The opinion
SKELTON, Judge
(dissenting):
Although I hesitate, as a rule, to express dissent, I feel bound to do so in this case. After a careful review of the plurality opinion, the briefs of the parties, the transcript, and the exhibits, I unhesitatingly conclude that this case “ ‘exude[s] an odor piscatorial.’ ” Alinco Life Ins. Co. v. United States, 373 F. 2d 336, 341 , 178 Ct.Cl. 813, 823 (1967).
We are authorized to set aside the Civil Service Commission’s (CSC) determination of disability in an involuntary retirement proceeding, or refuse to recognize it as valid, where there has been a substantial departure from important procedural rights or some like error “ ‘going to the heart of the administrative determination.’ ” Gaines v. United States, 158 Ct.Cl. 497, 502 (1962), cert, denied, 371 U.S. 936 , 83 S.Ct. 309 , 9 L. Ed.2d 271 (1962). There does not appear to be a well-defined meaning of the term “like error going to the heart of the administrative determination,” although the courts use the term in many cases. It would seem to include within its meaning any arbitrary and capricious action, or any unconscionable abuse of executive discretion, or any action based on facts outside the evidence, or on illegal or fraudulent evidence. Under any of these circumstances, the term becomes doubly operative when there is no substantial evidence to support the action taken.
Most of these elements are present here. The unauthorized conclusion on Dr. Masten’s report was both illegal and arbitrary, and was enough to void the whole proceeding. If there were any other facts to support the action taken, they were outside the evidence. Consequently, the administrative determination of plaintiff’s alleged disability appears to be an unconscionable abuse of executive discretion, which was arbitrary and capricious and not supported by substantial evidence. The following discussion will demonstrate the reasons for these conclusions of error “going to the heart of the administrative determination.” This is a question of law which is always to be determined by the court, because it involves the correct standard of an administrative decision. If it could be argued that plaintiff did not raise this point, such failure would be wholly immaterial. This is an issue of law and is not the kind of legal issue as to which a litigant can bind the court by his failure to raise or press the point. Our decision in J. A. Jones Constr. Co. v. United States, (February 1968) 390 F.2d 886, 889 , 182 Ct.Cl. 615, 620 , is squarely in point. There we said:
We take this position even though plaintiff did not contend (and indeed specifically disclaimed) that the Government should be held liable for what the Air Force knew but failed to disclose. This is an issue of law and, moreover, not the kind of legal issue as to which a litigant can perhaps bind the court by his failure to raise or press the point. Defendant’s liability for the Air Force’s knowledge (in the circumstances here) seems to us very clear, and we would not be justified in deciding for the defendant— possibly — simply because plaintiff chose to argue less persuasive grounds. * * * [Emphasis supplied.]
See also, John A. Johnson Contracting Corp. v. United States, 132 F.Supp. 698 , 132 Ct.Cl. 645, 656 (1955).
*319 I
Consideration of the Unauthorized Statement “Patient is Totally Disabled” by the CSC Voids the Administrative Determination of Disability
It will be recalled that plaintiff’s employer, the Finance Center, filed an application with the CSC for her disability retirement. The evidence shows that this application was filed because of an alleged report of an alleged agency psychiatrist. (Finding 4.) Neither the contents of the report nor the identity of the psychiatrist was admitted into evidence in this case.
As a result of this application, Dr. Alexander Tish, Chief of the Disability Retirement Section, Medical Division, Civil Service Commission, informed plaintiff by letter that the medical officers of the CSC felt she was “totally disabled for useful and efficient service as a clerk-typist,” and her case would be adjudicated on the basis of the available evidence in her file. In response, plaintiff protested and requested a hearing. It was then that Dr. Tish notified the plaintiff that no decision had been reached in her case and that she would be given a psychiatric examination, but that she would not be given a hearing.
Dr. Tish made arrangements for plaintiff to be examined in Denver, Colorado. He sent an Authorization for Medical Examination Form, CSC Form 3135, to the Veterans Administration Regional Office which was used to authorize medical examinations of the plaintiff for consideration in connection with possible Civil Service disability retirement.
Although Dr. Tish stated that he did not have before him “a competent psychiatric examination” at the time he ordered an examination of the plaintiff (finding 10), he wrote in a space on the form next to the printed words “Disabilities Indicated by Medical Evidence,” the words “Schizophrenic reaction, Paranoid type.” This statement was emphasized by the fact that Dr. Tish also wrote on the form “application filed by the Dept, against wishes of employee,” thereby inferentially indicating that the employee’s mental condition was so bad the department had to take action.
There were no qualifying words on the form such as “alleged” disabilities or disabilities “appear to be” but rather, the persuasive and positive phrase of “Schizophrenic reaction, Paranoid type.” This is all the more astonishing in view of the fact that Dr. Tich is not a psychiatrist; never saw, much less examined, the plaintiff, and did not have before him “a competent psychiatric examination.” These facts are only mentioned to point up the questionable nature of the proceedings at this early stage.
In any event, Dr. Tish did not have sufficient evidence on which to base a determination of total disability, and directions on the form instructed the examining physicians to furnish that information. Form 3135 which he sent to the Chief Medical Officer of the Regional Office of the Veterans Administration in Denver, Colorado, authorizing the examination of the plaintiff, directed that reports be made on the following:
1. General medical examination: -X- -X- -X-
■x- * * ■» * -X-
5. Nervous system: * * * Competent to handle funds or is a guardian necessary?
Neuropsychiatric exam, authorized. [Emphasized portion was handwritten]. [Emphasis supplied.]
Here we see again how plaintiff’s case was being prejudged. This is shown and emphasized by Dr. Tish’s handwritten statement “Neuropsychiatric exam, authorized” immediately after the printed question “Competent to handle funds or is a guardian necessary?” When you consider that this follows the other statements on the form, as stated above, that the “application [for retirement was] filed by the Dept, against wishes of employee” and “Disabilities Indicated by Medical Evidence: Schizophrenic re *320 action, Paranoid type,” it is apparent that, in effect, suggestions were being made to the examining doctors at the V. A. as to what was expected on their reports, all as shown by the handwritten entry on the printed and typed form. The examining doctors would have been blind indeed if they could not understand from all of these instructions the kind of adverse reports that were expected from them.
But there is more — much more. Just above the initials of Dr. Tish at the bottom of Form 3135, appears the following additional instructions:
Please report your findings, diagnosis, and conclusion on the accompanying medical report form, and conclude your report of examination by stating whether the above person IS OR IS NOT totally disabled for useful and efficient service in the position above noted, and whether or not the disabilities found are due to venereal disease, alcoholism, or any vicious habits. Your reasons for a conclusion of “total” disability should be fully stated. [Emphasis supplied.]
These instructions were really those which covered the purpose of the examination, namely, to find out medically whether or not plaintiff was totally disabled for useful and efficient service in her position, and, if so, the reasons why she was totally disabled. When this form with all these notations and instructions reached the V.A. Hospital, a Dr. Masten, who was an M.D. but not a psychiatrist, gave the plaintiff a general medical examination and made his report of same to Dr. Tish on a printed form (CSC Form 3178). He made his entries on the form in his own handwriting, signed it and mailed it to Dr. Tish. He did not say anything on the form concerning whether plaintiff was or was not disabled. He only showed that she had “halitosis.” However, when Dr. Tish examined Form 3178 sent to him by Dr. Masten showing the results of his examination of the plaintiff, the following words were found to be typed on the form under the heading labeled Conclusion: “Patient is totally disabled. Disabilities are not due to venereal disease, alcoholism, or vicious habits.” [Emphasis supplied.] No one knows who typed these words on the form. It was stipulated that they were not put on the form by Dr. Masten or by Dr. Overholt. There is no stipulation or evidence as to what role, if any, other doctors or nurses or other personnel who handled this form may have played with reference to these unauthorized words. We know that Form 3178 was sent to the V.A. Hospital by Dr. Tish at the same time he sent Form 3135.
The plurality opinion approves the commissioner’s holding that “the statement * * * is obviously an arbitrary statement,” but adds the words “if it was not merely a clerical error.” This suggests that it was in fact a clerical error. I cannot agree. It has all of the earmarks of an intentional wrongful act. Of course, a wrongdoing for an ulterior purpose should not be lightly inferred. It should never be assumed when it is due to negligence, inadvertence, or error. But, as here, where the wrongful act was a positive and affirmative one that could have had no other purpose than that of harming the plaintiff on the one and only issue in the case, we cannot lightly pass it off as being an error. Furthermore, there was no evidence whatsoever that it was due to an error. On the other hand, the facts strongly indicate that it could not have been an error. For instance, Form 3135 instructed the examining doctor to not only state whether the plaintiff is or is not totally disabled, but also “whether or not the disabilities found are due to venereal disease, alcoholism or any vicious habits.” The author of the unauthorized disability “conclusion” carefully followed these instructions and wrote on the report in the very language of the instructions the words “disabilities are not due to venereal disease, alcoholism or vicious habits.” All of these facts pointedly indicate that the perpetrator of this arbitrary act carefully read the instructions *321 and deliberately, intentionally, and purposely complied with them by falsifying the report. This was no clerical error. However, our hatchet man, whomever he may have been, did not state reasons for the “total disability” conclusion as required by the form. No doubt he concluded that it would be “gilding the lily” too much for him to conjure up reasons for a total disability which did not exist. As was aptly stated many years ago:
Some circumstantial evidence is very strong as when you find a trout in the milk. Henry D. Thoreau, Journal, November 11, 1850.
It should be pointed out that Form 3178 has the following instructions to the examining doctors at the V.A. Hospital :
The examiner will please make full report on each complaint or disability that is alleged or found on examination. If total disability for useful and efficient service is established, please show when such total disability began. See also instructions on Form 3135. [Emphasis supplied.]
This is in addition to the instructions on Form 3135. We see that on both forms the doctors were instructed to make a full report as to whether the plaintiff was or was not disabled. Disability was the ultimate issue involved. Its determination was the purpose of the examination. When the words “Patient is totally disabled” appeared on the doctor’s report, they covered the heart of the case. There was nothing else to be resolved.
The evidence shows that Dr. Tish assumed the conclusion was in response to his specific directions, and also that he did not know whether Dr. Masten was a psychiatrist at the time he reached his decision that plaintiff was totally disabled. (Finding 24.) Dr. Tish also testified that he did not assume it to be a psychiatric conclusion. The record demonstrates that it was Dr. Tish’s opinion that the conclusion recorded on Dr. Mas-ten’s report was not material to the decision to retire plaintiff. (Finding 24.) Nevertheless the plurality says “despite the fact that the directions * * * may be read as indicating that the conclusion was a material part of the reports of the examining doctors, it is clear that the conclusion * * * played no major role in the determination to retire plaintiff.” (Finding 25.) [Emphasis supplied.] I am at a loss to know what makes it clear, except a possible construction of the self-serving testimony of Dr. Tish given after his determination was made and after he discovered that he was confronted by an anonymous conclusion.
Let us look at the testimony on this point.
By Mr. Twine: [Counsel for defendant]
Q. Doctor, directing your attention to Commissioner’s Exhibit 1-B, there appears thereon the conclusion that the patient is totally disabled. Did that have any effect on your determination as to whether the patient, or employee, was totally disabled ?
A. None whatsoever. As I said at the beginning, we are not bound by any opinions or conclusions drawn by any examiner. We have to make our own conclusions and make the decision on a case. * * * [Tr. 219-20.]
I feel that this testimony given by Dr. Tish actually shows that he was influenced by the conclusion. While he says that the conclusion had no effect whatsoever on his determination, he also says that he is not bound by the conclusions and opinions of the examiners. If the conclusion was truly not considered, I find it hard to believe that Dr. Tish would have stated that he was not bound by the conclusion. To summarize, I think that the determination of Dr. Tish was influenced by the arbitrary statement found on Dr. Masten’s report because of the following circumstances, among others:
1. Dr. Tish felt the statement was in response to his specific directions.
*322 2. He did not know whether Dr. Masten was a psychiatrist.
3. He did not know that it was an unauthorized statement at the time he made his decision.
4. He thought the conclusion had been put on the form by Dr. Mas-ten and was a part of his report.
As was so aptly stated in Greene v. Harris, 11 R.I. 5,17 (1875):
Human nature constitutes a part of the evidence in every case. We more easily believe that a person has done what we should have expected under the circumstances; and we require a greater degree of evidence to satisfy us that a person has done something which would be unnatural or improbable.
Here, human nature more than suggests that the conclusion was considered by Dr. Tish in reaching his decision. To be sure, inference is not certainty, but it is plain enough in these circumstances to justify a finding of fact. As the plurality concedes, if such statement had been accepted by the CSC, thereby influencing the administrative determination, the decision to retire plaintiff would not stand. In my opinion, it must be conclusively presumed that the statement influenced the administrative decision.
Accordingly, the decision is arbitrary and unfounded and cannot stand. It is similar in many respects to the administrative decision in John W. Hankins v. United States, Ct.Cl. No. 20-67, decided March 15, 1968, slip op. pp. 5-6, wherein we said:
* * * An action resting significantly on such improper materials [void efficiency reports], as was the Secretary’s in this case, cannot be permitted to stand. It is, of course, a general principle that an administrative decision, even a discretionary one, grounded in considerations which the tribunal should not take into account, or evidence or materials it should not weigh, is vulnerable as arbitrary and unfounded. Cf. Harmon v. Brucker, 355 U.S. 579 , [ 78 S.Ct. 433 , 2 L.Ed.2d 503 ] (1958); Hamlin v. United States, No. 251-67, [ 391 F.2d 941 ] decided this day; Motto v. United States, supra, note 1, 172 Ct.Cl. 192 , 348 F.2d 523 ; Egan v. United States, supra, 141 Ct.Cl. at 23-25, 158 F.Supp. at 390-391.
II
A Decision Replete With Errors “Going To The Heart of The Administrative Determination” Cannot Stand
The record shows that when the CSC first decided to retire plaintiff, it did not have before it sufficient evidence to support a finding of total disability. Additional evidence in the form of reports from both a psychiatrist and psychologist are alleged to have made up the deficit in proof.
I can dispose of the report of the psychologist, as an aid to the quantum of proof needed to support the determination, rather quickly. Dr. Tish testified that the comments and conclusions of the psychologist “are only of help to the psychiatrist who sees the individual.” His testimony revealed that the psychological diagnosis meant nothing since the psychologist “is not an M.D.” (Tr. 236, finding 26.)
I turn then to the circumstances surrounding the psychiatric examination and report. As I indicated earlier, Dr. Tish did not have sufficient information to make a determination prior to referring the plaintiff to Denver for psychiatric examination. His testimony was that he wanted a certified psychiatrist to examine plaintiff before he would reach a decision. (Tr. 221.)
Dr. Lewis Overholt was the examining psychiatrist who returned the form to Dr. Tish with the following diagnosis:
Schizophrenic reaction, chronic, undifferentiated type, in partial remission. External precipitating stress, and predisposition not determined at this examination. Impairment, severe. Competent.
*323 It is manifest from the evidence that according to Dr. Tish, Dr. Overholt’s diagnosis was immaterial to his evaluation of the claim because the Medical Division looks behind the diagnosis to the substance of the psychiatric report and may agree or disagree with the diagnosis made. (Finding 26.)
This testimony is particularly frightening since the opinions of the only other doctors have already been discarded as “immaterial.” If this psychiatrist’s opinion is likewise rejected, then there is no evidence, substantial or otherwise, on which an adverse decision can rest.
Dr. Tish’s testimony on this point is both puzzling and incredible. Before relating it, let me reiterate that this was the report Dr. Tish was awaiting before a determination would be made.
After admitting that there are various kinds of schizophrenia, some disabling and some not, his testimony in response to questioning continues:
Q. What does the word “competent” mean to you, Doctor, in that report from Dr. Overholt?
A. It only means that she is competent to handle, to function. That is all we are interested in from the standpoint of the annuity funds that we pay her. [Tr. 232.]
After previously admitting (Tr. 230), that he wanted a statement concerning her total disability, Dr. Tish then testified:
Q. Were you asking the psychiatrist, in your direction here, to make any determination as to whether she was capable or whether she was disabled to handle her job as a clerk-typist?
A. That is not his business. We don’t ask him that question. [Tr. 232.]
Utterly amazing to me, however, is the following excerpt from the transcript with reference to Dr. Tish’s testimony concerning Dr. Overholt’s diagnosis :
Q. What does pre-disposition not determined at this examination mean?
A. I don’t know what he means b;y that.
Q. Look at the Overholt report and tell me what that means to you?
A. Pre-disposition, we are not interested in that determination, anyway. So it is irrelevant, as far as disability retirement is concerned.
******
Q. Now, from the diagnosis made by Dr. Overholt, did you conclude that he found Mrs. McGlasson to be totally disabled from performing services as a clerk-typist?
A. I did not conclude from the diagnosis anything. In the first place, a diagnosis is immaterial in evaluating a claim. It does not make any difference what kind of label it is. Let’s get this straight.
Coming to the question of diagnosis that you are pinning me down on, I would like to elaborate because I think it is important. It does not make any difference what label a psychiatrist puts upon a patient. We are only concerned whether the individual is or is not suffering from a nervous disorder of such degree that he or she is unable to function in that job. That is all we are concerned with. We are not concerned in the label that he puts on her. He can call her anything he wants. The label is immaterial.
In fact, we often disagree with the label that some of the psychiatrists put on their patients. Sometimes they are mis-labeled, so, therefore, a label is not a criterion for an evaluation of a mental or nervous disorder.
*324 Q. What is important, Doctor, is whether or not the patent is disabled on the basis of what they have, is that correct?
A. Yes. The way we do that is, or the way he does it, is from his observation of the patient. This psychiatrist interviews a patient, and he gives us that information in the gist of his report. [Tr. 235-37.]
The following extract from the transcript also illustrates that Dr. Tish’s testimony was guarded and positively inconsistent :
Q. Based on this folder, you concluded, did you not, that Dr. Masten, Dr. Herring and Dr. Overholt had all seen the plaintiff, Mrs. McGlasson, in this case, is that correct ?
A. No, I did not conclude that at all.
Q. You did not conclude that they had seen her?
A. No.
Q. Whom did you conclude, from this examination, Doctor, had seen the plaintiff in this case ?
A. I would say that all I can tell from this is the Veterans Administration carried out our order to examine the individual and report their findings. These are the findings they submitted to me.
Q. You made no conclusion as to who saw her?
A. No. We are not interested in who saw her, who saw the individual, so long as she was seen by a qualified psychiatrist. [Tr. 228-29.]
Dr. Tish has not only contradicted himself numerous times, but also has discarded, as irrelevant, a portion of the diagnosis he can not even understand. For all that appears from the record, it could have meant that plaintiff could perform her clerical duties. Dr. Tish also explains away a nonexistent “label” since Dr. Oyerholt never reached a conclusion with respect to plaintiff’s total disability.
A reading of the diagnosis alone, even if Dr. Tish did consider it material, would not support a determination of total disability. In the first place, the patient is “competent” and in a state of “partial remission,” which factors combat adverse indications in the diagnosis. Even this is not the full story, because the “gist” of Dr. Overholt’s report does not sustain a determination of total disability.
Included in Dr. Overholt’s report is the following:
The description of the external precipitating stress, the predisposing factors and the adjective description of the estimated resultant incapacity recorded in this examination, are for fuller psychiatric study and treatment purposes. They are not determinative as a basis for compensation or pension purposes. The adjudicating agencies are responsible for the evaluation of all evidence available in determining entitlement to compensation or pension. [Emphasis supplied.] [Finding 16.]
This portion of the report indicates to me that the later determination that was made by Dr. Tish was left open by Dr. Overholt, and future psychiatric examinations were contemplated, at least by Dr. Overholt.
I do not feel that the plaintiff’s objections are merely complaints that the Commission “did not follow every jot and tittle of the applicable procedures * * * with any showing that the alleged departures were substantial or important.” Gaines v. United States, supra.
Furthermore, I do not believe that her objections fly in the face of “or disregard the principle that a court cannot substitute its judgment on medical evi *325 dence for the determination of the Commission.” Ibid. The word determination is injected throughout the plurality opinion. “One of the usual meanings of the word ‘determine’ is: * * * to come to a decision; * * Gooch Milling & Elevator Co. v. Commissioner of Internal Revenue, 133 F.2d 131, 137 (8th Cir.1943), reversed on other grounds, 320 U.S. 418 , 64 S.Ct. 184 , 88 L.Ed. 139 . See Shields v. United States, 375 F.2d 457, 460 (6th Cir.1967). We have said that the administrative decision must have been “conscientiously made.” Cooper v. United States, 178 Ct.Cl. 277, 288 (1967). Certainly, there can be no disagreement that a decision is not “conscientiously made” where all the relevant medical evidence is labeled “immaterial” by the decision maker. In the circumstances of this case, the alleged expert opinion of Dr. Tish that plaintiff was totally disabled is nothing more than an ordinary guess wearing evening clothes. Dr. Tish is not a psychiatrist, he never examined the plaintiff, and his only contact with her was by mail. No competent psychiatrist except Dr. Overholt examined the plaintiff and he did not find her to be disabled, but found her to be competent. No doctor, psychiatrist, or psychologist who examined the plaintiff ever found or stated that she was disabled from doing her work — not even to the slightest degree. There is simply no evidence that warranted or supported the administrative decision of total disability.
Notwithstanding the lack of any medical evidence of plaintiff’s disability, Dr. Tish and a Dr. Mercer, neither of whom was a psychiatrist, rendered a decision that the plaintiff was “totally disabled for useful and efficient service in the position occupied by her” because of a “nervous disorder * * * schizophrenia.” Dr. Tish was the Chief of the Disability Retirement Section and Dr. Mercer worked under him. It can be assumed as a practical matter that Dr. Mercer would not likely take a position different from that of the chief of his section, especially in view of Dr. Tish’s heavy involvement in the case. This is made more obvious by the fact that Dr. Mercer did not testify at the trial.
It is a universal rule of evidence in the trial of a case that a doctor who has never seen nor examined a patient is not allowed to give a professional opinion as to whether the patient is or is not disabled. But here we have the extraordinary situation of allowing Dr. Tish and Dr. Mercer, who had never seen or examined the plaintiff, to give their opinion that she was “totally disabled because of a nervous disorder.” The error is compounded when they are allowed to give their opinion on mental disability because of a nervous disorder, when they are not psychiatrists and had never seen the plaintiff. The error is doubly compounded when these doctors are allowed, under these circumstances, to make the final decision on the ultimate issue in the case, namely, the alleged disability of the plaintiff. Furthermore, this decision was made without any medical report of disability by any doctor who had examined her, and on the other hand, in the face of Dr. Masten’s report that she only had “halitosis” and Dr. Overholt’s report that she was “competent.”
The plaintiff appealed the decision and it was submitted to Dr. Tish for consideration. He reviewed the file and came up with the same decision he had made before. As the plaintiff so aptly phrased it, “* * * this was not a review at all, but simply Dr. Tish reviewing Dr. Tish.” While this procedure may have been in accordance with the regulations, it occurs to me to have been improper and unjust under the circumstances.
The final review by the Board of Appeals and Review appears to have been nothing more than the perfunctory rubber-stamping of Dr. Tish’s decision made below.
I conclude that there was no substantial evidence to support a determination that plaintiff was totally disabled, and the decision was arbitrary and capri *326 cious and an unconscionable abuse of executive discretion.
Ill
Conclusion
The plaintiff asked for a hearing in this case, but this was refused by Dr. Tish, who purported to act for the Commission. (Finding 5.) It appears that the plaintiff was not entitled to a hearing as a matter of right under the rules and regulations of the CSC then in force. However, the denial of a hearing, when combined with the other “goings on” in this case, emphasizes the error and injustice which might have been avoided if the plaintiff had been given the right to present her side of the case at a fair and impartial hearing before an unbiased and unprejudiced commission. Any citizen is entitled to this much and should be granted no less.
We have a situation in this case where the Disability Retirement Section of the CSC was the accuser, the prosecutor, the judge and jury, and, perhaps, the executioner. The plaintiff did not have a ghost of a chance. She did not even have an opportunity to defend herself or to present her side of the case. She was disposed of utterly and completely under the name and guise of a CSC administrative proceeding as if that proceeding breathed legitimacy and correctness into the action taken. It reminds me of a very apt statement made in another case, “The most odious of all * * * [decisions] are those which mask as justice.” Krulewitch v. United States, 336 U.S. 440, 458 , 69 S.Ct. 716, 725 , 93 L.Ed. 790 (1949) (concurring opinion Jackson, J.). If this case is an example of justice in an administrative proceeding of the CSC, it would appear that it needs to be completely revamped. 1 No employee of the government should be subjected to the treatment this plaintiff received. The following phrase is pertinent:
If however, the Commission is sustained in this case, and, accordingly behaves similarly in future cases, then its conduct will indeed be a mystery. Its so-called * * * [“determinations”] will then be acceptable, no matter how contrived. In that event, it would be desirable to abandon the word * * * [“determination”]— since that word misleadingly connotes some moderately rational judgment— and to substitute some neutral term, devoid of misleading associations, such as * * * “woosh-woosh.” The pertinent doctrine would then be this: “When the * * * [CSC] has ceremonially woosh-wooshed, judicial scrutiny is barred.” * * * Old Colony Bondholders v. N. Y., N. H. & H. R. Co., 161 F.2d 413, 450 (2d Cir.1947) (Frank, J. dissenting opinion), cert, denied, 331 U.S. 859 , 67 S.Ct. 1755 , 91 L.Ed. 1866 .
In my opinion, the decision of the CSC that plaintiff was totally disabled from performing the duties of her position was arbitrary and capricious and was not supported by substantial evidence and was an unconscionable abuse of executive discretion. We have held that a court can set aside the Commission’s (CSC) determination or refuse to recognize it as valid where there has been 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.’ ” See Gaines v. United States, supra. I think these principles apply here, and that the required error is abundantly shown.
In response to Judge Nichols’ concurring opinion, it is readily apparent that much of it is based on alleged facts that are outside the evidence and are, in *327 some instances, speculation, a partial list of which follows:
1. A letter sent by the Air Force to the CSC requesting plaintiff’s involuntary retirement, which while listing enclosures which are not now attached, is presumed to have included “an account of plaintiff’s behavior on the job.” (Not in evidence.)
2. That plaintiff requested permission to consult a Dr. J. P. Hilton of Denver who furnished a diagnosis of schizophrenic reaction, paranoid in type, in a letter marked “Personal and Confidential” to a Dr. Albers of the Finance Center. (Not in evidence.)
3. That the CSC would have acted on the alleged 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.” (Not in evidence and speculation.)
4. The use of the Hilton diagnosis might have exposed him to the charge that he had violated his Aesculapian oath causing professional embarrassment. (Speculation.)
5. The statement that it seems obvious that the mysterious conclusion is a clerical error “such as might occur in any large office where statements have to be typed repetitively on numerous documents.” (Speculation.)
6. The plaintiff sued in the state courts all the Denver doctors who had any connection with her retirement, including a Dr. Hilton and Dr. Overholt. (Not in evidence.)
7. The alleged ethics of doctors not to give court testimony, although truthful, that will assist the prosecution of a law suit against another doctor. (Not in evidence and speculation.)
8. That Dr. Tish testified in such a manner as to protect the other doctors whom plaintiff had sued. (Not in evidence and speculation.)
Indeed, the concurring opinion admits that much of the above alleged evidence relied upon was either offered and excluded by the commissioner, or else was not even offered.
Most of these alleged facts are hearsay. Yet they constitute the foundation for the concurring opinion. To require the plaintiff to overcome suppositions and allegations like these, would be a heavy, unfair, and improper burden indeed for her to bear. I do not believe that we are empowered to indulge in such speculations. We do not make the facts, but take them as we find them. As John Adams said when reminding a jury of their responsibility to the facts:
Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence * * *. Williamson, John Adams, Counsellor of Courage, 54 A.B.A.J. 148,150 (1968).
The concurring opinion says that Dr. Tish’s testimony “got off into fantasy,” and points out its “inability to believe anything Dr. Tish said * * Yet, that opinion, which discredits Dr. Tish as a witness, would, in effect, shelter his unbelievable testimony under the alleged shield of professional loyalty. In effect, the concurring opinion agrees with me that Dr. Tish’s testimony should not be considered in this case. For reasons which follow, the plaintiff would easily prevail if the evidence of Dr. Tish is excluded.
Two medical officers in the Disability Retirement Section must concur in deciding a case of involuntary retirement after each doctor separately reviews the record. Dr. Tish testified that he and a Dr. Mercer were the two doctors who made the review and approved the application to retire plaintiff as being totally disabled. Dr. Mercer did not testify at the trial. So, if you take Dr. Tish out of the case as suggested, the retirement of plaintiff is illegal, because you do not have any evidence that two doctors reviewed the case as required by the rules. In fact, you do not have evidence that a single doctor in the section *328 reviewed the case, because Dr. Mercer would be out of the case too, since the only proof of what he did was what Dr. Tish testified to, as Dr. Mercer did not appear.
Furthermore, when plaintiff appealed, her appeal was submitted to Dr. Tish for further review “pursuant to the usual procedure.” Dr. Tish “reviewed Dr. Tish” and refused to change his prior decision. If Dr. Tish is out of the case, this procedure is violated and there would be no proper review of plaintiff’s appeal.
Without Dr. Tish, there would be no interpretation of Dr. Overholt’s diagnosis of plaintiff, nor any definition of the meaning of the word “competent” in the diagnosis. We would be free to define it in the popular sense as meaning the plaintiff was “able” (as distinguished from disabled), as I indicated is the correct meaning of the word.
The government had no case even with Dr. Tish participating, but when you take him out, the government is left destitute, as he made all of the vital decisions in the case against the plaintiff.
In some respects, the Overholt diagnosis is favorable to plaintiff, and certainly does not indicate directly, indirectly, or by innuendo that plaintiff is totally disabled. In any event, it was not considered as being material to the case.
So, with Dr. Tish being out of the case, and with Dr. Overholt’s report showing nothing to indicate plaintiff was totally disabled, and with Dr. Masten finding that the only thing wrong with the plaintiff was halitosis, I reach the inescapable conclusion that there was not only no substantial evidence to support the decision of the CSC, but no evidence at all.
It is my view that this court, with the reputation it has, should not let the unsavory activities which occurred here go unnoticed. We should be as quick to strike down the unauthorized and arbitrary entries on the forms here as we were to condemn the forgeries of the documents in the Hankins case, supra, or in any other case where they occur. Otherwise, we do not uphold the tradition of this court and justice does indeed become a “blind lady.”
Finally, I must comment briefly on the inapplicability of the V.A. General Rating Formula in the Davis case, supra, referred to in the concurring opinion. The opinion fails to disclose that such ratings are in a code that applies only to military personnel and has no bearing on civilian personnel cases. There is no code, rating, standard or regulation whatever governing mental disability cases involving civilian personnel within the jurisdiction of the CSC. Civilian employes are either able to do their work or else they are totally disabled from doing so. It is everything or nothing. There is no sliding scale or in between status. Furthermore, if the code could be considered, any analogy is incomplete without mentioning all factors in the diagnosis. Only “severe impairment” is mentioned in the concurring opinion, while plaintiff’s diagnosis included, among other things, “in partial remission.” If the concurring opinion insists on discussing the military rating formula, it should mention that remission factors can affect the individual’s disability rating significantly. For instance, in the code, full remission on a scale of 100 percent means 0 percent disability. Partial remission, as in our case, could mean one percent disability or ten percent disability, or any other percent less than total disability. Anything less than total disability under the CSC system entitles plaintiff to retain her job. There was no evidence that she was totally disabled.
Accordingly, I would enter judgment for the plaintiff as prayed for in her petition, and would remand the case to the commissioner to determine the amount of recovery under Rule 47(c) (2).
DURFEE, Judge, joins in the foregoing dissenting opinion.
. This opinion was prepared prior to the promulgation by the CS,C of its new disability retirement regulations to be effecfive July 1, 1968. See 33 F.Reg. 7715-17 (May 25, 1968).