Doe v. Hampton
| Decision Date | 03 November 1977 |
| Docket Number | No. 76-1090,76-1090 |
| Citation | 566 F.2d 265 |
| Parties | Jane DOE, Appellant, v. Robert E. HAMPTON, Individually and as Chairman, U. S. Civil Service Commission, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William J. O'Malley, Jr., Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and William P. Pease, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before TAMM, ROBINSON and ROBB, Circuit Judges.
We are summoned in this case to review the award of summary judgment against a federal civil-service employee dismissed from her job on grounds of mental disability. 1 We vacate that judgment and remand the case to the district court for a determination of whether a certain provision of the Civil Service Commission's Federal Personnel Manual is a regulation binding upon the employing agency, and if found to be such, for a further determination of whether the agency substantially complied with it.
Our pseudonymous appellant formerly was employed as a clerk-typist, GS-3, in the Office of Research and Technical Services (ORTS), Bureau of Engraving and Printing (Bureau or agency), Department of the Treasury. Hired by the Bureau in June of 1971, appellant came to her new job with two years of prior federal employment and thus enjoyed civil-service protection as a non-probationary federal employee. For her first few months with the Bureau, appellant performed her duties without apparent difficulty. In October 1971, for instance she received a descriptive performance evaluation of "well qualified" with a near-perfect performance requirement record. 2 Record 70. Some months later, however, she began to exhibit an emotional instability which thereafter required several lengthy absences for hospitalization 3 and, the agency claims, frequently disrupted office routine and reduced her job effectiveness.
When these problems continued with only occasional surcease, the agency, in March 1973, directed appellant to undergo a fitness-for-duty examination 4 in order to ascertain her suitability for continued employment. 5 Appellant agreed to have this examination, and, after a general physical examination the day before by a Dr. Tremols, she underwent a one-time, 45-minute psychiatric examination conducted by a Dr. Calixto Valle, III, on April 17, 1973. Dr. Valle, who never had occasion to reexamine appellant, diagnosed her condition as "schizophrenia, chronic-undifferentiated, compensated" and concluded that she was "not fit for duty at this time." Dr. Valle's medical opinion consisted only of these two above-quoted conclusions, jotted down at the bottom of the official examination form. Id. 48-50. This unelaborated medical "impression" was then incorporated into a report which, in turn, was "concurred in" by the Bureau's own Health Unit physician, Dr. N. V. Scorzelli. 6 Id. 100.
The Bureau finally notified appellant that it was seeking her removal and placing her in leave-without-pay status pending conclusion of separation proceedings within the agency. Her removal notice reiterated the allegations set forth in the earlier fitness-for-duty examination directive, see note 4 supra, and added further:
Because of your periodic disruptive behavior which causes undue problems to the small staff of this office and creates confusion in the work area, I (the Chief, ORTS) directed you to take a fitness-for-duty examination by letter of March 12, 1973. This letter states specifics of your erratic behavior and is attached as a part of this notice of proposed removal. You elected to have this examination conducted by the Public Health Service and named your sister . . . to represent you to see that your rights were protected.
In a memorandum dated May 18, 1973, Dr. N. V. Scorzelli, Medical Officer in charge of the Health Unit of this Bureau, informed (the) . . . Chief, Office of Industrial Relations, that he had received from the United States Public Health Service Outpatient Clinic results of the fitness-for-duty examination conducted in your case. The examination was conducted by Dr. Jose G. Tremols (sic ) (Dr. Valle) whose diagnostic conclusion was "that due to your mental condition you are not fit for duty at this time." Dr. Scorzelli advised that this is a chronic condition and he concurs with these findings. (You are not eligible for disability retirement inasmuch as you do not have five years of Federal Service.).
Record 94.
Appellant responded to this notice orally and in writing. Her written communication transmitted a mental status and employment capacities report, prepared at appellant's request by another Public Health Service psychiatrist, Dr. F. Wm. Bernet, which prognosticated that "with continued therapy and medication (appellant) will be employable" and recommended that she be permitted to return to her job at the Bureau. Id. 84, 86. Soon after receiving this report, the Bureau Head of the Employee Relations Branch met with Dr. Scorzelli and his nursing assistant and agreed to proceed with the removal proceedings since, notwithstanding Dr. Bernet's favorable conclusion, 7 "it was the consensus of opinion that, inasmuch as (appellant's) condition is chronic, there would be no lasting improvement . . . ." Id. 81. Appellant finally was separated from her agency on June 29, 1973, on grounds that she was not fit for duty and that her removal was necessary to promote the efficiency of the service. 8 Id. 78-79.
Post-termination administrative appeal proceedings then commenced at her behest. See 5 C.F.R. Part 771 (1974). An adjudicatory hearing was held at the agency in September before an independent Appeals Examiner, during which both parties submitted evidence and introduced the testimony of various witnesses, Dr. Valle, the practicing psychiatrist, among them. The examiner subsequently recommended that the removal action be upheld as warranted by the evidence and in compliance with applicable procedural requirements, and this recommendation was adopted by the agency as its final decision in February 1974.
Appellant proceeded then to the next stage of her available administrative remedies, see id. Part 772, by appealing the agency's decision to the Civil Service Commission's (Commission) Appeals Examining Office (AEO), which ultimately sustained the decision as reasonable and procedurally sound. The AEO chose not to confine its review to the existing record, however, as counsel for appellant apparently had anticipated. Compare Record 26 with id. 120. Instead, it sought and received the additional medical opinion of a Dr. Eck, Chief of the Bureau of Retirement, Insurance and Occupational Health's Medical Division, on the question whether "the observed deficiencies in (appellant's) performance, outlined above, are attributable to her diagnosed disabling condition; and whether this condition would make the employee a hazard to herself or others." Id. 25. Dr. Eck's medical statement, which was later incorporated into the AEO's affirmance, opined only that
the observed deficiencies and other actions are a result of her diagnosed mental illness. The psychiatric findings in the file 9 reveal meager paranoid or hallucinatory elements, and for this reason could conclude that her condition is not a hazard to herself or others. However, suicide and homicide are of danger in schizophrenia, and it is a most difficult assessment to make as to the possibility or probability of their being a hazard to themselves or others.
A final administrative appeal was then taken to the Commission's Appeals Review Board (ARB) 10 which affirmed the AEO's decision, concluding that the AEO's action in submitting appellant's case file to Dr. Eck for an additional medical opinion had been proper and that the AEO's decision had been an independent one based on its reasonable evaluation of the record evidence.
With her administrative remedies finally exhausted, see 5 C.F.R. § 772.307(c) (1974), appellant brought suit in the district court seeking the usual declaratory, injunctive, and compensatory relief. This proved unavailing, however, for the trial judge granted the Government's motion for summary judgment upon consideration of the pleadings, cross-motions for summary judgment, and the administrative record. Undeterred, appellant has followed the usual course in availing herself of a duplicative appeal to this court, 11 arguing once again that the agency failed to comply with applicable personnel regulations, that its decision was arbitrary and irrational, and that the AEO's communication with Dr. Eck denied appellant the due process to which she was entitled.
In passing upon appellant's claims, we must remain cognizant of the confines of our review. While the transition from unreviewability 12 to reviewability of adverse personnel actions against federal employees has left a legacy of some disagreement and confusion in the reported cases, it is at least reasonably well-settled that, whatever its exact scope, judicial review in the federal courts is necessarily limited. Federal judges do not sit as ombudsmen for government employment relations, 13 nor do we indulge the conceit of substituting our own judgment ad libitum for that of the agency. 14 Rather, we concern ourselves in the personnel business only insofar as is necessary to assure that the action challenged (1) is not arbitrary or capricious; 15 (2) was reached in conformity with relevant procedural requirements; 16 and (3) was not otherwise unconstitutional. 17
Our review, as that of the district court before us, is limited to scrutinizing the administrative record...
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