Wathen v. United States

Laramore, Senior Judge,

dissenting:

The facts of this case are concededly grotesque. As the majority views the unhappy events:

On Mother’s Day, Sunday, May 9,1965, * * * plaintiff and Miss McLaughlin set out by car * * *. [F]or unknown reasons an altercation took place between them. They left the car, whereupon plaintiff seized a 4-barreled Derringer and killed her with two shots as she sought to flee * * *.

Plaintiff, a veterans’ preference eligible, was at this time employed by the Internal Revenue Service. Charged with murder, he was found by a Maryland state court to have been not guilty by reason of insanity. Since that time, however, a jury in a later proceeding found that plaintiff had regained his sanity. He now seeks reinstatement to his former position with back pay.

The majority goes to great pains to demonstrate that this is a case easily decided. But my brothers rely upon the emotional appeal of the facts and a conception of judicial review of administrative action — which, in my judgment, no longer prevails — to cloak this court’s responsibility to dispassionately resolve the issues.

While in this case a potentially unpopular result renders this responsibility onerous, I must accept the burden and respectfully dissent.

I

Primarily, I cannot accept the standard of review which is being adopted today in the opinion of the majority. At one point my brothers quote part of a paragraph from Schlegel v. United States, 189 Ct. Cl. 30, 40 , 416 F. 2d 1372, 1378 (1969), cert. denied, 397 U.S. 1039 (1970), for the proposition that this court has no role to play in determining whether or not there is a sufficient nexus between the removal action under review and the efficiency of the service. Recitation of the full passage is necessary to demonstrate their mis *363 taken reliance on the language quoted out of context (emphasis supplied to the portion omitted by the majority):

Whether a person’s discharge will promote the efficiency of the service is an administrative decision to be determined within the discretion of the agency, and no court has power to review the action, if taken in good faith. Brownell v. United, States, 164 Ct. Cl. 406, 408-409 (1964); Gadsden v. United States, 111 Ct. Cl. 487, 489 , 78 F. Supp. 126 (1948). At the trial of the instant case before Commissioner Stone, three of plaintiff’s superiors offered testimony indicating that the morale and efficiency of the office would ham been affected by plaintiff’s continued presence. This testimony, when coupled with the administrative determinations concerning efficiency of the service, constitutes convincing proof that plaintiffs removed promoted the efficiency of the service and eliminated plaintiffs detrimental influence on the efficiency of the service.

Several observations concerning Schlegel are in order. First, as the emphasized language cited above makes clear, this court affirmatively agreed with the determination of the Civil Service Commission and blind reliance upon agency expertise was not utilized in that case. Before affirming the agency’s decision, we satisfied ourselves that the removal promoted the efficiency of the service. Second, Schlegel expressly distinguished the facts of Norton v. Macy, 417 F. 2d 1161 (D.C. Cir. 1969). My reading of Schlegel leaves me perplexed as to the basis for the implicit conclusion by the court in the instant case that Schlegel disapproved the standard of review used in Norton . To the extent any disagreement may have been expressed in Schlegel, it concerned the substantive merits of the disputed discharge, rather than the standard of review. Schlegel, supra, 189 Ct. Cl. at 40-41 , 416 F. 2d at 1378 .

It is true that at one time the prevailing view was to rely exclusively upon the expertise of administrative agencies for correct application of specialized statutes. See, e.g., Gray v. Powell, 314 U.S. 402 (1941). However, the advent of the Administrative Procedures Act 1 in 1946 precipitated an *364 eventual shift in emphasis so that courts now have a responsibility to review even discretionary administrative action. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); Ciambelli v. United States, 198 Ct. Cl. 240 (1972). Acknowledging this, the majority, in this case, adopts “good faith” as its standard of review. And at certain points in its opinion the court appears to define a “good faith determination” in a manner which would preclude arbitrary and capricious action, a determination unsupported by substantial evidence or an action contrary to law. Yet, my brothers allude to those terms without any real attempt to apply their meaning. While the scope of review under these standards may indeed be narrow, this court has an important responsibility to determine whether a particular case falls within the narrow category of cases where it must determine that legal-error has been committed.

The Supreme Court of the United States in Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285 (1974), has recently laid down the rule that, as a reviewing court, we must determine the legal framework within which administrative discretion is exercised:

Under the “arbitrary and capricious” standard the scope of review is a narrow one. A reviewing court must uconsider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment * * *. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, supra at 416 . The agency must articulate a “rational connection between the facts found and the choice made. Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962) * * *. [Emphasis supplied.]

Bowman states what I believe in this case to be the proper scope of our responsibility of review.

II

I consider now the action taken by the agency which is at issue and additional reasons which compel me to voice my disapproval of the court’s review. The court devotes substantially all of its discussion to the removal action by the In *365 ternal Bevenue Service (IES) on June 4, 1965, and the evidence adduced by the IES at that time. Only one meager statement in the majority’s opinion reveals that plaintiff’s case was, in fact, reopened by the Civil Service Commission and remanded to their Appeals Examining Office (AEO) for a new adjudication on the merits. The reopening of the case for a decision on the merits, in my view, spares this court the necessity of having to decide whether the removal action taken by the IES was improper. Instead, the action I would regard as coming under review is the notice of April 4,1968, by the Chief of the AEO (affirmed by the full Board, by letter, on June 28, 1968), in which the plaintiff’s removal was sustained.

Since the Civil Service Commission’s decision of April 4 should have been the agency action primarily reviewed by this court, this court’s review should have taken into account all of the evidence available to the Civil Service Commission at the time of his final action, and not merely the evidence adduced at the time of removal by the IES. Moreover, in considering the issue of arbitrariness, the court may review all- available evidence, including de novo evidence taken before one of our trial judges, as well as the administrative record. Schlegel v. United States, supra; Brown v. United States, 184 Ct. Cl. 501 , 396 F. 2d 989 (1968).

It is beyond question that there has been at least a minimal showing, upon the record, that plaintiff’s mental condition was impaired at the time he committed the act for which he was removed. The decision of the AEO on April 4 impliedly refers to this in stating that plaintiff’s conduct was inconsistent with the proper standard of conduct for employees “regardless of their state of mind.” Thus, plaintiff’s state of mind was a factor taken into account by the AEO in passing upon the legal merits of plaintiff’s discharge. In light of this, the decision of the AEO enunciates what, in my view, is an erroneous construction of the laws applicable to the facts of this case.

With respect to the legal merits, the April 4 decision stated, in pertinent part:

* * * The fact of the matter is that an Internal Beve-nue Agent has killed a human being, and has only escaped punishment by virtue of a plea of insanity. It is a simple *366 conclusion of fact that the unjustified hilling of a human being is inconsistent with the standard of conduct for employees in the Federal Berime regardless of the state of their mmd at the time the hilling was committed. Therefore, we find the appellant’s removal was for a cause which promoted the efficiency of the service. [Emphasis supplied.]

And yet, both the IES and the Civil Service Commission accept the view that mental illness is not a cause for removal or denial of reinstatement if the employee has recovered. The Civil Service Commission policy, set forth in Federal Personnel Manual, chapter 306, 5-2 (1969), is that, “as a general rule, a history of mental illness is not disqualifying for Federal employment provided that recovery has been certified by competent medical authority and the applicants are capable of performing the duties of the position without hazard to themselves or others * * •*.” Thus, subchapter 5-2 provides for initial employment and for reinstatement if the employee has previously been dismissed for reasons attributable to mental illness. See Manzi v. United States, 198 Ct. Cl. 489, 493-494 (1972). I think it odd that while cured mental illness is not disqualifying for Federal employment that an employee could still be subject to a disciplinary dismissal for conduct resulting from such an illness. 2

Plaintiff is entitled to the benefits of the Veterans’ Preference Act of 1944, 5 U.S.C. §§ 3315 , 7512, 7701, which was designed to confer a measure of additional job security on veterans not enjoyed by unprotected Federal employees. Insofar as Congress provided therein that an employee having such status may be dismissed “only for such cause as will promote the efficiency of the service,” it plainly meant that “the employer agency must demonstrate some ‘rational basis’ for its conclusion that a discharge ‘will promote the efficiency of the service.’ ” Norton v. Macy, supra at 1164. I believe it is not reasonable nor rational to construe the Eules of Conduct of IES Employees to threaten sanctions for anything less t-ban volitional or conscious behavior because there is no real deterrent purpose that can be served in a disciplinary *367 removal when all the evidence points to lack of moral culpability. Cf . Morissette v. United States, 342 U.S. 246 (1952). The Civil Service Commission’s action in this case thus smacks of emotionalism rather than reasoned decision making.

Moreover, I do not believe, as the majority implies, that in enacting the Veterans’ Preference Act of 1944, Congress intended to permit an agency to achieve the purpose of acquiring or maintaining a good public image at the price of dismissing veterans as disciplinary measures for conduct for which they may have been wholly without legal fault. I cannot, in good conscience, join the court today in holding that “fault may be in the eye of the beholder,” for to do so would be taking away a good measure of the job protection that Congress sought to provide for veterans who have honorably served the country in and out of military uniform.

In summary, my view is that the Commission was under a clear legal misapprehension when it refused to consider the plaintiff’s state of mind as bearing upon his legal and moral culpability. However, there is no need to remand this case to the Civil Service Commission because no exceptions were taken by either party to the factual findings of Trial Judge Miller, and the case is now one purely of applying the law to the findings. Two pivotal findings read as follows:

41. On May 8, 1965, at the time when plaintiff killed Miss Winifred O. McLaughlin, plaintiff was of such mental incapacity and reason so as not to be able to properly distinguish between right and wrong, nor to know the nature and consequences of his acts as applied to himself, and was not responsible for his actions.

42. On April 6, 1966, when plaintiff applied to IRS for reinstatement to the position from which he had been removed, and at all relevant times thereafter plaintiff was recovered from his mental illness, was of sound mind, did not represent a threat to the safety or property of others, and was fully able to perform the duties of such position.

On this basis, I would find that the Civil Service Commission could not properly find that legal “cause” existed for *368 plaintiff’s removal for violating the Rules of Conduct of IRS Employees. 3

However, with respect to the question of reinstatement, I concur with the majority because, under the jurisdictional act of this court, restoration is discretionary.

Act of June 11, 1946, 60 Stat. 237 , as amended, 5 U.S.C. §§ 551 , et seq., and 701, et seq.

There Is no doubt that the charge upon which plaintiff’s dismissal was based was a disciplinary one because It was based purely on plaintiff’s past conduct and not his inability to perform in the future.

This proceeding' involves questions of exceptional importance and difficulty, and since tie opinion of the court, in my judgment, seems to depart from prior decisions with respect to the question of our scope of review, this case appears to be an appropriate candidate for rehearing en banc pursuant to Rule 7 (b) or (d).