The opinion
Nichols, Judge,
concurring.
I agree that the plaintiff in this action ought not to recover and that the petition must be dismissed. I think plaintiff failed to sustain her burden of proof. I am unable to join with a plurality of the court in adopting the commissioner’s detailed Findings and Opinion modified as its own. In light of the dissatisfaction stated by our dissenters, I would have joined in reopening the record to include relevant material not now found therein.
At the risk of seeming to labor the obvious, I think it is important to begin by noting that the Civil Service Commission’s action here under review subjects the plaintiff to involuntary retirement under authority of 5 U.S.C. § 2257 (a), because of psychiatric disability. We are not referred in this case to published standards of what constitutes such disability. Psychiatric disability I suppose does not necessarily mean that the person is insane, has a mental deficiency or defect, needs to be placed in an institution for his own or others’ safety, or is incapable of managing his own property and funds. There are conditions short of any of these which are due to psychiatric causes, or are believed to be, and which render the afflicted individual in ordinary speech “unemployable”, that is, incapable of rendering useful service on the assigned job in a large organization such as a Federal department is. For the CSC, as its notices to plaintiff made clear, unemployability is disability and what the latter word may mean in any other context is irrelevant. This is natural in an organization concerned with persons in their employment relation with the Government, not their private lives.
Most Federal agencies do not maintain periodic psychiatric checks on their employees, though some are said to do so. In the former category of agencies a condition of psychiatric disability normally comes to be suspected because of contemptuous and insubordinate behavior, inability to make decisions or complete work assignments, or other forms of conspicuous unhelpfulness on the job. Frequently, though not invariably, the employee who is suspected of being psychiatrically disabled will passionately and bitterly oppose any suggestion that he retire voluntarily. Frequently, too, in such cases, the behavior evidencing psychiatric disability also displays inefficiency or a violation of agency rules, making it *311 possible to obtain the employee’s separation on ordinary charges. As an example, see the litigation reported as Seebach v. United States, 182 Ct.Cl. 342 (1968); and Seebach v. Cullen, 224 F.Supp. 15 (N.D.Cal.1963), aff’d 338 F.2d 663 (C. A. 9, 1964), cert, denied 380 U.S. 972 , 85 S.Ct. 1331 , 14 L.Ed.2d 268 (1965). If the agency elects to act by way of disability retirement it is due to an unwillingness to turn a person it deems unemployable out on the street without means of support. Disability retirement carries with it a modest pension. In view of the difficulties likely to be caused by the employee, an agency choice of this course of action would appear, prima, facie, at least, a high-minded one, if quixotic.
Even in connection with employee actions less obviously motivated for the employee’s welfare, we have held that there is a strong presumption that official actions are taken in good faith and that the proof of bad faith in such a situation “requires especially strong evidence.” Gibson v. United States, 176 Ct. Cl. 102, 109 (1966); Keener v. United States, 165 Ct.Cl. 334, 339 (1964); Knotts v. United States, 121 F.Supp. 630 , 128 Ct.Cl. 489, 492 (1954). In Knotts we said at p. 492, 121 F.Supp. at 631: ******
Personnel disputes are hard to resolve. In undertaking to do so, we start out with the presumption that the official acted in good faith. We are always loath to find to the contrary, and it takes, and should take, well-nigh irrefragable proof to induce us to do so. * * *
******
“Irrefragable” means, “impossible to gainsay, deny, or refute,” per Webster’s Third Internationa] Dictionary.
There is finality language in the statute involved, which is, that the question of disability, “shall be determined by the Commission and its decision with respect to such matters shall be final and conclusive and shall not be subject to review.” ( 5 U.S.C. § 2266 (e)). We have held that the extent of judicial review in disability retirement cases is limited and confined to “a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error ‘going to the heart of the administrative determination.’ ” Gaines v. United States, 158 Ct.Cl. 497, 502 , cert, denied 371 U.S. 936 , 83 S.Ct. 309 , 9 L.Ed.2d 271 (1962). Accord, Cerrano v. Fleishman, 339 F.2d 929 , 931 (2d Cir. 1964), cert, denied, 382 U.S. 855 , 86 S.Ct. 106 , 15 L.Ed.2d 93 (1965). In Cerrano, supra, the court said at p. 931 of 339 F.2d:
******
* * * The evidential matter used and the Commission’s method of receiving it, as well as the conclusions reached, were clearly within the area of its exclusive authority and cannot be disturbed. * * *
This case originally came before us on cross-motions for summary judgment and as I understand it, the defendant’s motion would have been allowed, except for a factual dispute put forward by the plaintiff as to whether a Dr.-Overholt, a psychiatrist, shown to have examined and diagnosed her in the administrative record, actually did so. We referred that issue to our commissioner, but in the way these cases so often have, his inquiry greatly broadened out, with our permission, and he ended up making sweeping Findings covering the whole history of the case. Nevertheless he did not reopen or reconsider rulings he had made excluding evidence on the ground of the narrowness of the original issue. The result is that the evidence is incomplete. If we are going to indulge in the sweeping review the commissioner’s Opinion and Findings, even as modified, indicate, we’ should first reopen the record and get all the pertinent documents properly before the court. If we stick to the narrow scope of review indicated by the authority cited, supra, the record is sufficient, but in that event much of the Opinion and Findings are surplusage and should be eliminated.
I think I am entitled to consult the entire administrative record for the pur *312 pose of determining whether the adjudication of this case on fragments of that record is proper, and that I have done. The court papers include a number of documents that apparently came to us as part of the administrative file on the cross-motions, but were either offered in evidence before the commissioner and excluded, or else were not even offered.
It would perhaps, be inappropriate to consult evidence not admitted by the commissioner in order, e. g., to propose reversing him on the facts, but that I am not doing. Cf., however, Osage Nations of Indians v. United States, 97 F.Supp. 381 , 119 Ct.Cl. 592 , cert, denied, 342 U.S. 896 , 72 S.Ct. 230 , 96 L.Ed. 672 (1951), in which we took judicial notice of an array of historical material, not before the Indian Claims Commission, including a lawsuit between different parties in another court, in order to reverse certain of its fact findings. Chief Judge Jones and Judge Howell would have remanded to the Commission for consideration of the new material (which is what, as-an alternative, I would do here) except that they deemed that this court was exercising equity powers.
I think we are entitled to consider what is in our court records for the limited purposes I consider it. Fletcher v. Evening Star Newspaper Co., 77 U.S. App.D.C. 99, 133 F.2d 395 (1942), cert, denied 319 U.S. 755 , 63 S.Ct. 1163 , 87 L.Ed. 1708 (1943); Porter v. Merhar, 160 F.2d 397 (6th Cir. 1947).
Like the dissent, I draw certain inferences from the record which the plurality does not recognize, only mine are different from the dissent’s. E. g. the dissent infers the presence of a “hatchet man” in the CSC and I infer a mere blunderer. We are all guilty of “speculation” if one likes to use the word. In Weiss v. United States, 180 Ct.Cl. 863, 871 (1967), I stated for a unanimous court as follows:
* * * This court has not sat for over 100 years without acquiring some Judicial knowledge of how things are done in the executive branch. * * *
Of course the idea cannot be pushed too far, but at any rate, if the technique was valid to enable us to say in Weiss , that:
* * * The JAG final opinion afforded documentation and justification for the Secretary’s decision, which he needed and waited for.
as to which there was no direct evidence, it is equally valid to enable us to draw certain fact conclusions herein, as I do. I turn, therefore, without further apology, to the history of the claim as revealed in the court papers. I do not obtain facts about the case from any other source.
Plaintiff, a veteran, was a clerk typist at the Air Force Accounting and Finance Center at Denver, Colorado. The Air Force sent a letter to the CSC requesting her involuntary retirement under the law referred to above. That letter is in the administrative file but it lists enclosures on the lower left hand corner which are now not attached. One of these, I am certain, must have been an account of plaintiff’s behavior on the job. Where, as I presume here, unsatisfactory performance on the job, in the first place generates the suspicion of mental disability, and where, as here, ability to do the job satisfactorily is the controlling consideration, it is inconceivable that such a report would not have been forthcoming. The Air Force also referred to a diagnosis by a J. P. Hilton, M. D., of Denver, who sent a letter marked Personal and Confidential to a Dr. Albers of the Finance Center, stating that his diagnosis of plaintiff’s condition was schizophrenic reaction, paranoid in type. That was offered in evidence and the commissioner excluded it. When the plaintiff went to see Dr. Overholt, as appears in the Findings, she gave him a long account of her consultation of Dr. Hilton and the reasons. He took it down and it is part of his report which is in evidence. The agency had asked her to go to a Government doctor and she at first refused, but finally requested permission to consult Dr. Hilton who was a private physician. She became aggriev *313 ed against him because he transmitted his adverse diagnosis to a friend in the Air Force. Naturally, a diagnosis from a proposed retiree’s private doctor had more weight with the CSC than one by a Government doctor, and an interoffice memo in the administrative file indicates that it was so regarded by the Board of Appeals and Review. It is the commissioner’s exclusion of this diagnosis that enables our dissenters to argue that the evidence before the CSC was sketchy. Why the CSC wanted another diagnosis is not entirely clear but obviously the matter was important enough to justify getting two. Inferentially, however, Finding 5 shows the CSC would have acted on the Hilton diagnosis alone, and sought another only after it became apparent that plaintiff had retained counsel, and there was going to be litigation in all probability unless they backed down. Furthermore, use of Dr. Hilton’s diagnosis in litigation might have embarrassed him by exposing him to the charge, whether valid or not, that he had violated his Aesculapian oath. That would have been regrettable, but the exclusion of the Hilton diagnosis and the silence of the Findings about it produce a distorted impression as to the substantial nature of the evidence before the CSC. Moreover, the impression is conveyed that the CSC doctor, Dr. Tish, Chief of the Disability Retirement Section, invented the charge that plaintiff was a schizophrenic paranoic out of thin air, and this idea is taken up by our dissenters herein. Finding 4 refers to the fact that the Air Force referred to a “disability diagnosis in a report by a psychiatrist” though in fact Dr. Hilton did not say plaintiff was disabled and did say that his diagnosis was schizophrenic reaction, paranoid in type.
The Opinion and Findings describe how Dr. Tish requested a new diagnosis from doctors attached to the Veterans Administration Hospital after the plaintiff had showed fight and retained counsel, and how plaintiff went there. The reports by the psychiatrist, Dr. Overholt; a general physician, Dr. Masten; and Dr. Herring, a psychologist, are shown in the Findings. The curious thing here is plaintiff’s testimony about this visit. She denied that Dr. Overholt or anyone else gave her a psychiatric test at that time, but claimed she was examined by a Dr. Baumgarten. The Government showed that there was no Baumgarten in the hospital at the time of the only examination the plaintiff had, but that a doctor of that name was added to the roster afterwards. Plaintiff was thus caught in a fabrication that could not but have been deliberate. I consider this would require dismissal under 28 U.S.C. § 2514 . See my concurring opinion in Eastern School v. United States, 381 F.2d 421, 438 , 180 Ct.Cl. 676 (1967). I do not understand why our commissioner’s sweeping and detailed Findings include no reference to Baumgarten.
Dr. Masten found nothing wrong with plaintiff except halitosis, but there is a typed statement at the foot of his report alleging that the plaintiff is totally disabled, Finding 21. The parties stipulated that neither Dr. Masten or Dr. Overholt wrote this and there is no evidence who the guilty party was. The commissioner characterized this statement as arbitrary and capricious. That is an instance of verbal over-kill. No one out to railroad the plaintiff into involuntary retirement would perpetrate anything so absurd as a claim of total disability on a finding of halitosis. It seems obvious to me that this is an instance of clerical error such as might occur in any large office where statements have to be typed repetitively on numerous documents. I entirely agree with the commissioner that this clerical error could not influence the judgment of the CSC.
The terms “arbitrary and capricious” are epithets applied by judges and lawyers to what they deem abuses of power, by persons who have some. “Arbitrary” standing alone means about the same. The act of a person having no legal power cannot be arbitrary or capricious in the legal sense. Clerks do not have that kind of power. Thus “arbitrary and *314 capricious” and “clerical error” are antithetical concepts, both of which cannot apply accurately to the same act. There is no evidence that anyone having legal power wrote the statement, or directed it to be written, and the stipulations and evidence seem to eliminate all persons in that category whose names are before us. If a clerk wrote it sua sponte his act might have been a fraud, a forgery, or a mistake, but it could not have been arbitrary or capricious. There is another possibility: that a person having legal power wrote it, but sought to pass it off as Dr. Masten’s statement, not his own. That seems to me unlikely, for the reason already given, but for completeness let us not exclude it. Since the effect of typing the statement above Dr. Masten’s previously affixed signature would make it falsely appear it was Dr. Masten’s statement, that too would be a fraud or forgery, and not arbitrary or capricious. The offender’s legal power would be irrelevant as to a statement he passed off as someone else’s.
This is not just an exercise in sterile semantics. Many of us may be and frequently are arbitrary and capricious in the legal meaning, in perfect good faith, from a mistake as to the scope of our lawful powers or as to the sufficiency of the reasons for exercising them. This court frequently calls actions of administrative tribunals arbitrary and capricious, with no sense that it is impugning the honesty or honor of their members. On the other hand, no one would accuse another of forgery or fraud without expecting that the accusation would boomerang absent convincing proof. The dissent says, properly in its view of the facts, that we are concerned with wilful wrong doing. My analysis I think has shown that we are here indeed concerned with an issue of wilful wrong doing versus honest mistake, notwithstanding the unfortunate “arbitrary and capricious” terminology first introduced into the case by our commissioner.
In Irolla v. United States, 390 F.2d 951 , 182 Ct.Cl. 775 (1968), we considered accusations of fraud against a deceased taxpayer. While we sustained them, it was only on the basis of evidence we considered compelling, as to his actual state of mind. We had a vigorous dissent which denied that the evidence was sufficient. It stated that the evidence Mr. Irolla had a fraudulent intent to evade taxes failed to show it “by clear and convincing evidence.” It said the Government’s case was “made by piling inference on top of inference and suspicion on top of suspicion, without any substantial, much less clear and convincing, evidence to support it.”
I agree that legal proof of fraud cannot be assembled in that manner. I think the evidence as to the existence of the supposed “hatchet man” in the CSC, who ex hypothesi committed forgery or fraud, should be tested in similar fashion, and so tested, must be found similarly put together. The “irrefragable evidence” test of Knotts assuredly is not less exacting than the “clear and convincing evidence” test. If the “hatchet man” hypothesis fails, the case is one of honest mistake.
The civil servant is, in the eyes of many, game always in season. In Government civilian personnel disputes, charges of official bad faith are blithely bandied about. Any civil servant, except a plaintiff, concerned in such a controversy may find his honor and professional reputation at issue, in litigation wherein he is not a party and is not represented by counsel. And this although he is a salaried man who has not one dollar riding on the outcome of the case. It was considerations such as these, I think, that led the experienced judge who wrote the court’s opinion in Knotts, supra, to require that proof of bad faith on the part of an official involved shall be “well-nigh irrefragable.”
The dissent is commendably reticent in naming the “hatchet man” who was guilty in its eyes of this forgery or fraud. I do not suppose the “irrefragable proof” should be any less just because the accused official is left unnamed.
*315 Since the retirement was for psychiatric disability, and since for whatever reason the Hilton diagnosis was dropped into limbo, obviously the Overholt diagnosis was crucial, though it had support by the psychologist. Dr. Overholt testified that he did not remember plaintiff personally, but nothing except plaintiff’s patent falsehoods was elicited to suggest that the written record of his examination was false in any material respect or that he was not qualified to make the examination.
Dr. Hilton had said plaintiff’s condition was “schizophrenic reaction, paranoid type”. Dr. Overholt’s diagnosis was:
Schizophrenic reaction, chronic, undifferentiated type, in partial remission. External precipitating stress, and predisposition not determined by this examination. Impairment, severe. Competent.
“Competent” simply meant plaintiff’s pension would safely be paid direct to her, so that a guardian or conservator was not necessary.
This is the fourth case to come before us in six months involving plaintiffs having or alleged to have somewhat similar sounding disabilities. The other cases are: Russell v. United States, 183 Ct.Cl. - (No. 30-65, decided April 19, 1968); Seebach v. United States, supra, (January 19, 1968); and Davis v. United States, 181 Ct.Cl. 1095 (1967). I think it is time we began to take some judicial notice of what these words mean. They are, indeed, in common speech and one can find definitions in abridged dictionaries, not just medical dictionaries or those that are unabridged. I take the following from Webster’s Seventh New Collegiate:
PARANOIA. — a rare chronic psychosis characterized by systematic delusions of persecution or of grandeur usually not associated with hallucinations.
PARANOID SCHIZOPHRENIC. — a psychosis resembling paranoia but commonly displaying hallucinations and marked behavioral deterioration.
SCHIZOPHRENIA. — a psychotic disorder characterized by loss of contact with environment and by deterioration of personality.
Dr. Overholt was a V.A. doctor. The V.A. general rating formula for psychotic reactions is set forth in the Davis case and indicates that on a scale of 100 “severe impairment” means 70%.
In view of this, the testimony, arguments, and findings concerning who was to determine if plaintiff was “totally disabled” appears to me to relate to a ministerial function and to involve some splitting of hairs. The failure to retire plaintiff on a pension would have been a shocking miscarriage of justice, both as to her and as to the employing agency.
In the Russell case the plaintiff had in his medical record a finding by a non-psychiatrist doctor reading in pertinent part:
Schizophrenic reaction, paranoid type, chronic, moderate * * * impairment moderate.
We held that this was “evidence of mental illness” such that under pertinent Air Force regulations, it was an error of law to discharge plaintiff without ordering a psychiatric examination by a psychiatrist. The “evidence of mental illness” here is assuredly far stronger even if we do not reopen the case, as I have suggested, to admit all the evidence that was placed before the CSC.
It may be added that after “severe impairment,” 70%, the only higher V.A. rating was “complete inadaptability,” 100%. I take it that these are the committable insane, among whom of course plaintiff was not included. The implication of Dr. Overholt’s word “competent” is to exclude plaintiff from that category. If, however, the classification of a psychotic person as “competent” is taken to throw doubt on a CSC finding of “total disability” the result is that the Executive Branch is apparently required to retain on active duty status all psychotic employees except the committable in *316 sane. This notwithstanding the disasters victims of “severe impairment” might cause to themselves, to private persons who are obliged to deal with the Government, or to the Government itself. I see this issue as what this case is really about, and why it has demanded so much cerebral effort from my brothers and myself. Of course, there exist serious social problems as to who is to protect, support, and maintain those whose impairment is 70% or under. I do not think that in the case of Federal employees the Congress intended that the solution should be retention on the active duty payroll. As I see it, the provisions for disability retirement with pension were intended to provide a practical and humane solution. I think they should be construed with that purpose in mind. On the other hand, the Seebach case illustrates that disability retirement is not the means of getting rid of any employee who may be merely contumacious or troublesome.
The reports of Drs. Overholt, Herring and Masten went to Dr. Tish. He took the stand. Except for his ultimate conclusion that the plaintiff was totally disabled, I think the record tells us nothing of what he really made of these reports. He made the extraordinary assertion at one point that he could not conclude from the reports signed by Drs. Masten, Herring and Overholt that they had even seen the plaintiff, although all three said they had done so over their signatures. Although he had himself requested the diagnosis by Dr. Overholt he told our commissioner that it was immaterial and that he concluded nothing from it. As regards the record before him before he requested the Overholt report, he said in one place that he had “no competent psychiatric report.” Yet he told the plaintiff by letter at that time that the CSC felt she was “totally disabled for useful and efficient service as a clerk typist” because of her psychiatric condition. He was not himself a psychiatrist and neither he nor anyone else at CSC headquarters had seen the plaintiff. At another point in his testimony he could not recall whether he had a psychiatric diagnosis before him at that time, but he finally said only that there must have been a “statement” of some kind. In fairness to him, the word “competent” was put in his mouth by cross-examining counsel and whether he meant legally inadmissible or not professionally trained is not at all apparent. Furthermore, during the long course of his testimony about the report from Dr. Overholt and other reports from the Y. A. hospital it does not appear that anyone advised him that when asked to testify about matters covered by or referred to in written records he could consult the records if his memory was weak.
Testimony showed that the plaintiff had brought suit in the Colorado State Courts against Dr. Overholt and the administrative file shows that she had sued Dr. Herring and the other Denver doctors as well. I take judicial notice that any doctor, if he can help it — and he generally can help it — will not give court testimony that will assist the prosecution of a law suit against another doctor. It seems apparent to me that Dr. Tish’s testimony got off into fantasy whenever he was interrogated about the actions or advice of one of the other doctors. The record suggests that they did contribute materially to the final adjudication, but he keeps insisting they did not. The failure to confront him with the records assisted him in this evasion.
If this analysis of the Tish testimony is valid, it indicates to me the court should not make a series of Findings, as it has done, based solely on the Tish testimony. I would have adopted a set of severely curtailed Findings because of my inability to believe anything Dr. Tish said in testimony and the irrelevance of most of it anyway. Dr. Tish was not a party and I see no reason to deem the defense bound by his testimony. At the same time, however, I cannot agree with the dissent, that Dr. Tish prejudged the case or was committed to obtain the plaintiff’s retirement. There *317 is not a scintilla of evidence to show that either Dr. Tish or anyone else in CSC headquarters had ever even heard of the plaintiff until the retirement papers came through. They were in Washington, D.C., she in Denver, Colorado. Most claims of bad faith in Government removal actions, as for example, in Knotts, supra, reflect the animosity that may arise in the course of long personal contact in a Government office. That anybody at CSC headquarters entertained such feelings towards our plaintiff requires postulation of some remarkable circumstance, the nature of which cannot even be guessed. The surmise suggested above provides a much more natural and believable explanation of the Tish testimony.
I agree with the dissent that Dr. Tish’s testimony by itself fails to show that the CSC had evidence before it that plaintiff was disabled. The dissent, however, erroneously assumes the defendant had the burden of proof as to this. If plaintiff’s counsel intended to challenge the Government on the issue, as it is clear he did not, the burden would have been on him. He would have had to show, not just a lack of substantial evidence, but of any. To do this, he would have had to put before the court the entire record that was before the CSC. The record itself, not just testimony about it by a person with a failing memory. He did not do this. Thus, giving the Tish testimony its fullest force for plaintiff it only tends to show that the Overholt, Masten, Herring diagnoses were inadequate. But he did not remember what else he had, and was not allowed to refresh his memory. His statement he had no “competent” evidence must be construed in light of his ultimate admission that he did not remember what he had, but must have had “a statement.” The dissent can only ascertain that the “statement” fails to support the CSC action by looking at it, which is precisely what it says I must not do, because it was not received in evidence. It is, however, as urged above, I think an unwarranted assumption that the papers now in the court files, but not in evidence, constitute with the evidence the entire record that was before the CSC. An incomplete selection of evidence before the CSC cannot possibly prove the CSC had no evidence, or even that it had no substantial evidence. I would have joined the dissent in urging the court to reopen the record and receive everything that was before the CSC, but I understand the dissenters do not desire this.
The dissent says that the CSC Board of Appeals and Review referred the plaintiff’s appeal to Dr. Tish and in effect he was asked to review his own decision, to which the Board applied a perfunctory rubber stamp. At the risk of being tiresome, I will say again that we do not have before us in evidence all of the record that was before the Board, and so we do not know what, if any, corroboration of Dr. Tish’s views they may have had, besides his own statements. It is mere speculation whether their consideration was perfunctory or otherwise.
I do not agree with the excoriation of Dr. Tish delivered by our dissent, but I am not very sorry it has happened because I believe he asked for it. It is to be hoped that the CSC henceforward will impress upon doctors testifying on its behalf on disability issues that their obligation to the court is to tell the complete truth, and this takes precedence over their obligation to shelter other doctors. But I do not think we can indict an entire profession. Until something is done to change the medical mentality our judges and juries must achieve as much justice as they can in cases requiring medical testimony. The circumstances cannot be cured by pretending they do not exist.
As I see it, therefore, plaintiff’s able counsel did not really try to show that the CSC decision lacked support in the evidence, and the case he did put in omitted much that would have been indispensable for a holding along such lines. Evidence that was before the *318 CSC is not before us. Therefore, I object to findings that are relevant only on the theory that we have reviewed the CSC proceedings for evidentiary sufficiency. I object to findings based on Dr. Tish’s testimony. On the record as it now is plaintiff cannot recover. If, however, we suspect that the entire body of evidence before the CSC was insufficient to sustain its determination, we should reopen the record to find out what that evidence was. If we suspect the presence of a “hatchet man” in CSC who committed forgery or fraud to secure plaintiff’s retirement, we should not dispose of this case on speculation: we should make a resolute effort to ascertain who he was and how he operated.