Biller and the appellant went to their supervisor and reported the incident. The appellant gave as his explanation that he was emotionally upset, that he needed psychiatric treatment, and that Biller "kept pushing me and pushing me." Biller replied directly to the appellant, "Well, Ross, you have to make the payments."
The decision in this case turns on the power of an agency to discharge and the circumstances under which such power may be exercised. Congress has expressly denied to an agency the right to discharge or suspend a civil service employee save for "such cause as will promote the efficiency of the service."
There is, of course, some conduct with respect to which the "nexus between the dismissed employee's activities and the efficiency of the service" is "obvious on the face of the facts."
Another case has stated the "vital nexus" requirement in the off-duty or non-work-related case as raising the question "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."
Nor does the agency satisfy its obligation under the statutory authority by merely parroting the language of the statute (i. e., that the discharge will "promote the efficiency of the service"). This was bluntly declared in White v. Bloomberg (D.Md.1972) 345 F.Supp. 133, 144, aff'd. 501 F.2d 1379 (1974):
Except in the obvious case where the misconduct is on its very face prejudicial to the efficiency of the service—a category of misconduct limited to acts directly related to the employee's performance of his duties—the agency "`must demonstrate some "rational basis" for its conclusion that a discharge "will promote the efficiency of the service".'"
A majority of the jurisdictions declare the standard for judicial review to be the substantial evidence rule.
The decision of the Commission in this case proceeded on the false assumption that "[t]here is no requirement that the agency state specifically that the proposed action will promote the efficiency of the service or that it explain why it believes the action will promote the efficiency of the service." In adopting this view, the Commission was merely following the recommendation of its Director of Personnel Management, who, recognizing that at none of the intermediate steps in the proceedings had the "efficiency of the service" been addressed, had said that "[f]ailing to spell out how removal would promote the efficiency of the service is not necessarily a fatal error as determined in Begendorf v. United States, 340 F.2d 362, 169 Ct.Cl. 263 (1965)."
Consonant with the view that there was no requirement on them to spell out how the appellant's conduct was detrimental to the efficiency of the service, the agency and the several administrative bodies to which the agency's decision was appealed did not endeavor to state some "identifiable" basis for finding a detriment to the "efficiency of the service" in the appellant's act. The nearest the record shows any attempt in this regard appears in the recommendation of the Director of Personnel Management, as made to the Appeals Review Board. In this recommendation, he said:
However, neither the Appeals Review Board nor anyone of the other reviewing parties or agencies cite Ruffin as the basis for the action taken. Perhaps the reason was that this case is so entirely different from Ruffin. In Ruffin the discharged employee assaulted his superior on the job and in an incident arising in connection with the employee's work. It involved a case of gross insubordination committed on the job in the presence of all the other employees. That simply is not this case.
In the present case, Biller was not the appellant's superior. The alleged misconduct by the appellant did not consist of insubordination toward his superior in connection with the performance of his work nor had the appellant assaulted his superior on the job in the presence of all other employees. The incident, on account of which he was discharged, arose out of a strictly private difficulty between Biller and the appellant. It took place while both were off-duty for their lunch hour and at a place remote from the work place of both of them, i. e., at "an enclosed stairway separated from the rest of the building." That is in no way similar to an employee assaulting his superior on the job. Ruffin is inapposite.
The Commission, however, seems to have confused the facts of this case and inadvertently to have given to it a semblance of similarity to Ruffin. And this represents the only possible basis for finding in the decision of the Appeals Review Board any statement of a possible reason for a finding of prejudice to the service arising out of the act of the appellant. Thus, in summarizing its conclusion, the Appeals Review Board said:
This possible justification for its action, as stated by the Appeals Board, was as far removed from the actual facts in the case as
It follows that whether we assume that the Appeals Board did not make a determination on the question whether appellant's discharge would promote the efficiency of the service because, as it said, it thought this unnecessary, or that the sentence quoted supra from its decision constituted its basis for a finding that the discharge did promote the efficiency of the service, the decision is fatally flawed. If the Appeals Board failed to make a specific "identifiable" finding on this point because it thought such a finding unnecessary, the Board erred as a matter of law: It is obligated to make such a finding with factual specificity. If, on the other hand, the language we have quoted is to be treated as conforming to the legal requirement of a factual justification of the discharge for the good of the service, it is defective as resting upon a completely incorrect factual basis. In either event, the administrative record does not satisfy the statutory requirement for a discharge of a public employee under § 7501(a).
Moreover, the appellant's offense has been considerably inflated in the course of the proceedings. It is said he committed a vicious assault on Biller. But there were no blows passed between the appellant and Biller; neither suffered the slightest injury. It is said that the appellant threw a rope about Biller's neck and began choking him. Biller suggested, at another point in his testimony, that it was much like a piece of binder's twine and the appellant indicated in his testimony it might have been a small rope such as would be used by draftsmen in making measurements on plans or drawings such as he had been working on that morning. If the appellant applied any pressure, it was minimal, since it is admitted that there was no evidence of any such pressure having been applied on Biller's neck. Biller did go to a doctor but the doctor, after examining Biller, did not give him any medication and dismissed him as in need of no medical attention of any kind. Biller was not injured in any way and was not in any real danger of being garotted, as the agency report would intimate.
There was every reason to have dismissed the whole proceedings both upon the ground that the incident was too trivial and petty for the drastic penalty of termination of employment and upon the ground that there was no "rational basis" for a finding that the discharge would promote the efficiency of the service. And this is particularly so in the light of appellant's psychiatric disability at the time. The administrative record suggests that this point was disregarded because it was assumed that the need for psychiatric treatment by the appellant was not real but feigned. This is indicated by the comment in the record and in the argument in this Court that the appellant was never confined at the University Hospital and was free to go at will. Whether the appellant was confined or not, he was subjected to a series of shock treatments over a period of approximately ten days at the Hospital under the direction of the University psychiatrists. It cannot be assumed that these physicians would have
Accordingly the judgment of the District Court is reversed and the cause is remanded to the District Court for the entry of appropriate judgment in favor of the appellant.
K. K. HALL, Circuit Judge, dissenting:
I must respectfully dissent. I am sympathetic to the plight of Mr. Phillips, who had a long and unblemished work record and was certainly under considerable mental stress. But the fact remains that he assaulted a fellow employee on work premises and during working hours.
The attack on Biller was an assault whether perpetrated with a piece of twine or a hangman's noose. The attack took place on business premises whether "at an enclosed stairway" or in a working area. The attack took place during working hours whether at lunchtime or otherwise. The fact that the attack arose from a private dispute is irrelevant.
Notwithstanding the majority's heroic effort to distinguish away Ruffin v. United States, 144 Ct.Cl. 689 (1959), I am of the opinion that the case is controlling here. The sanction of dismissal imposed on Mr. Phillips by the Civil Service Commission Appeals Review Board was a hard one, but it was well within the discretion of the Board.
I would affirm the order of the district court.
Of these the more important—the one which expresses that statutory limitation on an agency's right of action—is the requirement of a finding that the discharge will "promote the efficiency of the service."