(dissenting).
Under the Army’s Civilian Personnel Regulations, plaintiff’s ease was heard by a grievance committee “established at the installation level to make findings of fact, hear and evaluate evidence, and make recommendations to the commander as to appropriate disposition of individual cases.” Having thus created a hearing-type remedy for its employees, the Army was bound to follow the fair procedure implicit in that grant, even though a more summary disposition was permitted by the Lloyd LaFollette Act. 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). Inherent in the concept of a decision based on an adversary hearing, especially an evidentiary hearing, is the fundamental premise that one of the adversaries will not make secret, ex parte, recommendations to the deciding officer or tribunal. See Sangamon Valley Television Corp. v. United States, 106 U.S.App.D.C. 30, 269 F.2d 221, 224-225 (1959), 111 U.S.App.D.C. 113, 294 F.2d 742 (1961); Massachusetts Bay Telecasters, Inc. v. Federal Communications Commission, 104 U.S.App.D.C. 226, 261 F.2d 55, 66 (1958). In an adversary proceeding there can hardly be a graver incursion upon fairness than to permit trial counsel for one of the parties to communicate his arguments privately to the decider. A persistent theme of modern administrative law is the separation, in an adversary proceeding, of the deciding tribunal from the ex parte views of the attorneys who are the Government’s advocates in the particular case. See Section 5(c) of the Administrative Procedure Act, 60 Stat. 239, 240, 5 U.S.C. § 1004(c); Section 4(a) of the National Labor Relations Act, as amended, 61 Stat. 139, 29 U.S.C. § 154(a); Section 5(d) (8) of the Communications Act of 1934, as amended, 75 Stat. 421, 47 U.S.C. § 155(d) (8). The Army’s regulations must be taken to incorporate this basic standard of fair practice.1
*807I am satisfied from the materials before us on these motions for summary judgment that this principle was squarely violated in plaintiff’s case. Counsel for the employing agency before the grievance committee was Mr. Kostos, a member of the office of the general counsel of the agency. He appeared and tried the case for management. After completion of the grievance hearing, the general counsel (Mr. Wolverton) signed a detailed legal memorandum to General Anderson, the executive director of the agency and commander of the quartermaster depot, recommending denial of the grievance, “notwithstanding the recommendation of the Agency’s Grievance Committee.” Mr. Wolverton wrote to plaintiff’s present counsel on May 8,1964, that this “legal opinion” “was either prepared by Mr. Kostos or that Mr. Kostos participated in its preparation.” On the office copy of General Anderson’s decision (of December 30, 1959) rejecting plaintiff’s grievance appear the handwritten initials of Mr. Kostos (and of others). Mr. Wolverton has signed an affidavit that the general’s letter “was coordinated” with Mr. Kostos (among others). That letter-of-decision reads closely upon the legal memorandum submitted by the general counsel. From all this I think it clearly inferable that Mr. Kostos participated in a significant fashion in the ultimate process of decision by the depot commander. He made recommendations to the general and he had a hand in the writing of the general’s decision. The defendant does not deny those facts, and there is no need for a trial to establish them.
Participation of this type by adversary counsel vitiates the decision to remove plaintiff. No doubt General Anderson made up his own mind, but he made it up on the basis, at least in part, of ex parte views and communications from a lawyer with an adversary stake in the outcome and whose position had been rejected by the hearing board. That is enough of a taint. Of course, the commander had a right to private briefing and assistance from lawyers, but he should have been insulated from the one lawyer who tried the case for management. There were others who could properly have been asked for help, but due process forbade that role from being assigned to the same interested attorney who had been the Government’s advocate at the hearing. Especially was this so in a case in which that lawyer had failed to convince the three committee members who presided at the hearing and whose recommendation he was asking the commander to reverse.2
Even if I were fully prepared to join in the court’s finding that the charges against plaintiff were all adequately sustained, this major departure from fair procedure would move me to vote to invalidate his dismissal and for judgment in his favor. As Mr. Justice Brandéis said, and Mr. Justice Frankfurter often repeated, “in the development of our liberty insistence upon procedural regularity has been a large factor.” Burdeau v. McDowell, 256 U.S. 465, 477, 41 S.Ct. 574, 576, 65 L.Ed. 1048, 13 A.L.R. 1159 (1921) (Brandeis J., dissenting); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 164, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). The ultimate merits of plaintiff’s dismissal cannot hide the deprivation of fair procedure he urges upon us. Cf. Garrott v. United States, Ct.Cl., 340 F.2d 615, 621-622, decided Jan. 22,1965.
I am not ready, however, to join in the court’s discussion of the merits of the removal. It is a close question whether there was sufficient substantial evidence to sustain the bribery charge, and I dp not, because I need not, reach that difficult issue. I think that the other two *808charges, the minor counts, were not sustained. In upholding the allegation of -“undue familiarity” on the basis of three widely-separated non-business telephone calls, the court is binding a quartermaster inspector to an absolute standard of non-fraternization which has not been applied to courts, other tribunals, or high executive or administrative officers. The record shows, in my opinion, that this charge is trivial. The evidence also fails to support, with respect to the count relating to falsification of travel vouchers, the administrative finding that plaintiff deliberately falsified. In any event, the ex parte participation by the Government attorney in the administrative decision makes it impossible, in my view, to apply the “substantial evidence” test to this case. That test presupposes that the decision was arrived at by fair process. Cf. St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 73, 56 S.Ct. 720, 80 L.Ed. 1033 (1936) (Brandéis, J., concurring).
. As the court points out, the regulation specifically embodied a comparable standard when it prohibited an individual who had participated in the preparation of the *807charges or the decision to take action against the employee from sitting on a grievance committee considering a grievance arising from the same action.
. There is no suggestion of conscious bias on the part of Mr. Kostos, or that he did not do his best to be fair, but all lawyers know the unconscious and subconscious influence of the advocate’s zeal.