dissenting:
The court states that its trouble with the administrative decision in this case is that it does not believe there is substantial evidence to support the adverse action taken against plaintiff. Instead of disposing of the case on this basis, it ignores plaintiffs objection to a remand for the taking of additional evidence on the subject of whether plaintiff in fact committed the offenses with which he was charged and which were used as the basis for his removal from employment. The court, instead, gives defendant a second chance to prove its case.
I find this exceedingly curious because the court also states that plaintiff "never denied the charges of sexual misconduct, and neither testified on his own behalf nor produced any witnesses attesting to his innocence at his hearing.”
In view of plaintiffs unwillingness even to deny the charges against him, and in view of the doctrine that it is the exclusive province and function of administrative agencies to determine if there are sufficient grounds to discharge an employee for the efficiency of the service, and in view of the limited scope of our review only to determine if the agency decision had a rational basis in fact and was *83not arbitrary or capricious or in conflict with law, why does this not end the matter here and now? It is plaintiff who has a right to have the case reversed if the administrative decision is not supportable. The court allows the Government to waive the plaintiffs right. Plaintiff specifically objected to a remand.
Logically, it is just too late for the court to seek answers to its questions about the quality of the evidence. Either there was sufficient evidence for the action taken or there was not. Additional evidence which can be developed now on whether plaintiff committed the charged acts is irrelevant. The law requires that there be sufficient evidence at the time of the determination by administrative proceedings. Corroborating evidence which could have been presented is of no value now to such a determination. And, of course, the court errs in asking for answers to 20 questions, the clear purport of which is to insist on a degree of proof which would establish plaintiffs guilt beyond a reasonable doubt. Such a standard, applicable to support charges in a criminal case, has no place in a civilian personnel action.
I dissent.