Lula A. McGlasson v. The United States

397 F.2d 303, 184 Ct. Cl. 542, 1968 U.S. Ct. Cl. LEXIS 127

Opinions

OPINION

COWEN, Chief Judge, LARAMORE, Judge, and DAVIS, Judge,

delivered the following opinion and announced the judgment of the court:

Footnotes

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This case was referred to former Trial Commissioner Paul H. MeMurray, pursuant to the order of reference and Rule 57(a), with directions to make findings of fact and recommendations for conclusion of law. The commissioner did so in an opinion and report filed on February 28, 1967. Exceptions to the commissioner’s opinion and report were filed by plaintiff and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since we are in agreement with the opinion, findings, and recommendation of the •commissioner, as we have modified them, we adopt the same as modified as the basis for our concurrence in the judgment that the plaintiff is not entitled to recover and that the petition is dismissed.

Commissioner McMurray’s opinion, as we have modified it, is as follows: Plaintiff brings this action to recover back pay accruing during the period of time in which she was allegedly unlawfully separated from her classified civil service position. She must be denied recovery because the action of the Civil Service Commission was based upon substantial evidence and no material procedural errors are involved.

Plaintiff, a veteran, is a preference eligible under the Veterans’ Preference Act of 1944, 58 Stat. 387, as amended, 5 U.S.C. §§ 851-869 (1964). She commenced her Federal service on March 13, 1942. On April 18, 1951, she began employment with the United States Air Force Accounting and Finance Center (hereafter Finance Center), and was a GS-3 clerk-typist at the time of her separation. Early in 1959 the Finance Center filed with the CSC an application for plaintiff’s disability retirement.

Dr. Tish, Chief of the CSC Disability Retirement Section, Medical Division, informed plaintiff that the medical officers of the CSC felt that she was “totally disabled for useful and efficient service as a clerk-typist,”¹ and that her case would be adjudicated on the available evidence in her record file, including any evidence presented by her within a specified time. After receiving a request for a hearing from plaintiff’s attorney, Dr. Tish informed plaintiff that no decision had been reached in her case but she would be given a psychiatric examination. His letter informed her that a determination would be made following the examination and receipt of the psychiatrist’s report. Plaintiff was told that there was no need for a hearing but she had a right to appeal from an unfavorable decision.

Dr. Tish made arrangements for plaintiff to be examined in Denver, Colorado. He sent an Authorization for Medical Examination, CSC Form 3135 (hereafter Form 3135), to the Veterans Administration Regional Office in Denver. The form was used to authorize a medical examination of plaintiff for consideration in connection with possible Civil Service disability retirement. Form 3135 listed plaintiff’s position, gave her birthdate, stated that the application was filed against her wishes, and described her disability as “Schizophrenic reaction, Paranoid type.”² Form 3135 directed that a general medical examination and a neuropsychiatric examination of plaintiff be accomplished. The following paragraph was printed on Form 3135:

Please report your findings, diagnosis, and conclusion on the accompanying medical report form, and conclude your report of examination by stating whether the above person IS or IS NOT totally disabled for useful and efficient service in the position above noted, and whether or not the disabilities found are due to venereal disease, alcoholism, or any vicious habits. Your reasons for a conclusion of “total” disability should be fully stated.

Dr. Tish and medical officers under his supervision evaluate all disability retirement claims initiated with respect to employees in the Federal service and use their own judgment as to the type and extent of examinations required and the information deemed necessary for a proper determination.

Plaintiff reported, as directed, to the Veterans Administration Hospital on May 1, 1959, and a nurse’s aide, Mrs. Montano, recorded plaintiff's weight, height and other measurements. A Dr. Masten performed a general medical examination of plaintiff. A psychiatrist, Dr. Lewis C. Overholt, performed an examination of plaintiff which consisted of a neurological examination and a psychiatric examination.³ Dr. Overholt recommended psychological testing which was later conducted by a psychologist.

Prior to his examination of plaintiff Dr. Overholt had no information concerning plaintiff other than the data listed on Form 3135. When Dr. Overholt made his report the only additional information concerning plaintiff were his notes taken during the examination. Before the data concerning plaintiff was sent to the CSC, Dr. Overholt saw the report of the psychologist, but did not alter his report. Dr. Overholt’s report consisted of two pages divided into sections entitled “History,” “Neurological Examination” and “Mental Status.” His diagnoses were as follows:

Schizophrenic reaction, chronic, undifferentiated type, in partial remission. External precipitating stress, and predisposition not determined at this examination. Impairment, severe. Competent.⁴

On the day he examined plaintiff Dr. Masten prepared a report on CSC Form 3178, Report of Medical Examination for Civil Service Retirement (hereafter Form 3178), for the primary purpose of recording the report of a general medical examination. Instructions on this form were:

The examiner will please make full report on each complaint or disability that is alleged or found on examina tion. If total disability for useful and efficient service is established, please show when such total disability began. See also instructions on Form 3135.

Near the end of Form 3178 is space for the medical examiner’s conclusion. Prior to the time the data was reviewed by the CSC some individual, identity unknown, typed the following statement in the space provided:

Patient is totally disabled.

Disabilities are not due to venereal disease, alcoholism or vicious habits.

Neither Dr. Masten nor Dr. Overholt is responsible for that conclusion, and there is no evidence in the record which indicates to whom such responsibility can be attributed. Dr. Masten recorded nothing pertaining to plaintiff’s psychiatric condition, but referred to Dr. Overholt’s report. Dr. Masten’s only diagnosis after conducting a physical examination of plaintiff was halitosis. It should be noted that the unexplained statement typed on Form 3178 is phrased in terms of the directive paragraph at the bottom of the form.

The data gathered by the hospital was sent to the Disability Retirement Section of the CSC and was reviewed by Dr. Tish and another doctor in accordance with usual procedure. Dr. Tish testified that each doctor independently concluded that plaintiff was “totally disabled for useful and efficient service” as a clerk-typist because of a “nervous disorder * * * schizophrenia.” Despite the fact that the medical officers had various reports before them and that at least one of them assumed that the conclusion on Form 3178 was Dr. Masten’s response to the directions on Forms 3178 and 3135, their determination or conclusion of disability was not, as explained below, influenced by the statement on Form. 3178. They regard the determination of disability for retirement purposes to be the sole responsibility of the CSC and not that of the examining doctors.

Neither the psychologist’s report nor the diagnosis of the psychiatrist, Dr. Overholt, were conclusive with respect to determination of disability because Dr. Tish and medical officers in his section look to the substance or detail in such reports when evaluating disability retirement claims. In view of the undisputed testimony of Dr. Tish that no more information than the title “clerk-typist” was required in order to evaluate plaintiff’s suitability for the particular position, one can conclude that a more detailed description was not necessary.

When plaintiff was informed of the decision to retire her, she appealed, and Dr. Tish reviewed the determination of disability retirement arrived at in his division. Another reviewer considered the ease after the review by Dr. Tish, and the case was then submitted to the Board of Appeals and Review of the CSC which affirmed the proposed involuntary disability retirement. In due course plaintiff was retired on an annuity.

Plaintiff does not attack and, as the discussion below on the scope of judicial review indicates, probably cannot successfully attack the substance of the psychiatric report on which the CSC based its determination. Plaintiff's contentions may be summarized as follows: (1) the CSC improperly denied plaintiff a hearing; (2) the motives of the Finance Center tainted the entire procedure; (3) the CSC violated a regulation requiring that the examining doctors be furnished certain information; (4) directions listed on Form 3135 were violated; (5) the mysterious statement in the conclusion space on Form 3178 prejudiced plaintiff; and (6) Dr. Tish could not properly review his own decision. These contentions will be discussed in the above order. First, however, it is appropriate to recognize that the scope of review in cases of involuntary disability retirement is limited by the Civil Service Retirement Act § 16 (c), 70 Stat. 758 (1956); 5 U.S.C. § 2266(c) (1964):

Questions of dependency and disability * * * shall be determined by the Commission and its decisions with respect to such matters shall be final and conclusive and shall not be subject to review. * * *

In applying that provision this court has followed decisions of the United States Court of Appeals for the District of Columbia Circuit, stating in Gaines v. United States, 158 Ct.Cl. 497, 501-502 (1962), cert, denied, 871 U.S. 936, 83 S.Ct. 309, 9 L.Ed.2d 271 (1964), as follows:

* * * it is clear that the scope of judicial review in connection with a disability retirement is very narrow. The Civil Service Retirement Act empowers the Commission to administer the retirement provisions and to issue the necessary and proper rules and regulations (5 U.S.C. § 2266); the Act also provides that questions of disability “shall be determined by the Commission and its decisions with respect to such matters shall be final and conclusive and shall not be subject to review” (5 U.S.C. § 2266(c)). The Court of Appeals for the District of Columbia Circuit has already indicated the limited nature of possible court scrutiny in disability retirement cases. Ellmore v. Brucker, [99 U.S. App.D.C. 1], 236 F.2d 734, 736-737, cert, denied, 352 U.S. 955, [77 S.Ct. 329, 1 L.Ed.2d 244] ; Murphy v. Wilson, [99 U.S.App.D.C. 4], 236 F.2d 737; Smith v. Dulles, [99 U.S.App.D. C. 6], 236 F.2d 739, 740, 742, cert, denied, 352 U.S. 955, [77 S.Ct. 329, 1 L. Ed.2d 244], At most, a court can set the Commission’s determination aside (or refuse to recognize it as valid) only where there has been a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error “going to the heart of the administrative determination.”

Errors alleged by plaintiff fall short of the standards for reversal on judicial review.

The Finance Center had statutory authority to file application with the CSC requesting plaintiff’s retirement on the ground of disability. 41 Stat. 614 (1920), as amended, 5 U.S.C. § 2257(a) (1964). The CSC obviously processed the application as one for involuntary retirement on disability. Plaintiff contends that she should have been granted a hearing by the CSC. There is no statute or regulation providing a right to a hearing in disability retirement cases. The rule is clear that removal proceedings arising under the Retirement Act need not comply with the procedural requirements of the Veterans’ Preference Act of 1944 and the LloydLaFollette Act. Kleinfelter v. United States, 318 F.2d 929, 932, 162 Ct.Cl. 88, 93-94 (1963).⁵ This court’s denial of a motion for summary judgment coupled with an order directing trial on the limited issue of Dr. Overholt’s examination indicates that it has reached the same conclusion.

Plaintiff’s brief discusses the motivation of the Finance Center in filing the application. There is nothing to show that the CSC acted in bad faith; accordingly, good faith is presumed. Knotts v. United States, 121 F.Supp. 630, 128 Ct.Cl. 489 (1954). The motives of the Finance Center are immaterial to the action of the CSC. Smith v. Dulles, 99 U.S. App.D.C. 6, 236 F.2d 739, 741 (1956), cert, denied, 352 U.S. 955, 77 S.Ct. 329, 1 L.Ed.2d 244. The court’s order remanding this case to the commissioner after denial of the motion for summary judgment would seem to foreclose this issue since plaintiff had forcefully presented it to the court in pursuance of the summary motion.

Plaintiff contends that Dr. Overholt should have been furnished background information by the CSC. She points to a CSC regulation (21 Fed.Reg. 8262, 8263-8264 (1956), 5 C.F.R. § 29.12 (a) (4) (1961)):'

Where the nature of the disability is reported to be a mental condition or other condition of such a nature that a prudent physican would hesitate to inform an individual found to be suffering from such a condition of its exact nature and probable outcome, a complete summary of the medical evidence in his case, including copy of the resume of the reported behavior irregularities or manifestations of unsatisfactory service which is ordinarily furnished as background factual evidence to government medical facilities or psychiatrists or other physicians who conduct the official retirement medical examination, shall be made available for review only by a duly licensed physician designated in writing for that purpose by the individual concerned. [Emphasis supplied.]

This paragraph is one of 13 paragraphs dealing with the circumstances and procedures under which records and documents may be disclosed to interested persons.

Plaintiff relies on the emphasized portion of the above-quoted provision to sustain her contention and cites several Supreme Court decisions to support the proposition that permissive language in a regulation should be given mandatory interpretation when warranted by the context. The Supreme Court in Farmers’ & Merchants’ Bank of Monroe, N. C. v. Federal Reserve Bank of Richmond Va., 262 U.S. 649„ 662-663, 43 S.Ct. 651, 656, 67 L.Ed. 1157 (1923) stated “that is where the context, or the subject-matter, compels such construction.” Clearly the context of the phrase on which plaintiff relies compels the conclusion that the phrase is permissive, if not merely descriptive of customary practice. Plaintiff could prevail if the public interest or an individual right called for a mandatory construction. Supervisors v. United States, 71 U.S. (4 Wall.) 435, 18 L.Ed. 419 (1866). Plaintiff says the value of such background information is apparent, and thus seems to contend that an examination made, reported or evaluated without the benefit of such information is insufficient on which to base a proper determination of the degree of disability. Medical officers in the retirement division of the CSC use their own judgment with respect to the nature and extent of the examination and information on which to base their determination; they do not interpret § 29.12(a) (4) as plaintiff does.

It is not the function of this court to prescribe the nature or extent of information which the CSC will furnish examining doctors in order to assist them in making the required medical examination and report.

The CSC is “authorized and directed * * * to make such rules and regulations as may be necessary and proper” to administer the Retirement Act. Civil Service Retirement Act § 16(a), 70 Stat. 758 (1956), 5 U.S.C. § 2266(a) (1964). Plaintiff contends that the paragraph of directions in Form 3135 must be complied with or the entire process is invalid. The language of that paragraph is in the form of a request to non-Civil-Service-Commission personnel. That fact in itself need not be determinative. See discussion from Green-way v. United States, 175 Ct.Cl. 350, cert, denied, 385 U.S. 881, 87 S.Ct. 167, 17 L.Ed.2d 108 (1966) which provides the answer, stating in footnote 5:

* * * Nor is there any indication that the contents thereof [a handbook] were ever promulgated in the form of a regulation. Informal memoranda or documents of this kind seemingly directed only .to internal management do not confer substantive rights on employees to recover lost salary whenever some suggestion or working rule contained therein is not observed by a supervisor. DeBusk v. United States, 132 Ct.Cl. 790, 795-796 (1955), cert, denied, 350 U.S. 988, [76 S.Ct. 474, 100 L.Ed. 854] (1956). Even a deviation from a formal regulation does not vest rights in third parties when the regulation is issued merely for the guidance of certain agency personnel. Centex Construction Co. v. United States, 162 Ct.Cl. 211 (1963).

The Centex case, ibid., held that plaintiff lacked standing to attack contract regulations designed for the benefit of the Government. The disputed language in Form 3135 is not a regulation. Even if it were a regulation, by its terms it is directed to the data-gathering process and not to procedural rights conferred upon plaintiff. The object of the clause in Form 3135 is to solicit an opinion as to whether or not plaintiff is totally disabled. Such opinion is relatively unimportant to the decision of the CSC because the CSC regards itself as alone having the authority to make a determination of disability; and it may not be argued that Dr. Overholt could determine whether plaintiff was subject to retirement. 70 Stat. 758 (1956), 5 U.S. C. § 2266(c) (1964). If the failure to comply with the clause is in error, it is a harmless and nonp re judicial error. Spector v. United States, 165 Ct.Cl. 33 (1964), cert, denied, 379 U.S. 966, 85 S.Ct. 659, 13 L.Ed.2d 560 (1965); Putschoegl v. United States, 165 Ct.Cl. 65 (1964).

Plaintiff cites several cases to sustain a contention that the clause on Form 3135 is binding on the CSC. In each case cited an administrative authority promulgated the material in issue for the purpose of providing the individual with certain rights or benefits. In Daub v. United States, 292 F.2d 895, 154 Ct. Cl. 434 (1961), the court dealt with a table of penalities contained in a regulation. The table itself was suggestive and not binding or conclusive. The regulation required that penalties be applied in accordance with the spirit of fairness expressed therein. The court held that the spirit of fairness was violated by the actual penalty imposed so as to constitute a “gross misapplication of the regulation.” Id. at 437, 292 F.2d at 897. There is no analogous situation here requiring a mandatory construction of the clause in question.

A decision based on arbitrary or capricious evidence may well be an arbitrary or capricious decision. The statement in the conclusion space on Form 3178 is obviously an arbitrary statement if it was not merely a clerical error. Had such statement been accepted by the CSC, thereby influencing the administrative determination, the decision to retire plaintiff would not stand. The statement, however, was completely immaterial to the decision. As such, it was not harmful to plaintiff’s cause. Spec-tor, supra, and Putschoegl, supra. See Gaines, supra; and Knotts, supra. In the particular context, the egregious error in typing in the “conclusion” did not affect the determination by the CSC of plaintiff’s ease. In particular, it is significant that this “conclusion” appeared only on the report of Dr. Masten, who was not a psychiatrist, did not purport to give plaintiff a psychiatric examination, and found her only physical defect to be halitosis. Dr. Tish did not consider this “conclusion” a psychiatric evaluation and paid no attention to it.

A review of the evidence in the record, including the full reports of Dr. Overholt, the psychiatrist, and Dr. Herring, the psychologist, as well as other material before the CSC, shows that there was substantial evidence to support the CSC’s determination that plaintiff was totally disabled. Also Dr. Tish’s testimony, read as a whole, shows that he considered the substance and details of these reports, together with the other materials before him, and that the CSC performed the duty entrusted to it. In the light of the narrow limits on our power to review that determination, we cannot say that there was any error in evaluating that evidence “going to the heart of the administrative determination.” See Scroggins v. United States, Ct.Cl., 397 F.2d 295 decided this day.

Plaintiff contends that lack of data regarding the position of clerk-typist precluded the CSC from fairly judging her suitability for the job. In view of the testimony of Dr. Tish that this particular position could be evaluated without detailed knowledge of plaintiff’s duties, it cannot be said that such evaluation was arbitrary or capricious or that plaintiff was in any way prejudiced. This issue is, therefore, subject to the same disposition as the contention that the statement in the conclusion space on Form 3178 affected the disability determination.

Plaintiff’s last contention is that Dr. Tish should not be permitted to review his own decision of total disability. Had Dr. Tish been the only person reviewing his decision or had the final decision rested with him, there might be merit to such contention. The case was merely resubmitted to him to give him an opportunity to review the decision before it was considered by the Board of Appeals and Review of CSC for final administrative action.

For the foregoing reasons plaintiff is not entitled to recover⁶ and the petition should be dismissed.

The concurring opinion of NICHOLS, Judge, and the dissenting opinion of SKELTON, Judge, in which DURFEE, Judge, joins, follow this opinion.

1

. This quotation is from one of defendant’s exhibits attached to its motion for summary judgment. These exhibits were not introduced into evidence at the trial, but neither party objects, to the court’s consideration of these exhibits as part of the trial record.

2

. Dr. Tish testified that this was “merely a guide to the psychiatrist as to what was the alleged condition”, and that is what it clearly appears to be.

3

. By order the Court of Claims denied a motion for summary judgment and directed “further proceedings on the single question of whether or not the plaintiff had a medical examination by Dr. Lewis C. Overholt, Jr., and, if so, any diagnosis resulting therefrom." Later a motion to expand the scope of the commissioner’s report was granted by the court, subject to presentation of “such further evidence as may be considered necessary” by both parties.

4

. Dr. Tish testified that the word “Competent” “only means that she is competent to handle, to function. That is all we are interested in from the standpoint of the annuity funds that we pay her.”

5

. The court cited Ellmore v. Brucker, 99 U.S.App.D.C. 1, 236 F.2d 734 (1956), cert, denied, 352 U.S. 955, 77 S.Ct. 329, 1 L.Ed.2d 244; and Murphy v. Wilson, 99 U.S.App.D.C. 4, 236 F.2d 737 (1956), cert, denied, 352 U.S. 954, 77 S.Ct. 326, 1 D.Ed.2d 243. In addition to Kleinfelter, supra, see Smith v. Dulles, 99 U.S.App. D.C. 6, 236 F.2d 739, 740 (1956), cert, denied, 352 U.S. 955, 77 S.Ct. 329, 1 L. Ed.2d 244, which dealt with the issue of the employee’s right to a hearing.

6

. Having concluded that plaintiff’s contentions lack merit there is no need to discuss defendant’s contention that plaintiff failed to show she was ready, willing and able to resume her duties. This defense focuses on her ability to perform her work and relies on Dr. Overholt’s report as evidence of inability. Plaintiff offered no evidence to show she had ability, but some of the exhibits attached to her brief opposing defendant’s motion for summary judgment bear on this, point. Defendant first raised this issue late in the trial by way of an offer of proof which was refused.