concurring in part and dissenting in part:
I agree with the majority that the Public Health Service (PHS) failed to abide by its own regulations in dismissing appellant and that this failure requires reversal; I also agree with Judge Tamm that the grant of summary judgment with respect to appellant’s first amendment claim was improper. However, because I conclude that appellant did have a protected “property interest” in his continued employment with PHS, I must respectfully dissent from that portion of the majority opinion which holds that appellant was not entitled to the protections of due process when his employment was terminated.
I.
In order to have a “property interest” in employment, an individual must have “more than a unilateral expectation” that his employment will continue. “He must, instead, have a legitimate claim of entitlement to it.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Where an individual’s job is “terminable at the will” of his employer, “irrespective of the quality of [the employee’s] performance”, no such entitlement exists. Bishop v. Wood, 426 U.S. 341, 345 n. 9, 96 S.Ct. 2074, 2078, 48 L.Ed.2d 684 (1976). Where, however, an employee may be discharged only for “cause,” that employee’s expectation of continued employment does constitute a “property interest” and is entitled to the protections of the Fifth Amendment. Arnett v. Kennedy, 416 U.S. 134, 166, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) *204(opinion of Powell, J.); Bishop v. Wood, supra; Codd v. Velger, 429 U.S. 624, 641, 97 S.Ct. 882, 891, 51 L.Ed.2d 92 (1977) (Stevens, J., dissenting).
Appellant served as a Reserve Commissioned Officer in the PHS. The statute governing the tenure of PHS officers provides that “[r]eserve commissions shall be for an indefinite period and may be terminated at any time, as the President may direct.” 42 U.S.C. § 209(a)(2) (emphasis added). The President has, in turn, delegated to the Secretary of HEW his authority to terminate reserve commissions and to prescribe regulations governing such terminations. Exec. Order No. 11,140, 3 C.F.R. 177 (1964-1965 Comp.), reprinted in 42 U.S.C. § 202 app. at 9533 (1970). While Reserve Officers could thus be said to serve “at the pleasure” of the President, Maj. Op. at - of 183 U.S.App.D.C., at 709 of 562 F.2d, n. 23, the Executive Order makes clear that it is the President’s “pleasure” that such offices be terminated only in accordance with the regulations promulgated by the Secretary of HEW. And it is, of course, well settled that an agency’s own regulations are binding upon it,1 and that regulations, as well as statutes, may give rise to a “property interest” in employment. See, e. g., Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); and Board of Regents v. Roth, supra. Indeed, as the majority points out, Maj. Op. at 190 of 183 U.S.App.D.C., at 709 of 562 F.2d, n. 23, both Roth and Perry make clear that even informal “rules and understandings” may give rise to such an interest.
Accordingly, in order to determine whether Reserve Commissioned Officers of the PHS have a property interest in their employment, we must look to the PHS’ personnel regulations, found at 42 C.F.R. § 21.1 et seq. and in the PHS “Commissioned Corps Personnel Manual.” These regulations permit the “involuntary separation” of a Reserve Commissioned Officer in only three situations: 1) where the officer’s performance is “marginal or substandard”; 2 2) where the officer has failed to be promoted within a specified period of time;3 and 3) where the officer has been found guilty of one of a specified list of offenses (such as “willful disobedience,” “negligence,” “excessive use of drugs or intoxicating liquors,” or the like).4 It seems self-evident that separation in any of these three situations would constitute separation for “cause.” And since this is the only kind of separation contemplated by the regulations, I conclude that Reserve Officers do have a protected “property interest” in their employment.
The majority’s arguments to the contrary are unpersuasive. The majority quotes one paragraph from the “Commissioned Corps Personnel Manual”5 and then concludes, *205apparently solely on the basis of that paragraph’s alleged ambiguity, that “the PHS personnel regulations [do not give] rise to an implied promise that a reserve commissioned officer would only be terminated for ‘cause’.” Maj. Op. at 191 of 183 U.S.App. D.C., at 710 of 562 F.2d, n. 23. However, when the paragraph in question is read in context, this conclusion is insupportable. This paragraph is contained within a section of the Personnel Manual entitled “Personnel INSTRUCTION 6 — Involuntary Termination of Reserve Corps Officers’ Commissions for Marginal or Sub-Standard Performance” (emphasis added). Section A.l of this Instruction defines its “purpose and scope”: “This instruction states the policy and procedures under which the commissions of Reserve Corps officers will be terminated, without their consent, because of marginal or substandard performance. ” Section C. of the Instruction is entitled “policy”. Subsection C.l. states flatly that “[l]ess than satisfactory performance will require termination of appointment.” Subsection C.2. — the passage upon which the majority relies — merely indicates that this harsh per se rule should be tempered somewhat. This paragraph indicates that even where an individual’s performance has been unsatisfactory, he need not necessarily be separated from the Service, at least in the first instance. The paragraph clearly does not suggest that an individual whose performance has been satisfactory may nonetheless be dismissed. Thus, § C.2. is fully consistent with the rest of “Personnel Instruction 6” and with the other regulations governing the tenure of Reserve Commissioned Officers. Taken together, these regulations indicate that it is the policy of the PHS to dismiss such officers only for “cause”; moreover, even where “cause” is present, dismissal will not be automatic.
II.
Having determined that appellant could only be dismissed for cause and that he was therefore entitled to the protections of due process, “the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Specifically, we must decide whether the procedures set forth in the PHS regulations satisfy the minimum requirements of the due process clause.6 I conclude that they do not.
Under these regulations, an officer whose performance is considered “marginal or sub-standard” is entitled to notice of the fact that the Service is considering his dismissal and of the specific charges against him; he is then entitled to submit, in writing, his response to those charges. The charges, and the officer’s response to them, are reviewed by an “Involuntary Separation Board,” which then recommends to the Director of the Commissioned Personnel Operations Division whether the officer should be dismissed. The Director makes the “final determination;” if he decides that the officer should be dismissed, the officer is entitled to notice of the “specific basis” for this action. The officer may then request, in writing, that the Surgeon General (later *206changed to the Assistant Secretary for Health) review this “final determination.”
In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), the Supreme Court upheld the discharge of a non-probationary federal employee. The employee in Kennedy was entitled to pre-termination procedures similar to those described above. In addition, however, the employee in Kennedy was entitled to a post-termination trial-type, evidentiary hearing.
Six justices in Kennedy agreed that the employee in that case did have a “property interest” in his job; those six justices also agreed that “at some time” before such an individual is “finally deprived of his property interests,” he is entitled to “some kind of hearing.” 416 U.S. at 178, 94 S.Ct. 1633 (White, J., concurring and dissenting). Three of those justices concluded that this requirement was satisfied by a post -termination evidentiary hearing coupled with notice and an opportunity to present written responses to charges prior to termination; the other three of those justices, however, would have required an evidentiary hearing prior to the employee’s termination. In other words, of the six justices in Kennedy who agreed that due process was implicated by the employee’s dismissal, all agreed that that employee was entitled to a trial-type evidentiary hearing, “at some time.” They differed primarily about when such a hearing was required to be held.7
While the guidance provided by the five separate opinions in Kennedy may not be “altogether pellucid,”8 I conclude that appellant here was entitled to a trial-type, evidentiary hearing “at some time” — i. e., either before or after his termination.9 Since the PHS regulations make no provision for such a hearing, they do not, in my view, satisfy the minimum requirements of due process.
As the Supreme Court has recently observed, one factor to be considered in determining what process is actually “due” in any given case is “the nature of the relevant inquiry.” Mathews v. Eldridge, 424 U.S. 319, 343, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976). We must consider, in other words, the extent to which the more limited sort of hearing provided by the PHS regulation poses a “risk of an erroneous deprivation” of appellant’s interests, and “the probable value, if any, of additional or substitute procedural safeguards . . Id. at 335, 96 S.Ct. at 903.10 In my view, the *207“nature of the . . . inquiry in the present ease makes an evidentiary hearing essential. At issue here is the quality of an individual employee’s performance. Evaluations of the quality of someone’s work are necessarily highly subjective. While such evaluations can, of course, be reduced to writing, testimonial evidence is likely to prove far more reliable; without the possibility of considering demeanor and credibility, the decisionmaker may lack any rational basis for resolving conflicts in opinion. Moreover, where, as here, the employee argues that the ostensible basis for his dismissal (i. e., inadequate performance) is merely a cover, and that he is “really” being dismissed for other, illegitimate reasons (i. e., his exercise of his First Amendment rights), cross-examination of the employee’s superiors may offer the only means by which he could possibly prove his case. Compare Maj. Op. at 197-198 of 183 U.S.App.D.C., at 716-717 of 562 F.2d.11
Requiring an evidentiary hearing for employees in Mazaleski’s position should not impose an undue burden on the government, especially if such hearings are provided after the employee’s termination. Indeed, as our judgment in this case makes clear, providing an evidentiary hearing at the administrative level might actually save the government both time and money — obviously, if appellant had had the opportunity to raise his claims of improper dismissal in a trial-type evidentiary hearing at the administrative level, it is unlikely that he would have been entitled to a trial de novo of those claims in the district court. Accordingly, on remand I would direct the district court to remand this case to the agency, so that it could accord him the evidentiary hearing to which he is entitled under the due process clause.
APPENDIX A
MANUAL: Personnel
Chapter Series CC — Commissioned Corps Personnel Manual
Part 2 — Commissioned Corps Personnel Administration
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
Public Health Service
Chapter CC23 — Staffing
Sub-Chapter CC23.7 — Separation
Personnel INSTRUCTION 6 — Involuntary Termination of Reserve Corps Officers’ Commissions for Marginal or Sub-Standard Performance
Section A. Purpose and Scope
1. This Instruction states the policy .and procedures under which the commissions of Reserve Corps officers will be terminated, without their consent, because of marginal or sub-standard performance.
2. The provisions of this Instruction apply only to Reserve Corps officers with less than 20 years of service. Officers with 20 or more years of service will be considered for involuntary retirement because of substandard performance under the provisions of Personnel Instruction 3, Sub-Chapter CC23.7.
*208 Section B. Authority
Personnel Instruction 12, Chapter CC33, CCPM, delegates to the Surgeon General and Director, Commissioned Personnel Operations Division, the authority to terminate the commissions of Reserve Corps officers at any time.
Section C. Policy
1. High performance requirements for all personnel of the Service are essential. Each officer is expected to accomplish his duties effectively and fulfill his responsibility in the conduct of Service programs. Less than satisfactory performance will require termination of appointment.
2. While the maintenance of high performance standards is essential, insistence on these standards will be combined with consideration of the officer. Continuing efforts will be made to assign officers where they can best demonstrate their capabilities. Ineffective performance in one assignment can be, but will not necessarily be, a basis for termination. An officer who is ineffective in one assignment will, where practicable, be given an opportunity to demonstrate improved performance in another assignment. Termination will be considered only after the officer fails to respond to positive efforts to provide him with an opportunity to demonstrate his capabilities.
When an officer’s performance is less than satisfactory, the immediate supervisor will be responsible for—
a. discussing the performance with the officer in person,
b. determining the reasons for the unsatisfactory performance, and
c. doing everything possible to assist the officer to improve his performance.
Discussion with the officer should not be delayed until an Efficiency and Progress Report is due. It should be held at any time appropriate and sufficiently in advance to give the officer an opportunity to improve his performance before the report is due. The supervisor will then discuss his evaluation of the officer when rating him at the time the regular annual Efficiency and Progress Report is due.
4. Accurate appraisal and reporting of an officer’s performance is a basic requirement. It is imperative both to the officer and to the Service that reports be candid and objective since they are the basis for personnel actions involving assignment and promotion. While underrating the officer may affect his career, over-rating is of dubious benefit to him since it may lead to assignment and promotion with responsibilities for which he is not, in fact, qualified, thus resulting in adverse action.
Section D. Sub-Standard Performance
1. Sub-standard performance which requires consideration for termination includes any one of the following or similar conditions:
a. Downward trend in overall performance resulting in an unacceptable record or a consistent record of sub-standard service.
b. Failure to keep pace or progress with contemporaries (Example: Repeated failure to be recommended for promotion or assimilation into Regular Corps.)
c. Failure to discharge properly assignments commensurate with his grade and experience.
d. Attitudes or characteristics indicating inability or unwillingness to expend effort or to function in typical work situations commensurate with officer’s grade.
Section E. Initiating Action
1. Operating programs will be primarily responsible for initiating action when an officer’s performance is considered inadequate. Recommendations for termination of commission will be made to the Director, Commissioned Personnel *209Operations Division by the appropriate Agency Head, giving specific reason(s) and shall include all pertinent supporting facts, including but not limited to the following:
a. Summary of all past and current discussions with the officer and his superiors concerning the officer’s performance.
b. Statement regarding action to place officer in suitable assignment.
c. Current evaluation by superiors of the officer’s performance in his present assignment, including whether the responsibilities are or are not in line with the grade held.
2. Officers whose performance is considered inadequate will also be identified by the Commissioned Personnel Operations Division for possible consideration for termination based on (a) review of officer’s Efficiency and Progress Reports, and (b) recommendations of Promotion Boards when the officer fails to be recommended for promotion or assimilation into the Regular Corps.
When identified by the Commissioned Personnel Operations Division, the case will be referred to the appropriate Agency Head for review and report of findings and recommendations. Such referral will not necessarily be to precipitate adverse action but to determine what other course of action, if any, can be taken. No officer will be considered for termination until all the facts to make such a determination are obtained and reviewed. The Agency’s review and any discussions with the officer will be made with this understanding. Report and recommendation of the Agencies will give specific reasons and be supported with reports listed in paragraph 1 of this Section. These reports will be submitted whether or not the Agency recommends termination.
Section F. Review and Board Referral
1. Recommendations submitted by the Agencies will be reviewed by the Director, Commissioned Personnel Operations Division. If the facts indicate that termination should be considered, the case will be referred to an Involuntary Separation Board (see Section G). The Director, Commissioned Personnel Operations Division, will notify the officer, through channels, giving specific reason(s) for the referral. At this time, the officer may—
a. Enter into the record any pertinent facts or statement on his behalf for consideration by the Board; or
b. Resign.
Section G. Board Review
1. Involuntary Separation Boards will be appointed and convened by the Director, Commissioned Personnel Operations Division, as the need occurs. Such Boards will consist of at least three senior officers, if possible, of the same profession or category as the officer being considered for separation. No board member will be part of the administrative line which considered the case in the review by the Agency.
2. Board recommendations will be based on the material in the records submitted to them for review and any other material which each Board may find necessary to add to the record to supplement or clarify previous notations in the record. Upon conclusion of its review, the Board will submit a report to the Director, Commissioned Personnel Operations Division, stating the issues, the findings of fact, and recommendations to—
a. terminate the officer’s commission, or
b. continue officer on active duty (with or without reassignment, including demotion if officer is holding temporary grade).
Section H. Action Following Board Review
1. Upon receipt and consideration of the Board’s report and recommendation, the *210Director, Commissioned Personnel Operations Division, will make the final determination and notify the officer of the decision. Notice to the officer will be transmitted to the Agency Head for delivery to the officer by an appropriate official who will obtain and forward to the Director, Commissioned Personnel Operations Division, the officer’s written acknowledgement of its receipt.
2. If the decision is to terminate the officer’s commission, notice to the officer will include the specific basis for the action, and the date of termination (as determined between the Commissioned Personnel Operations Division and the program). To the extent possible and justified by the circumstances, the date of termination will be determined to give the officer a reasonable period within which to formulate plans.
Section I. Review by the Surgeon General
1. An officer may request a review by the Surgeon General of the decision to terminate his commission. Request must be made within 10 days from the date the officer receives notice of the decision.
2. Request for review will be made in writing giving reasons as to why he should be continued on active duty.
3. The Surgeon General’s decision will be final.
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE T.S. PRS-CC 162 8/14/69
. See, e. g., Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959).
. See Commissioned Corps Personnel Manual (Public Health Service), Sub-Chapter CC23.7 (“Separation”), Personnel Instruction 6 (“Involuntary Termination of Reserve Corps Officers’ Commissions for Marginal or Sub-Standard Performance”) [attached to this opinion as Appendix A]. Appellant was separated under the terms of this regulation.
. See id., Sub-Chapter 23.4a (“Promotion”), Personnel Guide 2 (“Failure of Permanent Promotion; Failure to Perform at Level of Temporary Grade”).
. See 42 C.F.R. § 21.261 et seq.
. See Maj. Op. at 190-193 of 183 U.S.App.D.C., at 710 of 562 F.2d, n. 23. The paragraph quoted by the majority is found at § C.2. of Personnel Instruction 6. See n. 2 supra. This paragraph reads in full:
While the maintenance of high performance standards is essential, insistence on these standards will be combined with consideration of the officer. Continuing efforts will be made to assign officers where they can best demonstrate their capabilities. Ineffective performance in one assignment can be, but will not necessarily be, a basis for termination. An officer who is ineffective in one assignment will, where practicable, be given an opportunity to demonstrate improved performance in another assignment. Termination will be considered only after the officer fails to respond to positive efforts to provide him with an opportunity to demonstrate his capabilities.
. As noted supra, the majority has held, and I agree, that the PHS has failed to abide by the procedures set forth in its own regulations; this failure would require reversal here, whether or not those regulations satisfy the requirements of due process. In my view, however, we must nonetheless reach the constitutional issue, in order to determine the appropriate remedy in this case; in other words, we must decide what procedures are required by due process, so that we may specify what “process” is “due” appellant on remand.
Moreover, as the majority appears to concede, Maj. Op. at 191 of 183 U.S.App.D.C., at 710 of 526 F.2d, n. 23, the fact that appellant’s “property interest” in his job was, in effect, created by the PHS regulations does not mean that those same regulations necessarily circumscribe the procedural protections to which appellant is entitled before he may be deprived of that “property interest.” See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). “While the State may define what is and what is not property, once having defined those rights the Constitution defines due process, and as I understand it six members of the Court are in agreement on this fundamental proposition.” Id. at 185, 94 S.Ct. at 1660 (White, J., concurring and dissenting). Cf. Ring v. Schlesinger, 164 U.S.App.D.C. 19, 502 F.2d 479 (1974), in which a panel of this court appears to adopt, at least in dicta, the position explicitly rejected by the majority in Kennedy.
. The remaining three justices, in an opinion by Justice Rehnquist, concluded that whatever property interest Kennedy had in his employment “was itself conditioned by the procedural limitations which had accompanied the grant of that interest.” 416 U.S. at 155, 94 S.Ct. at 1645.
. Friendly, Some Kind of Hearing, 123 U.Pa.L. Rev. 1267 (1975).
. See Arnett v. Kennedy, supra, 416 U.S. at 186, 94 S.Ct. at 1660 “[I]n my view a full hearing must be afforded at some juncture . .” (White, J., concurring and dissenting). While, in light of Kennedy, the government may provide such a “full hearing” following an employee’s termination, it may not, of course, dispense with the more limited pre -termination procedures provided for by both the PHS regulations at issue here and by the statute at issue in Kennedy. A post-termination trial-type evidentiary hearing is required in addition to, not instead of, pre-termination notice and opportunity to respond to charges. See Kennedy v. Robb, 547 F.2d 408 (8th Cir. 1976), pet. for cert. filed, 45 U.S.L.W. 3622 (February 26, 1977).
.The Eldridge opinion cites two other factors that should be considered in determining “the specific dictates of due process” in a given case: 1) “the private interest that will be affected by the official action;” and 2) “the Government’s interest, including . the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” 424 U.S. at 335, 96 S.Ct. at 903. As the Court’s discussion in Eldridge makes clear, these two factors are primarily relevant in determining “what process is due prior to the initial termination of benefits, pending review.” Id. at 333, 96 S.Ct. at 902 (emphasis added). They may be less helpful in determining whether particular procedural protections are required at all, either before or after the initial termination of benefits. The issue in Eldridge was whether a recipient of Social Security disability benefits was entitled to an evidentiary hearing prior to the termination of such benefits. Since the relevant Social Security regulations provided for a post -termination evidentiary hearing, the issue of whether due process required such a hearing “at some time” did not arise in that case.
. The Court in Eldridge concluded that “the nature of the relevant inquiry” in a Social Security disability case made a pre-termination, trial-type hearing less necessary than in a welfare case. The Court noted that the decision to discontinue Social Security benefits depended primarily upon “a medical assessment of the worker’s physical or mental condition . . . 424 U.S. at 343, 96 S.Ct. at 907. “This is a more sharply focused and easily documented decision than the typical determination of welfare entitlement. In the latter case, a wide variety of information may be deemed relevant, and issues of witness credibility and veracity often are critical to the decisionmaking process.” Id. at 343-44, 96 S.Ct. at 907. The decision to dismiss an employee for “marginal or sub-standard” performance obviously has far more in common with this description of a welfare termination decision, than with a decision regarding the termination of disability benefits, which “will turn, in most cases, upon ‘routine, standard, and unbiased medical reports by physician specialists.’ ” Id. at 344, 96 S.Ct. at 907 (citation omitted).