information and Charge III, except for Specification (a) relating to Maurice Kowal, contains several allegations that the plaintiff falsely charged that a management official of the Park Service threatened to kill him. A charge of violating the confidentiality of department records is not protected by the standards of Sullivan and Swaaley. Further, it would be open to the Civil Service Commission to find that the plaintiff's charge of an alleged threat on his life had been made "with knowledge of its falsity or with reckless disregard of its truth." Such a statement also would not be protected under Sullivan and Swaaley. Both the second and third charges therefore are of a most serious nature. The Court assumes without deciding that these latter charges, if sustained on the record after appropriate review by the Civil Service Commission, would form an appropriate and sufficient basis for the removal of an employee from his civil service position.
In light of these factors the Court has determined that the disposition of the present action should take account of the errors in the Civil Service Commission's evaluation of Charge I, as well as the substantial grounds for removal alleged in Charges II and III. While denying relief to the plaintiff, the Court will order the remand of the present action to the Civil Service Commission to determine (1) whether the record supports Charge I as originally framed by the National Park Service, and (2) whether if Charge I is found unsupported, Charge II and/or III, on the record before it, would provide a sufficient basis for the plaintiff's removal "to promote the efficiency of the service" under 5 U.S.C. § 7501.
This action is necessary because it is not clear from the present record that the Civil Service Commission would have rested its approval of plaintiff's dismissal on Charges II and III alone. Therefore, it is not possible for this Court to conclude that the error in regard to Charge I was harmless. In Meehan v. Macy, 129 U.S. App. D.C. 217, 392 F.2d 822 (1968), the Court of Appeals for the District of Columbia, after finding invalid two of three grounds on which the employing agency and Civil Service Commission relied to remove an employee from his position, ordered the remand of the action to the District Court "pending further consideration" by the employing agency and the Civil Service Commission.
The Court of Appeals ordered this remand and reconsideration because it was "unclear whether the three charges were deemed by the agency and the Civil Service Commission to constitute separate or cumulative grounds for discharge." 392 F.2d at 839. Here, as in Meehan v. Macy, it is not possible to consider the errors concerning Charge I as harmless -- since there is no clear indication in the record that Charges II and III "would have resulted in a discharge." 392 F.2d at 839. As stated by the Court in Braniff Airways, Inc. v. C.A.B., 126 U.S. App. D.C. 399, 379 F.2d 453 (1967) "* * * an error cannot be dismissed as 'harmless' without taking into account the limited ability of a court to assume as a judicial function, even for the purpose of affirmance, the distinctive discretion assigned to the agency." 379 F.2d at 465-466.
An Order will be entered in accordance with this Opinion.