Donald G. Jolly v. E. J. Listerman, Regional Representative, Bureau of Retirement and Survivors

672 F.2d 935, 217 U.S. App. D.C. 373

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 18, 1982
• Docket: 80-2265
• Status: Published

Opinions

WILKEY, Circuit Judge:

We are called upon in this case to decide whether the Social Security Administration (SSA) exceeded its statutory authority by dismissing one of its employees. Two issues are raised for our consideration: (1) whether, following an earlier remand from this court for reconsideration of its dismissal in light of reduced charges, the SSA denied appellant due process by reaffirming its decision; and (2) whether the SSA’s adherence to its prior decision to discharge appellant, notwithstanding the reduced charges, was arbitrary and capricious. We resolve these issues in favor of the SSA’s action; we therefore affirm the district court’s order reinstating summary judgment for defendants-appellees.

I. BACKGROUND

We shall provide some context to this matter at the outset by capsulizing the events leading to appellant’s discharge from the Social Security Administration (over seven years ago) and the steps leading to his appearance (once again) before this court.

Donald Jolly started with the Bureau of Retirement and Survivors Insurance of the Social Security Administration at its Southeastern Program Center in Birmingham, Alabama, in 1960. By December 1969 he had progressed from a GS-5 position to a GS-11 assignment as a quality reviewer in the Quality Appraisal Department, where he performed “end of line” review on samplings of claim files, searching for various processing errors. He remained in this position until early 1971, when he was assigned to a district office visitation program. He was involved exclusively in this program until January 1972.

During these years with the SSA Jolly was active in union work, and was elected president of Local 2206 of the American Federation of Government Employees (AFGE) for three consecutive terms, extending from 1969 to 1972. With union concerns dominating more and more of his time, Jolly took an approved leave of absence from the SSA from January to August of 1972 to devote all his energies to union activities. In August of that year, however, apparently as a result of intraunion friction and controversy, the national union headquarters imposed a trusteeship upon Local 2206 and removed Jolly as president. New local officers were appointed by AFGE leadership in October 1972, which thereby divested appellant of any official union responsibilities.

By this time Jolly had entered into the SSA’s Staff Development Program, a program designed to train promising employees for supervisory positions and for which he had been selected in July 1972. Appellant completed the first phase of his training but resigned from the program on 5 January 1973 when he was unable to obtain a six-month extension before being transferred to Atlanta, Georgia, for the second phase.¹ He was thereafter reassigned to the Quality Appraisal Branch as a quality reviewer. Because his experience in that position had been limited by his involvement in other programs and activities over the previous two years, he was required to retrain for the job.

It was anticipated that it would take Jolly about two months of retraining to obtain a level of accuracy that would permit “graduation” from trainee status to that of a final reviewer. In fact, however, he remained a trainee for nine months— from February through October 1973 — and, according to management, his work never reached the required level of accuracy. Forms returned to Jolly were accompanied by written critiques indicating errors, but appellant adopted a position that there was in fact no substantial problem with his work. He maintained that the errors identified by reviewers were either not his fault, insignificant, or the result of an inadequate training system. Jolly’s supervisors, on the other hand, saw his poor performanee as resulting from “his lack of applying himself and trying to do the work,” his failure to accept suggestions for improving his work, and a general “defiant” response to any criticism. On 24 July 1973 Jolly was given sixty-days’ notice to improve his work. When the improvement had not occurred by 30 October, appellant was notified by letter that Mr. Yeorgan, the Acting Quality Appraisal Officer, was recommending that Jolly not be retained in the quality review position.

Jolly’s duties with the SSA were also affected at least in part by his devotion to union activity. He was, according to management, frequently interrupted by non-work-related phone calls and visitors. While involved even in the “prestigious” staff development program, he refused to accede to a supervisor’s request to cooperate in restricting work interruptions. When, after he returned to quality appraisal, Jolly’s union-related activity continued to occupy an excessive share of his work day and began to interfere with retraining efforts, his new supervisors found it necessary to restrict the number of incoming phone calls during work hours and the amount of work time that could be used to represent other employees’ grievances against management.²

On 27 December 1973 Jolly was sent a letter from E. J. Listerman, regional representative of SSA’s Bureau of Retirement and Survivors Insurance, notifying appellant of a proposal to separate him from federal service and listing in detail the reasons for the proposed action. The charges in the notice were essentially these:

1. Poor quality of work;

2. Failure to cooperate with superiors— specifically:

(a) Failure to cooperate with supervisors’ requests to limit grievance representation in order to permit concentration on retraining for the job;

(b) Failure to cooperate in limiting the number of nonwork-related telephone calls received during work hours;

(c) Resignation from the management training program, causing a waste of time and money spent planning Jolly’s participation in the program and causing an inconvenience to the Atlanta Regional Office.

(d) Refusal to answer management questions concerning the publication of newsletters seen as particularly disparaging to management and of a type which could have a derogatory effect on employee morale;

3. Creating an atmosphere adversely affecting the employee-employer relationship by publishing activist newsletters and by holding himself out as president of Local 2206 after the trusteeship was imposed.³

Appellant denied the allegations in Listerman’s letter and requested advisory arbitration, which was agreed to by both the agency and the AFGE. A month-long hearing before the advisory arbitrator yielded an opinion dated 12 December 1974 concurring with the SSA’s proposal to discharge Jolly from federal service. This opinion was accepted by the agency on 20 December 1974, and the decision to separate Jolly from federal service was noticed as effective at the close of business on 27 December 1974.

Appellant proceeded to the next stage of available administrative review by appealing the SSA’s decision to the Civil Service Commission’s Federal Employee Appeals Authority (FEAA).⁴ At appellant’s request a hearing open to the public was conducted by an FEAA representative on 10 and 11 September 1975. For reasons unimportant to the present review, the FEAA effectively struck charge number 3, relating to “creating an atmosphere adversely affecting employee-employer relationship,” and parts (c) and (d) of charge 2 in the list of particulars, relating to resignation from the management training program and refusal to answer questions regarding the publication of the union’s newsletter. Nevertheless, the FEAA upheld the dismissal on the remaining charges, concluding “that a removal action based on the sustained charges is not arbitrary, unreasonable or capricious and is for such cause as will promote the efficiency of the service.”⁵ Under Civil Service Regulation 772.309(b) the FEAA decision was final and there remained no further right of administrative appeal.⁶ Jolly therefore proceeded to the courts.

On 25 May 1976 Jolly brought suit in the United States District Court for the District of Columbia seeking the usual declaratory, injunctive, and compensatory relief. Defendants moved for dismissal or summary judgment, and when Jolly failed to file a timely statement of points and authorities in opposition to defendants’ motion, the district court dismissed the case. This court reversed the dismissal on appeal, however, and remanded the case to the district court for further consideration.⁷ On remand the district court granted defendants’ motion for summary judgment and ordered once again that the action be dismissed.⁸

Undeterred, Jolly followed the usual course by availing himself of a duplicative appeal to this court, arguing for a remand to the Social Security Administration with directions to reconsider the penalty imposed in light of the Civil Service Commission’s having reduced the original charges against him. This court accepted appellant’s request for a remand and made clear its reason for doing so:

When a public employee is dismissed, and some of the grounds for termination are later held to be improper, ... [and] if it is unclear whether the charges were deemed by the agency to constitute separate or cumulative grounds for discharge, the case should be remanded to the agency for reconsideration of the propriety of the punishment imposed.⁹

On 25 July 1980 Harry Overs, Director of the SSA’s Office of Program Service Centers, transmitted to the district court, through the United States Attorney for the District of Columbia, a reply to the court’s order that the SSA reconsider Jolly’s separation. The reply indicated “a careful review of the record of the adverse action file, including the Agency briefs, the appellant’s briefs, the transcript of the adverse action hearing before the Federal Employee Appeals Authority, the Arbitrator’s recommendations and findings, the Assistant Appeals Officers’ recommendations and findings, and Mr. Jolly’s work record.”¹⁰ It stated further that “[f]ull consideration [had] been given to reinstating Mr. Jolly to his position in the Federal Service,” but that a determination had been made that Jolly’s removal action was appropriate and fully supported by the “charges and specifications sustained by the Federal Employee Appeals Authority.”¹¹

On 3 September 1980 the district court filed a memorandum order reaffirming its earlier action granting summary judgment to defendant and dismissing plaintiff’s action. Subsequent motion by plaintiff to vacate the summary judgment and enter summary judgment for the plaintiff was denied and appellant once again seeks the review of this court.

II. ANALYSIS

Appellant’s arguments for reversal of the district court’s summary judgment upholding the SSA’s action may be grouped into two general positions: First, appellant contends that the agency’s decision to uphold the prior discharge violated his rights to due process under (a) agency regulation and (b) the Fifth Amendment. Second, under a general approach that the SSA’s action was arbitrary and capricious, appellant claims (a) that the charges leading to his discharge are not supported by evidence on the record, and (b) that even if the charges are substantiated, discharge was an excessive penalty under the circumstances. We address each of these arguments in turn.

A. Due Process

The essence of appellant’s due process arguments is that the trial court’s grant of summary judgment for the agency relies upon allegations outside the original charges against Jolly and violates the agency’s rules and regulations as well as Jolly’s constitutional rights to due process. This argument finds root in appellant’s contention that the SSA, in its review of Jolly’s discharge at the behest of this court, actually “dredged up new allegations that were not contained in the agency’s notice of proposal to discharge.”¹² According to appellant, the charges that Jolly had been uncooperative with retraining efforts by receiving excessive numbers of visitors at his work station, that he had on one occasion been accompanied onto federal property after work hours by a person not employed by the SSA and in the possession of a handgun, and that he had given inconsistent reasons for leaving the Staff Development Program, were not charges included in the original list of particulars incident to his separation and were not supported in the administrative record leading to the district court’s summary judgment. Appellant argues that these charges cannot validly play a part in the SSA’s reconsideration of the propriety of his discharge and that to do so violated regulations binding on the SSA and interfered with Jolly’s due process rights to be given advance notice of reasons relied upon for his removal.¹³

There is nothing essentially wrong with appellant’s argument that an advance notice of reasons for discharging an employee and an opportunity for some kind of hearing on those reasons are vital elements of that employee’s constitutional rights to due process. We are convinced, however, that due process requirements have in every respect been adequately met in this case.

1. Process due by “regulation”

We recognize, as we have on prior occasions, that an agency is bound by its own procedural rules governing adverse action toward one of its employees, even where such rules require more than may be required under the due process clause of the Fifth Amendment.¹⁴ We also recognize, however, that not “every piece of paper emanating from a Department or Independent Agency is a regulation.”¹⁵ We feel, upon examination of the “regulation” allegedly violated in this case and by reference to its own language, that it is actually intended to be something less than a binding rule. The passage, found in the Federal Personnel Manual, states simply that “if the notice of decision [in an adverse personnel action] in any way alters the reasons stated in the advance notice, except to reduce the seriousness of the reasons, the validity of the entire action becomes questionable.”¹⁶ The impact of this provision is clearly informative, perhaps precatory, but certainly not directive or mandatory. The “becomes questionable” language alone signals no more than a warning to supervisors and management in government agencies that personnel actions must be taken with an eye to eventual and inevitable review under the standards of procedural due process.

In this sense, the passage simply calls attention to what the courts themselves have made clear on numerous occasions: an adverse personnel action may fail to pass muster under the Fifth Amendment when it appears to have been taken for reasons other than those of which affected individuals have been given notice and to which they have been allowed to respond.¹⁷ This guideline has no meaning independent of the due process considerations inherent therein, and we find no merit in appellant’s independent reliance upon the SSA’s alleged failure to abide by this provision.

2. Process due under the Constitution

It is an elementary principle of constitutional law that the right to due process attaches under the Fifth Amendment only where there is governmental action adversely affecting recognized liberty or property interests.¹⁸ Interest in continued employment has been recognized as a protectible property interest in some circumstances, as where the employment is tenured or otherwise nonprobationary.¹⁹ But, just as there is generally no protected interest in keeping a particular job beyond a probationary period, there is no recognized property right in a mere chance or expectation of being hired (or, we would add, rehired) by a particular employer or to a particular position. The only interests to which due process rights could have attached in this case were appellant’s interests, while still employed in the federal service, in continued employment with the SSA. It is the discharge from this employment alone that is in the first instance arguably restricted by the due process requirements of advance notice and some kind of hearing. It is clear from the record and uncontested by appellant that these requirements were more than adequately satisfied; for purposes of the original discharge, by the advance notice given to Jolly and by the process afforded him in the lengthy evidentiary hearing before an independent advisory arbitrator, as well as the open hearing before the FEAA.

We find nothing in the SSA’s reconsideration of the discharge which affects this clear compliance with constitutional due process. It is true that within the context of discussing Jolly’s lack of cooperation with his superiors, the SSA’s letter to Judge Pratt refers to the presence of excessive visitors at Jolly’s work station. We are not persuaded, however, that this is a “new charge,” as appellant would have us find; rather, it is an observation interrelated with appellant’s continued activity in union representation, his apparent misuse of official time, and the frequent work interruptions specifically charged in the initial letter of particulars and addressed by evidence in testimony by both sides at the hearings.

As to the remaining “new charges” with which appellant takes issue, we find the Government’s explanation and characterization helpful. The Government points out in its brief that the “charges” relating to the handgun incident and to the appellant’s having given inconsistent reasons for leaving the Staff Development Program were in fact not relied upon in the portion of the SSA letter which addressed whether the charges against appellant, as reduced by the Civil Service Commission, were sufficient grounds for dismissal.²⁰ Reference to these incidents was limited to the SSA’s separate consideration of whether, in spite of the determined validity of the grounds for appellant’s discharge, discretionary reinstatement or reassignment would be appropriate. There is no constitutional error in this approach by the SSA, taken as it was in the context of a post-decision review.

We noted above that the formalities of procedural due process were clearly satisfied in the actions leading to Jolly’s discharge. If we assume further, at least for purposes of present analysis, that the agency also did not step outside of statutory bounds,²¹ we may treat Jolly as constitutionally unemployed, i.e., as having been constitutionally deprived of any preexisting property interest in his SSA employment. Upon such a discharge, he is in precisely the same position (although for slightly different reasons) as any person who has no position in government service; and any subsequent decision by an employing agency, whether another agency considering whether to hire him, or the SSA pondering possible reinstatement, is not governed by the normal procedural standards of due process. There is thus no basis in a due process argument for prohibiting the SSA’s reference to or reliance upon facts or factors neither included in the notice of discharge nor addressed on the record in determining whether the agency should exercise its purely discretionary power to reinstate Jolly into SSA service.

Appellant counters this position with an argument that such a bifurcated approach does not comply with the prior “directive” of this court. It describes the Government’s explanation as “twisting this Court’s remand into a two-step process of first determining whether ‘the remaining charges warranted . . . dismissal’ and then ‘to make a separate determination of whether to reinstate appellant and reassign him.’ ”²² Appellant argues that there is nothing in this court’s memorandum opinion remanding the case to the SSA which supports this two-tiered consideration. Rather, it is proffered, the SSA was bound, in deciding whether Jolly should have been discharged, to a consideration of only (1) Jolly’s performance record prior to the problems arising in the early 1970’s; (2) the fact that the original charges were reduced; and (3) the court’s observation that the remaining charges appeared to be “slight.”

Appellant obviously misinterprets the thrust of the earlier memorandum opinion. This court simply intended, by remanding the case, to give the SSA an “opportunity to reconsider the exercise of its discretion.”²³ It did not dictate an outcome or place specific procedural strictures upon the SSA any more than it afforded Jolly a chance de novo to challenge the factual conclusions drawn in prior adjudicatory proceedings. The SSA clearly satisfied the overall purpose of the remand and answered this court’s concern by signaling that the original charges were not cumulative.²⁴ We find no violation of due process in the approach adopted by the SSA in making this determination.

B. The Arbitrary and Capricious Test

Appellant’s second area of argument is directed at alleged infirmities in the substantive aspect of this dismissal action. He contends that even if the SSA’s action was procedurally sound, it must still fail because (1) the charges are not supported by the evidence on the record, and (2) even if the charges were established, the discharge itself was unjustified. For reasons discussed below, we find these arguments without merit.

1. The charges and the record

Appellant contends that the charges against him were not established by “substantial evidence” on the record and that the agency’s action must for that reason be reversed. He supports this argument, however, with little more than a claim that the charges themselves were merely “pretextual,”²⁵ and a restatement of his version of the facts. It is clear from the extensive factual arguments in his brief that appellant’s actual contention is not that the agency failed to present sufficient evidence to support his discharge, but that this court should find the agency’s evidence unpersuasive against that offered by the appellant. We of course may not follow this invitation to reweigh the evidence and at the same time adhere to our proper role in the review of personnel actions.

Our scope of review in a case of this type is exceedingly narrow,²⁶ restricted by relevant authority to a consideration only of whether the SSA’s action is arbitrary and capricious, i.e. whether the conclusions upon which the agency acted are supported by record evidence and whether there is in other respects a rational basis for the discharge itself.²⁷ While this does require as a first step a review of the record, we are not here to retry the facts. There is no appeal on the merits as such in personnel actions of this type. Thus, where there is sufficient evidence upon which to base a rational finding, we do not have the right to retry the case on the theory that the factual conclusions were wrong. As this court has stated,

[Fjederal judges do not sit as ombudsmen for government employment relations, nor do we indulge the conceit of substituting our own judgment ad libitum for that of the agency. 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; (2) was reached in conformity with relevant procedural requirements; and (3) was not otherwise unconstitutional.²⁸

We are therefore concerned, not with whether the factual issues in this case were resolved by the factfinders as we or as our dissenting colleague might have resolved them, but only with whether the factual conclusions are based on some evidence, i.e., whether the agency engaged in informed decisionmaking. There is adequate evidence in this case supporting the remaining charges against Jolly to satisfy us that the agency’s action on the charges listed against Jolly was not irrational or otherwise arbitrary and capricious.²⁹ Our evidentiary review need go no further.

2. The severity of the punishment

Appellant’s ultimate argument is that even if due process was afforded and even if there is evidence to support the charges, his discharge was excessive punishment and for that reason unwarranted by those charges as ultimately reduced. He relies in part on this court’s earlier observation that the reduced charges seemed “slight in view of [Jolly’s] many years of service.”³⁰ He also claims that the SSA had not discharged other employees with unsatisfactory performance and that it was bound to follow a less severe disciplinary route, such as transfer, before resorting to discharge from the service. We address this latter argument first.

Appellant maintains that administrative policy binding on the SSA requires the attempted reassignment of employees with performance-related problems before reverting to the more harsh alternative of permanent discharge. The SSA’s failure to conform to this requirement, according to Jolly, deals a fatal blow to the reasonableness of the discharge in this instance. Appellant would find this “policy” in SSA personnel guidelines or in prior agency practice. We find it in neither.

The personnel guideline to which appellant refers states simply that “[a]n employee should not remain indefinitely in a position in which he is not performing at an acceptable level of competence. If he cannot be trained or motivated to perform the job acceptably, an attempt should be made to place him in a more suitable job.”³¹ Appellant puts particular weight on this guideline because this court referred to it in its prior memorandum opinion, hinting that it might properly be factored into the SSA’s ultimate decision concerning the propriety of Jolly’s discharge.³² We do not feel, however, upon examination of this guideline and its context, that it constitutes a rule or regulation limiting the agency’s options in this case.

First of all, the quoted phrase appears in a context of guidelines relating, not to discharges, or even to disciplinary actions in general, but to grants or denials of within-grade increases. There is no indication whatsoever in the guideline itself or in the surrounding text that its provisions have any relevance outside of this area. Certainly we have no basis for holding that this “rule” was intended to apply to adverse actions of the sort before us.

Secondly, even if the guideline were intended to find some application outside the context of within-grade increases, we would not be convinced that it would be a binding rule. The use of the word “should” in the phrase detracts significantly from any claim that this guideline is more than merely precatory. The fact that it is described as a “guideline” should also hint of precatory intent. We simply do not think that it may reasonably be interpreted as a binding procedural rule with which the SSA must comply in a personnel action of this nature.

No doubt anticipating such a conclusion, appellant argues further that an unwritten but nevertheless binding rule has arisen from a common SSA practice of seeking transfers as a prior alternative to seeking discharge for individuals in Jolly’s position. As the Government points out, however, appellant is attempting by this argument to create a binding rule or regulation from a “common law” of only two instances occurring prior to his own discharge³³ where SSA employees were transferred rather than discharged. In one case, a quality appraiser whose errors had skewed national statistical results had responded to additional training and was allowed to remain on the job.³⁴ The second case to which appellant refers is that of an individual who was having unhappy experiences with his job and who was able to obtain a transfer to another department.³⁵ Not only is the factual similarity between the circumstances of these two cases and those underlying Jolly’s discharge less than striking, but we do not believe that two instances alone provide a sufficient basis for finding an “established” practice giving rise to a binding rule of “transfer prior to discharge.” There is no reason in this case to so limit agency discretion.

Even though subject to procedural strictures of the due process clause, statute, and sometimes regulation, the disciplinary power of an employer in the public sector, just as that of a business or individual in the private sector, remains largely discretionary. The Federal Personnel Manual, to which appellant himself cites, admits that “[tjhere are many situations which may call for disciplinary action and [that] a wide variety of disciplinary actions are available. ... There is no substitute for judgment in selecting among them.”³⁶ To accept appellant’s argument for a type of “common law” rule binding the SSA in this case would be to deprive the SSA of the important role that judgment of the often unique circumstances of an individual case must play in the overall disciplinary scheme.

The personnel manual does call for “like penalties for like offenses.” It warns, however, that “surface consistency should be avoided.”³⁷ Emphasis is placed on appropriate agency consideration of all factors, particularly whether the action accords with justice in the particular situation. The determination of justice resides with the agency alone, subject of course to review for arbitrary and capricious action. We find in the totality of pertinent guidelines and policies behind effective administration and management no rule or regulation, whether explicit or arising as some sort of administrative estoppel from precedential practices, which dictates that the SSA must attempt to transfer an employee before it considers discharge.

Our attention turns finally to appellant’s contention that the discharge was simply not justified by the reduced charges and to his reliance for this position upon the footnote observation in the memorandum opinion accompanying r.emand of this case that “many of the specific charges seem slight.” As this court has stated,

There may be ground for reasonable differences of opinion as to whether the cause for which the personnel action was taken was grave enough to warrant depriving appellant of his position, but the court is not warranted in substituting a different judgment of its own for that of appellant’s superiors, whose action has been sustained by the Civil Service Commission and the district court.³⁸

While this observation was made in a case that preceded the more recent trend by the courts to review personnel actions in general, its principle has been reaffirmed in other cases. In Giles v. United States³⁹ the Court of Claims held that an administrative determination of appropriate punishment in civil service disciplinary actions is judicially reviewable only if the punishment is ultra vires or totally unwarranted.⁴⁰ Stated in other terms, a court will not reverse on review where the penalty is not “so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.”⁴¹

In the review of penalties in particular, the “abuse of discretion” or “arbitrary and capricious” tests focus on the relationship between the penalty, the offense, and the efficiency of the service.⁴² Where this relationship is rationally based, we cannot say that there has been an abuse of agency discretion. Furthermore, where, as here, an employee has been afforded a full evidentiary hearing before an impartial factfinder and an open hearing before an impartial review board, the conclusions and recommendations of those bodies are due some weight, if not considerable deference.

In Jolly’s case an independent arbitrator, after an extensive hearing involving examination and cross-examination by both sides, recommended that the agency discharge Jolly. The SSA discharged Jolly, the FEAA upheld the discharge on administrative appeal, and the district court upheld the discharge on the SSA’s motion for summary judgment. There is no contention that the question of punishment was not fully reviewed at each level. Jolly argues that the recommendations and decisions were excessive.

It is within the entire context of procedure and deliberation that the observation by this court in its memorandum opinion that the charges seemed “slight” must be read. As we have emphasized before, the memorandum opinion was not intended to dictate to the SSA a final outcome in this case. It was simply this court’s impression that under the circumstances of the FEAA’s reduction of the charges the SSA should be given an opportunity to reconsider its position and to make clear whether the original charges were intended to be cumulative, or whether separate charges, standing alone, would have likewise resulted in Jolly’s discharge. We are convinced that the SSA adequately reconsidered Jolly’s situation upon remand, and we find no compelling reason in the record to question the SSA’s ultimate judgment.

There is no draconian disproportion between the ultimate charges of unsatisfactory performance and lack of cooperation on the one hand and the penalty of discharge on the other which would signal an abuse of discretion in the selection of the appropriate mode of discipline. There is no call for us to overturn the FEAA-approved and SSA-reaffirmed penalty determination in this case.

C. The Dissent’s Reliance Upon the Porter Cases⁴³

We have considered the Porter cases relied upon by Judge Edwards in his dissent, and we disagree that our opinion today is inconsistent with these Fifth Circuit cases. Although the cases are in a sense factually related to the instant case,⁴⁴ separate legal issues are raised.

The Porter cases dealt with constitutional questions which are not before this court. Appellant there charged that “her Fifth Amendment right to due process was violated because she was suspended [for thirty days] without being allowed a full evidentiary hearing and that her First Amendment right of free speech was violated because she was punished for making protected speech.”⁴⁵ The Fifth Circuit’s holding on these combined issues was narrow. It held that it was inappropriate to rule against important constitutional claims by summary judgment when no evidentiary hearing had been held to settle genuine and material factual disputes, and on this basis it remanded to the district court for discovery and full trial.⁴⁶

The Fifth Circuit did not predetermine that there was no basis for Porter’s suspension, just as it did not rule on the First Amendment claims. As Senior Judge Skelton, sitting on the panel by designation, observed in a specially concurring opinion, “It may be that the agency was justified in suspending the appellant for 30 days. Whether or not this is so will now be determined in a meaningful hearing held in the district court. Consequently, it would be inappropriate for us to express an opinion on the merits of the case.” ⁴⁷

We fail to see the similarities that Judge Edwards finds between the Porter cases and the matter before us. First, and contrary to Porter, there was a full evidentiary hearing in this case, and there is no continuing First Amendment issue before this court.⁴⁸ Second, there is still no record of any resolution of the factual issues in Porter. The Fifth Circuit made clear that one reason for the remand was to clear up the several issues which made factual conclusions impossible. Certainly, there was no resolution in Porter of the facts pertinent to Jolly’s case. As the Porter court noted, “[T]he record in the instant case does not contain the record in the Jolly case, or even an adequate description of it by someone other than Porter.”⁴⁹

In our opinion, the dissent stretches the Fifth Circuit’s position in either Porter I or II to suggest that it shows that Jolly was arbitrarily discharged and that our decision here, where a full and complete evidentiary hearing was provided, runs counter to those cases.

III. CONCLUSION

Despite the concern of our dissenting colleague, which is strongly expressed and no doubt conscientiously held, this case does not involve a retaliatory dismissal of a whistle-blower — an action that no member of this court would countenance. We hold only that the findings and action of the responsible authorities were justified on the administrative record by Jolly’s failure to achieve an acceptable level of performance in his assigned tasks. This opinion should be read to imply no more than what it clearly holds.

We have no reason to doubt that appellant Jolly was once a valuable employee of the SSA. It is apparent, however, that his increasing involvement with other interests, his union concerns and fights against new union leadership on the one hand and confrontations with management on the other, detracted significantly from the attention he was willing or able to devote to reacquainting himself with his job responsibilities. After returning full time to the SSA, he simply never got back to an acceptable work level on the job for which he was being paid day by day. It is always unfortunate when management finds it necessary to discharge an employee, but it is not our position to question the propriety of such an action when Jolly himself has been afforded more than ample opportunity to make his case and when impartial adjudication at various levels has supported the SSA’s action.

This court’s remand to the SSA had the limited purpose of seeking reassurance that the SSA’s action would have been the same had it considered the charges as ultimately reduced. The SSA’s reconsideration of the circumstances of the case and its reaffirmance of the initial discharge satisfies this concern. We have not been shown that the agency’s decision was the result of an arbitrary and capricious approach to Jolly’s situation, nor is there any indication that appellant has been afforded less than adequate due process. It is therefore not within our power or prerogative as a reviewing court to question the SSA’s exercise of its discretionary powers as an employer, nor to reverse the SSA’s decision. The district judge’s opinion on this was the same: the facts supported Jolly’s discharge. For this reason, and taking the record itself as undisputed, we find no cause to overturn the district court’s grant of summary judgment. The district court’s order is therefore

Affirmed

1 . Although he initially sought to postpone the transfer for “family reasons,” he later admitted that his actual motive was to continue his struggle with the new leadership of Local 2206. Arbitrator’s Hearing Transcript (Tr.) at 2015-16.

2 . Appellant filed an unfair union practice grievance challenging these restrictions, but it was ultimately rejected as without merit, with the following:

With respect to the allegations that [management] restricted you in receiving “union” visitors at your work station and imposed restrictions in your receiving nonwork-related telephone calls at your work stations, there is insufficient evidence that [management’s] decision to impose and implement these restrictions were [sic] motivated, in whole or in part, because of your activities assured by [Executive] Order [11491], Although [management] granted you certain privileges during the period of your incumbency as president of Local 2206, American Federation of Government Employees, [management’s] obligation to continue to grant these privileges terminated when American Federation of Government Employees placed Local 2206 under Trusteeship.

(Tr. at 1930.)

3 . See Notice of Proposal to Discharge Mr. Jolly, Joint Appendix (J.A.) at 5-14.

4 . This was the avenue of appeal available at the time, pursuant to 5 C.F.R. 752, 772 (1974). The channels of administrative appeal have since been modified to some degree by the Civil Service Reform Act of 1978, 5 U.S.C. §§ 1110—8913 (1978). See discussion in Note, 26 Wayne L.Rev. 97 (1979).

5 . J.A. at 31.

6 . See 5 C.F.R. § 772.307(c) (1974).

7 . Jolly v. Listerman, 574 F.2d 637 (D.C.Cir.,1978), J.A. at 44.

8 . Jolly v. Listerman, Civil No. 76-932 (D.D.C., 30 May 1978), J.A. at 48.

9 . Jolly v. Listerman, 610 F.2d 999 (D.C.Cir.1979), J.A. at 3.

10 . Letter on Reconsideration, J.A. at 57-58.

11 . Id.

12 . Appellant’s Brief at 20.

13 . Id. at 21.

14 . E.g., Doe v. Hampton, 566 F.2d 265 (D.C.Cir.1977); Mazaleski v. Treusdell, 562 F.2d 701 (D.C.Cir.1977). See also Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959).

15 . Piccone v. United States, 407 F.2d 866, 877 (Ct.Cl.1969), (Nichols, J., concurring), quoted in Doe v. Hampton, 566 F.2d at 281.

16 . Federal Personnel Manual, Supp. 752-1, subchap. S7-2(a) (emphasis added).

17 . See Ralpho v. Bell, 569 F.2d 607, 628 (D.C.Cir.1977) (“the opportunity to meet and rebut evidence utilized by an administrative agency has long been regarded as a primary requisite of due process”).

18 . Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

19 . A property interest in continued employment may be created by statute or by contract, see Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), or in some circumstances perhaps even by “the existence of rules and understandings promulgated and fostered by ... officials.” Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972).

20 . Brief for Appellees at 15-16.

21 . We leave for later in this opinion our discussion of the appellant’s argument that the discharge was arbitrary and capricious and therefore outside of statutory authority.

22 . Appellant’s Reply Brief at 14.

23 . Jolly v. Listerman, 610 F.2d 999 (D.C.Cir.,1979), J.A. at 3 (emphasis added).

24 . See text accompanying note 7 supra.

25 . Appellant claims that he was actually discharged in retaliation for his resignation from the management program and for his anti-management union activities.

26 . Yacovone v. Bolger, 645 F.2d 1028, 1032 (D.C.Cir.1981); Doe v. Hampton, 566 F.2d 265 (D.C.Cir.1977); McTiernan v. Gronouski, 337 F.2d 31, 34 (2d Cir. 1964).

27 . We find no reason to muddy the waters of this review by adding some sort of “substantial evidence” gloss to the otherwise adequate “arbitrary and capricious” test. As Judge Tamm observed in some detail in Doe v. Hampton, 566 F.2d 265, 271 n.15 (D.C.Cir.1977), there is some question of whether the “substantial evidence” label, often used by other courts to describe their review of the evidence in personnel actions, adds anything to the actual scope of review by such courts. Furthermore, in light of the traditional view 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, 1512, 18 L.Ed.2d 681 (1967), we are concerned that application of a substantial evidence label to judicial review in such matters might lead to “a more generous judicial review . .. than the reviewing courts are entitled to.” 566 F.2d at 272 n.15. For these reasons, this court shall continue to review personnel actions of this sort under the “arbitrary and capricious” test of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1976).

28 . Doe v. Hampton, 566 F.2d at 272 (footnotes omitted).

29 . Judge Edwards’ dissent points to the testimony and data offered by Dr. William Campbell, a statistician employed by Mr. Jolly, as “the only objective comparative analysis of Mr. Jolly’s performance with that of others,” Dissent at 953, suggesting that the existence of such testimony supporting appellant’s position that his job performance was satisfactory is sufficient to demonstrate that the agency’s action was arbitrary and capricious. We disagree.

We find no clear error in the findings made by the independent arbitrator who first considered Dr. Campbell’s testimony: “[Ojn cross examination this testimony was shown to be based on incomplete facts and statistical information and did not in any way dispute testimony elicited on behalf of Management.” Arbitrator’s Findings at 6. The CSC found likewise: “after a careful review of the record, we conclude that the assumptions made by Dr. Campbell are invalid.” J.A. at 24. The district court, in its initial review of this matter, found no reason to question this evidentiary conclusion: “We further believe that the arbitrator and CSC were not arbitrary and capricious in discounting the testimony of Dr. William H. Campbell, offered by plaintiff to refute the .charge that his work was of poor quality.” Jolly v. Listerman, Civil No. 76-932 (D.D.C., 30 May 1978), reproduced in J.A. at 52.

The record in this matter includes the testimony of 42 witnesses before the arbitrator and 10 witnesses before the FEAA. In all, the transcripts in this case cover in excess of 3,600 pages. We find no reason to reverse the findings of the impartial factfinders against this record.

30 . Jolly v. Listerman, 610 F.2d 999 (D.C.Cir.,1979), J.A. at 4.

31 . Personnel Guides for Supervisors, Section VIII-C, reproduced in J.A. at 96.

32 . Jolly v. Listerman, 610 F.2d 999 (D.C.Cir.1979), J.A. at 4.

33 . The affidavits offered by appellant to the district court recite additional evidence of less severe disciplinary actions, J.A. at 78-81, but they postdate the original SSA action by as much as six years. They cannot be the basis of SSA precedent.

34 . Tr. at 734-35.

35 . Id. at 2550-51.

36 . Federal Personnel Manual, chap. 751, “Discipline,” subchap. l-2(a) (emphasis added).

37 . Id. at l-2(c).

38 . Studemeyer v. Macy, 321 F.2d 386, 387 (D.C.Cir.), cert. denied, 375 U.S. 934, 84 S.Ct. 337, 11 L.Ed.2d 265 (1963).

39 . 553 F.2d 647 (Ct.Cl.1977).

40 . Id. at 650.

41 . Power v. United States, 531 F.2d 505, 507 (Ct.Cl.1976).

42 . Tenured employees may by statute be dismissed where reasonably necessary to “promote the efficiency of the service.” LIoyd-La-Follette Act § 6(a), 5 U.S.C. § 7501(a) (1970). (Amendments made effective in 1979 are to the same effect. See 5 U.S.C. §§ 7511(a)(1); 7513(a).)

The courts have framed the “efficiency of the service” issue in terms of requiring a “nexus” between, as this court phrased it in Doe v. Hampton, “the articulated grounds for an adverse personnel action and either the employee’s ability to accomplish his or her duties satisfactorily or some other legitimate governmental interest promoting the ‘efficiency of the service.’ ” 566 F.2d at 272.

43 . Porter v. Califano, 592 F.2d 770 (5th Cir. 1979); Porter v. Schweiker, 648 F.2d 310 (5th Cir. 1981).

44 . It was in her attempts to muster support for Jolly among fellow employees that Porter evidently ran into her own problems with management at the Birmingham center.

45 . 592 F.2d at 771.

46 . Id at 777. The outcome in Porter II was equally narrow, again without any resolution on the merits. The court held simply that the government’s settlement tender did not moot Porter’s challenge, that dismissal was therefore inappropriate without further fact resolution, and that the question of whether Porter had abandoned claims against individual defendants should also be presented to the district court. 648 F.2d at 312. We fail to see the “conclusive and highly favorable decision” in this case that Judge Edwards identifies in his dissent (Dissent at 957 n.13).

47 . Id at 786.

48 . The charge upon which Jolly based a First Amendment argument when last before this court (refusal to discuss his newsletter publication) was found by the SSA on remand to be unnecessary to the agency’s action: “[R]emoval is warranted without consideration of that specification.” J.A. at 58. Whether for this or for other reasons, the First Amendment issue, as Judge Edwards notes, is not now before this court. There is therefore no reason to invoke the balancing test described in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and referred to in the Fifth Circuit’s guidance to the district court in Porter I. 562 F.2d at 773.

49 . Id. at 777.