Jane Doe v. Robert E. Hampton, Individually and as Chairman, U. S. Civil Service Commission

SPOTTSWOOD W. ROBINSON, III, Circuit Judge,

dissenting:

My colleagues do not dispute the oft-stated principle that an administrative agency is bound by its own regulations. 1 It also is common ground among us that “[ajgency action that substantially and prejudicially violates the agency’s 'rules cannot stand.” 2 We are agreed, too, that the Civil Service Commission erred in resorting adjudicatively to Dr. Eck’s conclusions on the significance of appellant’s mental condition to her performance on the job and the safety of herself and her coworkers. 3 But, although I concur in much of Judge Tamm’s scholarly opinion for the court, I am unable to accept the view that the Commission’s blunder in that regard did not prejudice appellant. I would, therefore, remand this case, not just for an exploration into the legal and practical feasibility of appellant’s reassignment within the employing agency, but more broadly for further proceedings inquiring as to whether she should be reinstated to her former position. 4

*285 i

The court finds, correctly in my view, that the Civil Service Commission relied on Dr. Eck’s opinion in violation of pertinent procedural rules, by which the Commission is firmly bound. 5 Indeed, this circumvention of the hearing process, and of its attendant opportunities to review and comment on the evidence and to cross-examine witnesses, 6 raises serious questions of procedural due process. 7 Where I must differ with the court, however, is as to whether the error was nonprejudicial, particularly on the court’s theory that as evidence Dr. Eek’s statement was “merely cumulative.” 8

Neither the Commission nor the court attempts to demonstrate that appellant could not possibly have successfully attacked or at least mitigated Dr. Eck’s opinion had she been given the chance to do so. 9 The cross-examination of Dr. Valle by appellant’s counsel, and the introduction of an article from a psychiatric journal that undercut the employing agency’s under *286 standing of Dr. Valle’s conclusions, indicate that an opportunity to challenge Dr. Eck’s “impression” would not necessarily have been futile. 10 Implicitly acknowledging this, the court adopts the analytical technique of attempting to determine whether the Commission would have reached the same result had it not solicited and received Dr. Eck’s opinion.

Though, indubitably, some procedural improprieties can readily and truly be labeled “harmless,” 11 only in relatively clear cases should we undertake to do so. 12 Generally, agency action makes no claim on judicial affirmance while the consequences of material error in the agency’s findings remain a matter of substantial doubt. 13 Additionally, as we have had occasion to admonish, “[t]he doctrine [of harmless error] must be used gingerly, if at all, when basic procedural rights are at stake.” 14 To be sure, as the court aptly points out, we must focus on the methodology of agency decisionmaking and not substitute our own decisionmaking skills for those of the agency. 15 And the corollary of that principle is that when a procedural mistake is uncovered we normally should return the litigation — corrected to remove the defect — to the administrative process rather than attempt to decide the merits ourselves. 16 When a procedural reg *287 ulation ignored by the agency is designed to produce a fairer and more accurate decision, we should — precisely for that reason — hesitate to assume that the defective procedure equally achieved that goal. To be balanced against agency error, of course, is the desirability of avoiding unnecessary expenditures of administrative resources and efforts. But this consideration weighs heavily only if it is clear that the outcome in the agency would be the same the second time around. 17

II

This, by my lights, is not a clear case. Dr. Eck’s opinion aside, evidence of appellant’s unfitness for continued duty at her assigned post is by no means overwhelming, even when measured by the test of arbitrariness and capriciousness applied by the court. 18 Although that standard of review is less demanding than the substantial-evidence test utilized in this circuit and others in reviewing agency adjudicative hearings during at least the last decade, 19 1 complete *288 ly agree with my colleagues 20 that judicial descriptions of the review process in cases such as this are not nearly as important as what the court actually does. 21 What should be kept in mind, regardless of the standard we purport to use, is that while we will not substitute our view of the evidence for that of the agency, the evidence upon which the agency relies must be such that it has, to use the court’s phrase, exercised “an informed discretion.” 22

Unlike my colleagues, I am not at all sure that the evidence in this case supports an informed exercise of discretion in the direction chosen by the employing agency and later by the Commission. The court feels that there was a nexus between Dr. Valle’s medical conclusions and “observed deficiencies in work performance or employee behavior.” 23 The court seems to assume, moreover, that since appellant was sent for examination by Dr. Valle because of her “work performance or employee behavior,” his conclusions were causally related to that behavior. 24 Yet the court substantially undercuts Dr. Valle’s diagnosis — -rightly, I think — noting “serious doubts about the utility of a single-visit psychiatric evaluation of only 45-minutes duration.” 25 Later the court declares that Dr. Valle’s “diagnostic impression” was not

an adequate basis for an agency to assess either the feasibility of immediate reassignment or the likely value of placing the employee on leave-without-pay status. . . . Such intractable psychiat *289 ric terminology can be of little assistance to the employing agency in evaluating the actual extent of and prognosis for an employee’s psychiatric disability. 26

I agree unhesitatingly that Dr. Valle’s examination is too dubious a ground for an administrative finding that appellant could not feasibly have been reassigned. But what I cannot understand is how the same examination, with its implicit suggestion of nexus, sufficiently underpins a decision that appellant was unfit for the job she then held.

In any event, the evidence of unfitness was not exceptionally strong, and, against that backdrop, I am far from convinced that the Commission’s utilization of Dr. Eck’s opinion was harmless. In the absence of more compelling indications one way or the other, any conclusion as to the Commission’s probable outcome had it not entertained that opinion strikes me as a largely uninformed guess. Nothing in the decision of the Appeals Examining Office indicates that it requested the opinion simply “out of an abundance of caution”; 27 it seems equally or more likely that the agency was unsure of the correct result and was seeking further guidance. 28 The inquiry addressed to Dr. Eck was the most critical question in the case at that time; as the court notes, his response “went to the essence of the validity of the agency’s decision.” 29 Furthermore, the response added a new dimension to the problem — that suicide and homicide were potential dangers if appellant remained on the job 30 — a consideration which, though not expressly adverted to by the Commission, is undeniably of a nature well calculated to emotionally sway one undecided on the issue before him.

In short, I am unable to shed my very substantial doubt as to whether the Commission would have reached the same result but for its erroneous treatment of Dr. Eck’s medical opinion. 31 I would not try to read the administrative decisionmaker’s mind when, as here, the record does not clearly indicate what the decision would have been absent the error. Accordingly, I would remand to the agency and allow it to reconsider the matter after having provided appellant with the procedural benefits she was previously denied.

. See e. g., Vitarelli v. Seaton, 359 U.S. 535, 539 , 79 S.Ct. 968, 972 , 3 L.Ed.2d 1012, 1016-1017 (1959); Service v. Dulles, 354 U.S. 363 , 77 S.Ct. 1152 , 1 L.Ed.2d 1403 (1957); Gardner v. FCC, 174 U.S.App.D.C. 234, 237 , 530 F.2d 1086, 1089 (1976); Nader v. Nuclear Regulatory Comm’n, 168 U.S.App.D.C. 255 , 261, 513 F.2d 1045 , 1051 (1975).

. Bonita, Inc. v. Wirtz, 125 U.S.App.D.C. 163 , 167 n.4, 369 F.2d 208 , 212 n.4 (1966), quoting Sangamon Valley Television Corp. v. United States, 106 U.S.App.D.C. 30, 33 , 269 F.2d 221, 224 (1959); accord, Union of Concerned Scientists v. AEC, 163 U.S.App.D.C. 64, 77 , 499 F.2d 1069, 1082 (1974) (“the well-settled rule [is] that an agency’s failure to follow its own regulations is fatal to the deviant action”).

. Majority Opinion (Maj.Op.) Part III(B).

. As I view the case, as many as three steps may be needed. Each would originate before the Commission rather than the District Court. First, appellant should be provided an opportunity to combat Dr. Eck’s opinion, in any event through cross-examination and, if desired, through presentation of additional evidence, especially on the question — interjected for the first time by Dr. Eck — whether appellant’s mental condition renders her dangerous to co *285 workers. Second, assuming that appellant makes some substantial responsive showing, the Commission should reconsider appellant’s removal from her former position at the Bureau of Engraving and Printing, and determine whether she should be reinstated therein. Third, if the latter course is not pursued, the Commission should proceed to the issue of the Bureau’s responsibility to reassign her as one whose psychiatric problem interferes with the performance of the duties previously entrusted to her. If the Commission should decide that the employing agency is not required to seek reassignment, or that appellant is not reassign-able, appellant would then have the opportunity to show in the District Court that the relevant Federal Personnel Manual provisions are binding and require her reassignment. Although the question of the binding effect of the provisions — involving determinations of whether the “rules” were of public knowledge, were intended for the benefit of federal employees as well as employers, and were intended as mandatory by the agency, see American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 538-539 , 90 S.Ct. 1288, 1292-1293 , 25 L.Ed.2d 547, 552-553 (1970) (ICC not bound by rules promulgated primarily for Commission’s assistance and not to confer procedural benefits on individuals); Yellin v. United States, 374 U.S. 109, 114-117 , 83 S.Ct. 1828, 1832-1834 , 10 L.Ed.2d 778, 783-785 (1963) (committee bound by its rules where “throughout the rules, the dominant theme is definition of the witness’ rights and privileges”); United States v. Leah-ey, 434 F.2d 7, 11 (1st Cir.1970) (two intersecting factors are “a general guideline, deliberately devised, aiming at accomplishing uniform conduct of officials” and “an equally deliberate public announcement”); see also Morton v. Ruiz, 415 U.S. 199, 235 , 94 S.Ct. 1055, 1074 , 39 L.Ed.2d 270, 294 (1974) (Bureau of Indian Affairs is bound by its “Manual” even though “the internal procedures are possibly more rigorous than otherwise would by required”) — is at least as appropriate for determination in the first instance by the District Court as by the Commission, it would be more expedient for the Commission to consider the issue of reassignment along with the other issues in which I believe remand to the Commission is essential. As the court points out, if the regulations are binding, it is the Commission that should initially determine whether the employing agency properly failed to reassign Ms. Doe. It thus seems sensible to allow the Commission a chance to determine the binding effect and application of the Manual in the event that its analysis of the other issues leads it to conclude that appellant was unfit for her previous job.

. Maj.Op., 184 U.S.App.D.C. at-& nn.9-10, 566 F.2d at 270 & nn.9-10.

. See 5 C.F.R. § 771.210 (1974). The regulations allow the parties to cross-examine the witnesses. Id. § 771.210(f). See also 2 Recommendations and Reports of the Administrative Conference of the United States 77 (Recommendation 72-8) (“[ejxpert professional advice on the facts or disposition of a case . should only be received on the record, subject to the right of both parties to respond”).

. Ralpho v. Bell, 186 U.S.App.D.C.-at-, 569 F.2d 607 at 628 (1977) (“[a]n opportunity to meet and rebut evidence utilized by an administrative agency has long been regarded as a primary requisite of due process”). In Ralpho , we described two earlier Supreme Court opinions as holding that “reliance on extra-record factual evidence without opportunity to the parties to inspect and address [is] a denial of due process.” Id., 186 U.S.App.D.C. at-n.160, 569 F.2d at 628 n.160 (discussing Morgan v. United States, 304 U.S. 1 , 58 S.Ct. 773 , 82 L.Ed. 1129 (1938) and Ohio Bell Tel. Co. v. Public Utils. Comm’n, 301 U.S. 292 , 57 S.Ct. 724 , 81 L.Ed. 1093 (1937)).

. Maj.Op., 184 U.S.App.D.C. at - & n.29, 566 F.2d at 277 & n.29.

. Compare Chrysler Corp. v. FTC, No. 76-1586, 182 U.S.App.D.C. 359, 364-365 , 561 F.2d 357, 362-363 (1977) (no prejudice where improperly considered supplemental evidence was indisputably accurate).

. See Transcript of Hearing Before Appeals Examiner, Bureau of Engraving and Printing at 15-56, 66-76 (Sept. 11, 1973). Nor is this a case in which appellant was given a post-hearing opportunity to review and comment upon the evidence in question. Thus, we are not called upon to determine whether such' an opportunity would render the error harmless and comport with the regulations and the Constitution.

. See, e. g., Kerner v. Celebrezze, 340 F.2d 736, 740 (2d Cir.), cert. denied, 382 U.S. 861 , 86 S.Ct. 121 , 15 L.Ed.2d 99 (1965).

. See cases cited infra notes 13-14.

. Section 10(e) of the Administrative Procedure Act specifies that on judicial review of agency action “due account shall be taken of the rule of prejudical error.” 5 U.S.C. § 706 (1970). We have consistently measured the prejudicial effect of erroneous administrative findings and inferences by ascertaining whether there is “substantial doubt” that the ultimate finding would nonetheless have been the same, Tashof v. FTC, 141 U.S.App.D.C. 274, 280 , 437 F.2d 707, 713 (1970); NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 139 (1st Cir.), cert. denied, 346 U.S. 887 , 74 S.Ct. 139 , 98 L.Ed. 391 (1953); Denton v. Secretary of Air Force, 483 F.2d 21, 28 (9th Cir.1973), cert. denied, 414 U.S. 1146 , 94 S.Ct. 900 , 39 L.Ed.2d 102 (1974); see also Fairmont Foods Co. v. Hardin, 143 U.S.App.D.C. 40 , 48, 442 F.2d 762, 770 (1971); Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 412 , 379 F.2d 453, 466 (1967), a yardstick approximating that traditionally utilized on appeals from lower court civil proceedings. See Boston & A. R. R. v. O’Reilly, 158 U.S. 334, 337 , 15 S.Ct. 830, 831 , 39 L.Ed. 1006, 1008 (1895) (likelihood of same result must be beyond doubt); Chichester Chem. Co. v. United States, 60 App.D.C. 134, 137 , 49 F.2d 516, 519 (1931) (same result in absence of error must be certain). Because “the rule of prejudicial error” has essentially the same function on review of either type of litigation, compare Kerner v. Celebrezze, supra note 11 , 340 F.2d at 736 ; see generally, Braniff Airways, Inc. v. CAB, supra, 126 U.S.App.D.C. at 412-413 , 379 F.2d at 465-466 , I perceive no good reason why the impact of general administrative error of any kind should not be tested by the same “substantial-doubt” standard. Of course, error involving the use of improper procedures calls forth even more rigorous application of the standard for the reasons I have discussed in text. See text infra at notes 15-17; Braniff Airways, Inc. v. CAB, supra, 126 U.S.App.D.C. at 412-413 , 379 F.2d at 465—466. Indeed, some administrative procedures might be so fundamental to the achievement of a fair and accurate decision that a denial of or defect in the procedure will always give rise to a substantial doubt. See National Capital Airlines, Inc. v. CAB, 136 U.S. App.D.C. 86, 94-95 n.12, 419 F.2d 668 , 676-677 n.12 (1969), cert. denied, 398 U.S. 908 , 90 S.Ct. 1693 , 26 L.Ed.2d 68 (1970). §ee also United States v. Heffner, 420 F.2d 809, 813 (4th Cir. 1970).

. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383 , 393 n.16, 444 F.2d 841 , 851 n.16 (1970), cert. denied, 403 U.S. 923 , 91 S.Ct. 2233 , 29 L.Ed.2d 701 (1971) (citing Yiu Fong Cheung v. INS, 135 U.S.App.D.C. 244, 248 , 418 F.2d 460, 464 (1969)).

. Maj.Op., 184 U.S.App.D.C. at-& nn.13-14, 566 F.2d at 271 & nn.13-14.

. See Massachusetts Trustees of E. Gas & Fuel Assocs. v. United States, 377 U.S. 235, 247-248 , 84 S.Ct. 1236, 1244-1245 , 12 L.Ed.2d 268, 277 (1964) (remand more appropriate when improper procedure employed or relevant criteria misemployed than when other type of administrative mistake made); cf. Powhatan Mining Co. v. Ickes, 118 F.2d 105, 110 (6th *287 Cir.1941) (“a reviewing court cannot know what a full hearing might have shown and for that reason is not free to speculate as to the prejudice involved”).

. See note 13 supra and accompanying text.

. See Maj.Op., 184 U.S.App.D.C. at - & n.15, 566 F.2d at 271-272 & n.15.

. E. g., Efthemes v. Comm’rs, 168 U.S.App.D.C. 286, 288 , 514 F.2d 182, 184 (1975); Polcover v. Secretary of Treasury, 155 U.S.App.D.C. 338, 346 , 477 F.2d 1223, 1231 , cert. denied, 414 U.S. 1001 , 94 S.Ct. 356 , 38 L.Ed.2d 237 (1973); Moore v. Administrator, 155 U.S.App. D.C. 14, 17, 475 F.2d 1283, 1286 (1973); Dabney v. Freeman, 123 U.S.App.D.C. 166 , 168, 358 F.2d 533, 535 (1965); Pence v. Tobriner, 121 U.S.App.D.C. 282 , 283, 349 F.2d 717, 718 (1965); Charlton v. United States, 412 F.2d 390 , 393 (3d Cir.1969), after remand, 462 F.2d 59 (3d Cir.1972), cert. denied, 409 U.S. 1027 , 93 S.Ct. 460 , 34 L.Ed.2d 321 (1972); McCourt v. Hampton, 514 F.2d 1365, 1368 (4th Cir.1975); Harvey v. Nunlist, 499 F.2d 335, 336 (5th Cir. 1974); Alsbury v. United States Postal Serv., 530 F.2d 852, 854 (9th Cir.), cert. denied, 429 U.S. 828 , 97 S.Ct. 85 , 50 L.Ed.2d 91 (1976); Vigil v. Post Office Dep’t, 406 F.2d 921, 924 (10th Cir.1969); Peters v. United States, 408 F.2d 719, 724 , 187 Ct.Cl. 63 (1969); contra, Wroblaski v. Hampton, 528 F.2d 852, 853 (7th Cir. 1976); cf. Twiggs v. SBA, 541 F.2d 150, 152-153 (3d Cir. 1976) ( Charlton, supra, limited to discharges because it “represents an atypical application of the ‘substantial evidence’ standard”).

As Professor Davis has observed,

[i]n summary, the law of review of employee dismissal cases has gradually moved from almost complete unreviewability early in the century to a rather complete review in accordance with the substantial evidence rule. Language against the use of the substantial evidence rule still persists in a good many opinions but apparently the most recent holding against it is Brown v. Zuckert, 349 F.2d 461 (7th Cir.1965), certiorari denied, 382 U.S. 998 , 86 S.Ct. 588 , 15 L.Ed.2d 486 (1966). The position of the Brown case seems destined to give way.

K. Davis, Administrative Law Treatise § 29.07, at 1011 (1970 Supp.). The Commission’s brief recognizes that, at least in this circuit, judicial review in cases such as this calls for a decision as to whether the challenged action is supported by substantial evidence. Brief for Ap-pellees at 11.

The “common law” of judicial review of administrative action indicates that where “the proper procedure is quasi-adjudicative[,] . the proper standard of review is substantial evidence on the record as a whole.” See Safir v. Kreps, 179 U.S.App.D.C. 261, 269 , 551 F.2d 447, 455 (1977). The court rejects that test in favor of the arbitrary-and-capricious standard for this case on the basis of § 10(e) of the Administrative Procedure Act, which provides that “[t]he reviewing court shall . . . hold unlawful and set aside agency action , . . unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute”. 5 U.S.C. § 706 (1970). Sections 556 and 557 establish certain requirements for hearings provided by §§ 553 and 554, and § 554, which requires hearings before certain adjudications, exempts actions involving “the selection or tenure of an employee.” Thus the question whether employee-discharge litigation is intercepted.

Notwithstanding the language last quoted, we review here “the record of an agency hearing provided by statute”. Although the Lloyd-La Follette Act does not expressly mandate a hearing, it does authorize one, and in this case one was “provided.” See 5 U.S.C. § 7501 (1970) (“[ejxamination of witnesses, trial, or hearing is not required but may be provided in the discretion of the individual directing the removal or suspension without pay”). In fact, Commission regulations, promulgated pursuant to statutory authority, expressly require a hearing. 5 C.F.R. § 771.307 (b) (1977) and, moreover, § 7501 itself implicitly does also. In Arnett v. Kennedy, 416 U.S. 134 , 94 S.Ct. 1633 , 40 L. Ed.2d 15 (1974), at least six of the Justices concluded that, because § 7501 creates a *288 “property” interest in continued employment absent cause, some sort of notice and hearing is constitutionally required. Id. at 166, 94 S.Ct. at 1650, 40 L.Ed.2d at 40 (Powell, J., with Blackmun, J., concurring) (“[t]he federal statute guaranteeing appellee continued employment absent ‘cause’ for discharge conferred on him a legitimate claim of entitlement which constituted a ‘property’ interest under the Fifth Amendment. Thus termination of his employment requires notice and a hearing”); id. at 185-186 , 94 S.Ct. at 1660, 40 L.Ed.2d at 51 (White, J., concurring in part and dissenting in part) (“I conclude, therefore, that as a matter of due process, a hearing must be held at some time before a competitive civil service employee may be finally terminated for misconduct. Here, the Constitution and the Lloyd-La Fol-lette Act converge, because a full trial-type hearing is provided by statute before termination becomes final, by way of appeal either through [the employing agency], the Civil Service Commission, or both”); id. at 226-227 , 94 S.Ct. at 1680, 40 L.Ed.2d at 74-75 (Marshall, J., with Douglas & Brennan, JJ., dissenting) (due process requires a pretermination hearing to determine adequate cause for dismissal). Thus, to pass constitutional muster, the statute cannot be read to allow the entitlement it creates to be denied without some sort of notice and hearing. In reality, then, the statute “provides” a hearing. Cf. Reed v. Morton, 480 F.2d 634, 643 , 25 A.L.R.Fed. 787 (9th Cir.), cert. denied, 414 U.S. 1064 , 94 S.Ct. 571 , 38 L.Ed.2d 469 (1973) (Section 554 read as applying to hearings required either by a statute or by the Constitution).

. Maj.Op., 184 U.S.App.D.C. at-, 566 F.2d at 282 (emphasis in original). It has traditionally been thought that the substantial-evidence test affords “a considerably more generous judicial review than the ‘arbitrary and capricious’ test . . ..” Abbott Laboratories v. Gardner, 387 U.S. 136, 143 , 87 S.Ct. 1507, 1513 , 18 L.Ed.2d 681, 688 (1967). Since the labels have come to mean so little, however, clarity might be promoted were we to admit that in most cases all we are trying to do is to ensure exercise of an informed discretion. The label “substantial evidence” would then connote a determination as to whether the agency considered a sufficient amount of information, and the label “arbitrary and capricious” would signal a holding on whether the evidence considered was so one-sided that a rational decisionmaker could not have reached the result in question.

. Maj.Op., 184 U.S.App.D.C. at-,-& nn.22-25, 566 F.2d at 274-275 & nn.22-25.

. Id., 184 U.S.App.D.C. at -, 566 F.2d at 274.

. Id., 184 U.S.App.D.C. at-n. 34, 566 F.2d at 283 n.34; accord, id., 184 U.S.App.D.C. at -, 566 F.2d at 274 (“we are also not much impressed with the value of the psychiatric examination administered to appellant by Dr. Valle”); id. at 283 (“[t]his ‘diagnostic impression’ is little more than an ultimate conclusion unsupported by reasons or any detailed explanation that might give some substance to it”); id. at 283 (“[t]he terms should at least be defined, the significance of the diagnosis and prognosis explained in reasonable detail and in a manner that relates both to the employee’s current and projected capacity to perform his or her work satisfactorily”).

. Maj.Op., 184 U.S.App.D.C. at-n.15, 566 F.2d at 271 n.15.

. Id. See also K. Davis, Administrative Law of the Seventies § 29.00 (1976).

. Id. at---of 184 U.S.App.D.C., at 283 of 566 F.2d (emphasis supplied). The Manual instructs agencies to provide an examination of the employee, if feasible, prior to a decision to discharge. 752-1 Federal Personnel Manual § S.l-3(a)(5)(c) (“[t]o comply with the requirements of this Executive Order and law, an agency that has a question about the physical or mental capacity of an employee should have a medical report from a physician who has examined the employee”). If this procedure is to be more than a formality, it would seem that the examination must be more adequate than the court considers Dr. Valle’s to be.

. Contra, Maj.Op., 184 U.S.App.D.C., at-, 566 F.2d at 278.

. The question was directed to Dr. Eck “in order to obtain further evaluation of the medical evidence on which the agency had relied in proposing [appellant’s] removal. . . .” Record at 21. This in itself strongly implies that the Appeals Examining Office was not satisfied with Dr. Valle’s “impression.”

. Maj.Op., 184 U.S.App.D.C., at -, 566 F.2d at 277.

. Record at 23. This conclusion was quoted, but not commented upon, in the decision of the Appeals Examining Office. Maj.Op., 184 U.S. App.D.C., at-, 566 F.2d at 276.

. See note 13 supra.