finding that “the ALJ’s omission is of no conse quence” because the plaintiff “would still fall short of satisfying the requirements for disability.”
How later courts described this case
- finding that “the ALJ’s omission is of no conse quence” because the plaintiff “would still fall short of satisfying the requirements for disability.”
- procedural lapses by an administrative agency “will not result in reversible error absent a showing that the claimant has been prejudiced on the merits or deprived of substantial rights because of the agency’s procedural lapses”
- reviewing decision by the Federal Employee Appeals Authority to terminate a doctor's civilian employment with the United States Army
- "... an agency's violation of its procedural rules will not result in reversible error absent a showing that the claimant has been prejudiced on the merits or deprived of substantial rights because of the agency's procedural lapses"
Written by the judges who cited it.
The opinion
*1058 ENGEL, Circuit Judge,
concurring.
I respectfully disagree with that portion of the majority order which appears to hold that the regulation providing for an “oral reply” may safely be ignored, or only perfunctorily respected, where there is later provided a full adversary proceeding. I believe that the majority order does not give sufficient heed to the admonition of the Court of Claims in Ricucci v. United States, 425 F.2d 1252 , 192 Ct.Cl. 1 (1970), that the oral reply provisions have a distinct and important place in the administrative scheme which ought not be lightly disregarded:
Taking the Regulation and Manual together, in summary, we read them as written for the protection of employees, and meaning that after adequate notice of charges and before dismissal, the accused employee may have an opportunity to discuss his case with an official of his agency. Not only may he state anything he pleases, from the number of mouths he has to feed to the alleged bias of his immediate supervisor, but he may expect help in presenting his case in form of such comments from the other side as would be natural from a person knowledgeable about the case and expecting largely to influence its resolution. Courts could hardly measure out the exact amount of loquacity he could demand, but at least they can discourage choice of an agency representative professionally trained to disclose nothing. Further, he has a right to expect that the ‘oral reply officer’ will be one whose recommendation would be meaningful, not an empty formality. This would be normally assured if he was one of the deciding officer’s circle of staff and line aides and advisers whom he regularly consults in such matters, unless the deciding officer has gone outside that circle for help for the employee’s own better protection. In that case the record would show how the outsider’s expertise was relied on.
425 F.2d at 1255-56 .
Here, the officers who heard Dr. Connor’s oral presentation were one Captain Hicks and Mr. William J. Davis, the latter described as a Labor-Management and Employee Relations Specialist in the Civilian Personnel Office at Fort Knox. It would seem that Captain Hicks’ primary function was to operate the tape recorder and to ascertain that Dr. Connor understood the nature of what had been done, and his rights with respect thereto. Apparently Mr. Davis was the person designated to receive and consider the oral reply.
Once the technicalities were out of the way, Dr. Conner was permitted to make his statement. The transcript of that statement, or oral reply, covers approximately seven pages, single spaced. There was no real interrogation of Dr. Connor by Mr. Davis and in fact, the absence of colloquy renders the circumstances here very similar to those which in Ricucci were found to justify reversal. The record does not reveal precisely what authority Mr. Davis possessed to fulfill the requirement of 5 C.F.R. § 752.202 (b) (1976) that the representative available to the hearing “shall ... have authority either to make a final decision on the proposed adverse action or to recommend what final decision should be made.” 1 Further, it appears that Mr. Davis did not in fact make any recommendation or final decision, if he was indeed authorized to do so. It appears that he merely transmitted without comment the transcript of Dr. Con-nor’s verbal reply, and also the latter’s grievance statement and affidavit concerning the grievance which Dr. Connor requested be made a part of the record. Mr. Davis also noted that Dr. Connor had declined to sign the verbal reply but transmitted it nonetheless.
The order which constitutes the majority decision appears to minimize the importance of the oral reply where it is followed by a full evidentiary hearing. I do not favor this construction of the regulatory scheme but rather, agree with Judge Nichols’ observations in Ricucci that a preliminary opportunity for reconciliation by per *1059 sonal confrontation is an essential part of the entire scheme. It is designed precisely to provide an early and informal opportunity to resolve the differences on an amicable basis, thereby resulting in a substantial saving of face, time, and effort. Thus it is not a procedure to be blithely ignored. The record here discloses an oral reply hearing that was dangerously close to the perfunctory hearing that mandated reversal in Ri-cucci. Two differences, however, cause me to concur rather than dissent.
First it does appear, by the title accorded him at least, that Mr. Davis was the type of official who was contemplated by the regulation to hear such an oral answer; he probably had power at least to recommend a final decision if he indeed lacked authority to make it personally. It seems most likely here that it was Colonel Pigg who had that final administrative authority. While the record could certainly have been more clear, Mr. Davis’ title suggests that he was better qualified than was the tax fraud investigator designated to hear the plaintiff’s “oral reply” in Ricucci .
The second and more important difference is the nature of the oral reply actually made by Dr. Connor at the hearing. Dr. Connor commenced by unfairly accusing Captain Hicks of indicating a predisposition against him when Captain Hicks noted for the record the purposes for which the hearing was being held. Thereafter Dr. Connor launched into a diatribe against Colonel Burnett which combined arrogance with a total lack of self-control. Under such circumstances it appears that what might otherwise be considered a perfunctory performance by Mr. Davis was more likely a recognition that nothing that he, Davis, might do would produce any meaningful dialogue between himself and Dr. Connor. I agree with Judge Nichols’ observation from Ricucci that the courts can hardly “measure out the exact amount of loquacity” the employee can demand and I also agree that the agency should discourage the choice of a representative who was “professionally trained to disclose nothing.” Ri-cucci v. United States, 425 F.2d 1252, 1256 , 192 Ct.Cl. 1 (1970). While the oral reply hearing in this case may have been a perfunctory exercise, Dr. Connor’s own conduct effectively foreclosed any firm conclusion to that effect.
There may be cases in which an employee about to be discharged can be charged with conduct so egregious that the failure to accord him a meaningful oral reply could be deemed harmless error. The particular misconduct with which Dr. Connor was charged, however, does not strike me as that type. An employee genuinely desiring to avail himself of the benefits of an oral reply, as it was contemplated in the regulatory scheme, might have used his time to engage in a colloquy; by reason and persuasion, he might have presented his case informally and eloquently before the officer designated to hear the reply. Had Dr. Con-nor so availed himself of this opportunity, perhaps Mr. Davis might have been sympathetic to his view and willing not only to make a recommendation, but to make one favorable to Dr. Connor. In view of the intemperate nature of the remarks, however, it is not surprising that the agency official, Mr. Davis, simply permitted the transcript to speak for itself.
. The same provisions are currently incorporated in 5 C.F.R. § 752.404 (c)(2) (1983).