(dissenting):
In Paroczay v. Hodges, 111 U.SApp.D.C. 362, 364 n. 4, 297 F.2d 439, 441 n. 4, we said that where a resignation has been coerced the consequent separation of a Civil Service employee constitutes a discharge. The resignation in the present case was signed in the course of an interview and interrogation by a representative of the employing agency lasting between three and four hours. Thereafter the employee through counsel wrote to the Civil Service authorities requesting that the letter be considered as an appeal from the resignation, alleging that it had been obtained through duress and coercion. She requested a formal hearing. The Deputy Regional Director on behalf of the Civil Service authorities advised counsel that resignations are not subject to appeal under the Commission’s regulations; and that “[t]hese actions are initiated by employees and are not adverse actions taken by administrative officials. * * * They are regarded *538as voluntary expressions of an employee’s desire to leave his employing agency and are binding on the employee once they are submitted. * * * In view of this, * * * we do not find any basis for accepting an appeal from the resignation action in this case. We do not, under the circumstances, plan to take any further action in this matter.” No procedure had been established by statute or regulations to review the merits of such a simulated discharge; that is, to determine the issue of voluntariness of the resignation. Accordingly, as in Rich v. Mitchell1 and Paroczay, where the resignations were also attacked as coerced, the employee sought relief in the District Court. In Rich, on the basis of the data before the District Court, we affirmed its grant of summary judgment for the government officials. In Paroczay, however, where the District Court decided the issue of voluntariness on affidavits, we reversed a like summary judgment because there was a genuine issue of material fact and the' defendant officials were not entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P. On our remand the District Court in turn remanded to the Commission for “further administrative proceedings, including an oral hearing” not inconsistent with the opinion of this court. The Commission then for the first time held a hearing on the issue of voluntariness. It found that the resignation was voluntary. When the record came before the District Court for review Judge Youngdahl found otherwise and ordered reinstatement of the employee. Paroczay v. Hodges, 219 F. Supp. 89.
In the present case the employee consented to an order of the District Court remanding the cause to the Commission for “further administrative proceedings, including an oral hearing, relating to the manner of [appellant’s] separation from Government service,” the court retaining jurisdiction for such further action as might be necessary. In the Civil Service Commission a hearing on the issue of coercion, which had been refused before, was held. The Appeals Examining Office found the resignation was voluntary. The Board of Appeals and Review reached the same result and held that the employee’s separation was not adverse action subject to appellate review by the Civil Service Commission. The matter then came on for consideration again by the District Court, on the administrative record. The court granted the motion of the employing agency and of the Commission for summary judgment, reciting that there was no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law.
It will be seen that this is not a case where the Commission has determined that an agency or department of the government has validly taken adverse personnel action against an employee on notice of charges with opportunity to answer or otherwise have the benefit of procedures provided by statute or regulation. In the ordinary discharge case the issue is not whether there was a discharge. It is whether the discharge was valid. Here the issue is whether there was a discharge, the answer depending upon resolution of the issue of coercion, that is, whether a representative of the employing agency had coerced an employee to resign. The conduct of the representative of the agency, not the conduct attributed to an employee as a basis for a discharge, is the issue. The case therefore lies outside the reasoning of the decisions that on review of adverse personnel action sustained by the Commission the court will accept the Commission’s decision if applicable procedures have been followed and the factual findings have substantial support in the evidence. This rule finds justification particularly in the desirability that the retention or removal of employees for the good of the service be left largely to the employing agency or department with a minimum of judicial supervision. This accords with the plan created by Congress. I would not extend this rule to the present case where the reasons which gave rise to it do not apply. They do not apply *539when the issue is whether a representative of the agency or department has coerced an employee to abandon her position. This is not the kind of personnel problem specially entrusted to the Commission. In any event I would not construe the consent to the- remand to the Commission in this case as consent that when the case came back to the District Court the court would hold itself to the same standard of review as in the ordinary discharge case. That is, would limit itself to a determination whether the Commission decision was “arbitrary or capricious” or its findings were “supported by evidence,” Pelicone v. Hodges, 116 U.S.App.D.C. 32, 33, 320 F.2d 754, 755, or “there is a rational basis for the conclusions reached by the administrative agency,” Eustace v. Day, 114 U.S.App.D.C. 242, 314 F.2d 247, or the equally stringent standard of Saggau v. Young, 100 U.S.App.D.C. 3, 240 F.2d 865. These cases were discharge or removal cases. Moreover, the standards they follow were established by the judiciary. They are not required by the Administrative Pror cedure Act or any other statute, in contrast, for example, with the Labor Acts 2 and other statutes where Congress itself, for reasons of its own applicable to the special duties entrusted to the agency, has prescribed the standards by which the court will review the findings of fact.
The remand to the Commission in this -case did not explicitly call for Commission findings on the issue of coercion. This is not to say, however, that those made are not to be accorded weight. Weight should be given to them; but where the issue is coercion of a resignation — cases of this kind are rare in our experience — the difference between the issue and the circumstances giving rise to the controversy, and the issue and circumstances where personnel action against an employee following upon charges is involved, leads me to a different view of the standard by which the courts should review the finding. In the absence of a statute providing otherwise I would require the finding on coercion to be tested by a standard no more restrictive upon the court than one which accords due weight to the better opportunity of the official presiding over the hearing and making the initial finding to pass upon the credibility of the witnesses. Bee Rule 52(a), Fed.R.Civ.P. In any event if the appropriate division of responsibility between agency and judiciary in such a case requires a more restrictive role than this for the court, then a “clearly erroneous” standard like that of Rule 52(a) would suffice.
There is another difficulty I have with the disposition of this appeal. We do not know why the trial judge gave summary judgment for appellees. The practice has grown up, encouraged no doubt by the failure of this court to indicate dissatisfaction with it, of granting summary judgment in employee discharge cases without any indication of the basis therefor except the language of Rule 56 (c), namely, that there is no genuine issue of material fact and defendants are entitled to judgment as a matter of law. Were there only an issue of law nothing more would be needed; but in reviewing administrative factual findings on an administrative record the court is not confronted with a mere legal issue in the usual sense. On the administrative record upon which the court acted in this ease there was a genuine issue of material fact as to coercion. This issue could be disposed of by summary judgment only if the court found that the Commission finding met the correct standard of review. No trial de novo being required judgment could then be entered for the defendants as a matter of law. But unless we can ascertain that the court reached its conclusion under the proper standard of review we should not affirm summary judgment. In Grant v. Benson, 97 U.S.App.D.C. 191, 195, 229 F.2d 765, 769, heard by the District Court on the administrative record, we pointed out that the *540court found that “the findings and conclusions of the Secretary were based on and supported by substantial evidence in the record.” And see Minkoff v. Payne, 93 U.S.App.D.C. 123, 126, 210 F.2d 689, 692, though the situation there was not so clear. And see National Broadcasting Co., Inc. et al. v. United States et al., 47 F.Supp. 940, at 946-947, where Judge Learned Hand held for a three-judge District Court that “there was substantial support for the findings in the record.” When the case reached the Supreme Court and a like conclusion was stated this was after the District Court determination had been made under a standard correctly set forth. National Broadcasting Co. v. United States, 319 U.S. 190, 224, 63 S.Ct. 997, 87 L.Ed. 1344. So that even were the prevailing standard in employee discharge cases to be applied here, I think the District Court should disclose the basis for holding there was no genuine issue of material fact.
Appellant resigned only after the pressure of a period of investigation, examination and questioning extending between three and four hours into the evening after the working day. I do not intimate that when an employee is offered the opportunity freely to resign rather than face charges the resignation is involuntary. I do question most earnestly whether this resignation was of that character. And it seems to me this court should not affirm a decision of the District Court, resulting in leaving this Commission finding of voluntariness in effect, unless we know upon what basis the District Court reached its decision. If it be assumed that the basis was that there was substantial evidence to support the finding I am unable to accept the decision as valid. The long period of examination, pressure and questioning which led to the resignation, in the circumstances which faced appellant, precludes agreement on my part that the resignation must be held to have been voluntary merely because there was some substantial evidence to support the finding that it was.
I respectfully dissent.
. 106 U.S.App.D.C. 343, 273 F.2d 78, cert. denied, 368 U.S. 854, 82 S.Ct. 91, 7 L.Ed.2d 52.
. “The findings of the Board with re-speet to questions of fact if supported by substantial evidence on the record considered as a whole shall he conclusive.” 29 U.S.C. § 160(e).