dissenting:
Suppose a plaintiff were to bring a suit alleging breach of contract and the applicable rules provided thirty days to answer and required an evidentiary hearing before plaintiff could recover. I cannot imagine a court allowing such a plaintiff, following a trial on that complaint, to change his suit to a tort suit, cut down the time allowed the defendant to answer the second complaint and urge that the case be decided on the basis of some additional documents supplied by the parties. That is precisely the kind of convolution allowed by the court in this case. That the defendant is a federal employee, that the cause of action involves the employee’s job, and that the “rules” are the specific mandate of Congress only make the cause more compelling.
The specific issue in this case is whether the removal of Frederick Drew from his position with the Department of the Navy followed the procedures required when an employee is removed to promote efficiency of the service, 5 U.S.C. § 7513 (Supp. IV 1980).1 The Civil Service Reform Act of 1978, Pub.L.No. 95-454, 92 Stat. 1111 (1978), is a relatively new statute that sets out in comprehensive fashion the rights of federal employees threatened by adverse action. It is especially important for such a statute to be construed carefully from the outset. Yet the per curiam opinion lets stand the seriously deficient procedures under which Mr. Drew was fired.
I. THE STATUTORY SCHEME
With the aim of improving the productivity of federal employees, the Civil Service Reform Act (CSRA) added a second basis for removing federal employees — -performance appraisal removal — to the preexisting efficiency of the service standard.2 It is clear from the statute that these two methods of removal are based on different theories and impose different standards of proof upon the government when it proceeds against an employee.
The development of systems for assessing employee performance and for discharging clearly deficient employees was one of the major innovations of the CSRA. It was designed to enable agencies to provide more satisfactory recognition of employees’ merit or lack thereof.3 Under the statute, agencies were directed to develop performance appraisal systems informing employees of the critical elements of their positions and expected performance levels for each element. 5 U.S.C. § 4302(b)(1), (2) (Supp. IV 1980). Employees who fail to meet performance standards for one or more of the critical elements of their positions may be reduced in grade or removed, id. § 4303(a). An employee against whom § 4303 adverse action is proposed is entitled to thirty days’ advance written notice identifying specific instances of inadequate performance of critical elements, id. § 4303(b)(1)(A)(i), (ii); a reasonable time to answer orally or in writing, id. § 4303(b)(1)(C); and a written statement of reasons for any adverse action ultimately taken, id. § 4303(b)(l)(D)(i). In addition, employees may appeal § 4303 adverse actions to the Merit Systems Protection Board (the “Board”), with full rights to *203a hearing and representation, id. § 7701(a)(1), (2). The Board is to sustain a § 4303 adverse action which is supported by substantial evidence, id. § 7701(c)(1)(A).
The Act also retained the existing method for removing employees in order to further the efficiency of the service, but with revisions designed to provide more extensive procedural safeguards for employees.4 Removals under § 7513 may be taken “only for such cause as will promote the efficiency of the service,” id. § 7513(a). An employee against whom § 7513 removal is proposed is entitled to “at least 30 days advance written notice ... stating the specific reasons for the proposed action,” id. § 7513(b)(1). The employee is entitled to answer, id. § 7513(b)(2), and to receive “a written decision and the specific reasons therefore at the earliest practicable date,” id. § 7513(b)(4). Like employees removed under § 4303, employees removed under § 7513 also have full rights of appeal to the Board, including the right to a hearing, id. § 7701(a). Removals under § 7513, however, are to be sustained only if the Board finds the agency’s action supported by a preponderance of the evidence, id. § 7701(c)(1)(B).
Removal under § 7513 thus differs from removal under § 4303 in two ways which are crucial here: under § 7513 the government must show that the removal will further the efficiency of the service, and § 7513 imposes a higher standard of proof on the government than does § 4303. Either difference might dictate a change in defense strategy by the employee threatened with discharge. All an employee faced with a charge of failure to meet performance standards can do is challenge the standards or show that he met them. An employee facing discharge for the efficiency of the service, by contrast, might want to reply to evidence of deficiencies by showing countervailing instances in which his performance was beneficial. Similarly, an employee appealing his discharge to the Board on the substantial evidence standard of § 4303 might believe further testimony was fruitless once his employer had introduced substantial evidence; an employee faced with the preponderance standard of § 7513 might not.
II. ANALYSIS OF THIS CASE
The Navy tried to fire Mr. Drew under § 4303 for failure to meet unofficial performance standards. When the Board held in Wells v. Harris, 1 MSPB 199 (1979), that such a discharge was improper, all of the agencies involved in premature utilization of the new law sought to shortcut the retrial of cases in process. I can agree that the record established in the first go-around is usable in the second effort. No procedural or substantive rights are diminished by such an incorporation by reference. But it is wholly beyond the pale for the Board to authorize and for this court to condone serious departures from the procedural rights clearly established by the statute. A letter which at best implies the right to a further hearing does not fulfill the hearing requirement which must be specifically waived by the employee under applicable rules. Twenty days notice is not thirty days notice, and it is improper to piggy-back one notice period onto another, just as it would be improper to credit some kind of oral notice against the thirty day notice required by statute.
Mr. Drew’s initial notice of proposed removal informed him of specific instances in which he had failed to perform the critical elements of his position adequately, as is appropriate for removal under § 4303. This notice was not sufficient for subsequent removal under the different standard of § 7513, and the government does not contend that it was.5
The decision in Wells v. Harris resulted in the reopening of the removals of Mr. Drew *204and some twenty-three other federal employees. Wells held that agencies could process removals for inadequate performance under either § 4303 or § 7513, as long as they complied with the procedural requirements of the route chosen. Id. at 235-36. A general remand order following Wells directed agencies to follow these procedures in the reopened cases:
the presiding official shall provide the agency twenty days in which to request reconsideration of the case under the standards of 5 U.S.C. Chapter 75. If the agency so requests, the presiding official shall provide the parties a reasonable time in which to present any supplemental documentary or testimonial evidence concerning the issue of whether, by a preponderance of the evidence, the action was taken for “such cause as will promote the efficiency of the service.” The presiding official shall then issue a new adjudication under the standards of Chapter 75 upon the existing record as supplemented.
Joint Appendix (J.A.) 209. In addition, the remand order required that all parties to the reopened cases be furnished with copies of Wells. J.A. 208.
Following this general remand order, the regional presiding officer of the Board inquired whether the Navy intended to seek reconsideration of Mr. Drew’s removal under the standards of § 7513, J.A. 210-11. Mr. Drew received a copy of this inquiry, together with a copy of the Board’s opinion in Wells. After the Navy requested reconsideration, the regional presiding officer sent Mr. Drew a copy of the Navy’s request, together with a letter informing Mr. Drew that he had “twenty days from receipt of this letter to present any supplemental documentary or testimonial evidence concerning the issue of whether, by a preponderance of the evidence, the agency action was taken for ‘such cause as will promote the efficiency of the service.’ ” J.A. 212. Mr. Drew was told that the new adjudication would be based on the additional submissions and the evidence of record in the § 4303 proceeding, and that the record would be closed to additional submissions at the end of the twenty day period. Id.
The per curiam opinion finds that these communications from the Board to Mr. Drew both informed him fully of the new charges against him, and gave him the opportunity to respond that is required by the statute. As the per curiam notes, Mr. Drew was informed that his dismissal was being reconsidered under a different substantive standard and a different standard of proof. His written reply, although it mainly reiterates points appropriate to a § 4303 dismissal, appears to recognize the fact that a new charge is at stake. J.A. 221-34, 236-37. Nonetheless, these proceedings did not give Mr. Drew the full opportunity to respond that is contemplated in the statutory scheme.
In appealing an agency’s adverse action to the Board, an employee has a right to a hearing. 5 U.S.C. § 7701(a)(1), (2) (Supp. IV 1980). Mr. Drew was informed that he had a right to submit additional “documentary or testimonial evidence” to augment the record for the § 7513 reconsideration. J.A. 212. This is the language standardly used to tell employees that they may make oral submissions during dismissal proceedings at the agency level, where they do not have full hearing rights. In contrast, employees appealing agency dismissals to the Merit Systems Protection Board do have a right to a hearing and are specifically informed of that right and asked whether they intend to waive it. Mr. Drew’s initial letter from the Navy proposing his removal under § 4303, for example, informed him and his “right to answer this proposal orally and in writing and to furnish affidavits or other documentary evidence in support of your answer.” J.A. 10. His notice of right to appeal the § 4303 dismissal to the Board, however, included copies of the Merit Systems Protection Board regulations, which make the right to a hearing explicit, and the Board’s appeal forms, which specifically ask the employee to request or waive a hearing. J.A. 94-121.
Moreover, Mr. Drew apparently did not believe he had a right to a further hearing *205on the § 7513 charge. He never explicitly waived such a right, and although he believed that further witnesses would be beneficial he made no effort to seek a new hearing. See J.A. 231. The Board decision affirming Mr. Drew’s dismissal under § 7513 contains no indication that any further hearing rights were contemplated by either side in the case. This failure to make Mr. Drew’s additional hearing rights explicit stands in sharp contrast to the procedures followed in some of the cases remanded at the same time as Mr. Drew’s.6
In addition, Mr. Drew was given only twenty days in which to augment the record for the § 7513 reconsideration. In initial removal proceedings before the agency, the employee is entitled to at least thirty days advance written notice to present evidence in his defense. 5 U.S.C. § 7513(b)(1) (Supp. IV 1980). After adverse agency action, an employee has twenty days in which to appeal to the Board, 5 C.F.R. § 1201.22(b) (1980). If he requests a hearing, he is entitled to a further fifteen days between the date a hearing is noticed and the date it is scheduled, id. § 1201.51. By contrast, on the § 7513 charge, Mr. Drew was granted a total of only twenty days within which to make all further submissions to the record. J.A. 212.
These omissions were not trivial. Defenses are available to Mr. Drew under § 7513 that were not available to him under § 4303. For example, Mr. Drew contends that his union activities, themselves of benefit to the federal government and its employees, accounted for his failure to meet the performance standards. Evidence of the beneficial nature of Mr. Drew’s union activities would have been irrelevant to the § 4303 charge, and Mr. Drew did not in fact bring forth any such evidence at his § 4303 hearing. Similarly, after the Navy had concluded its § 4303 case, Mr. Drew failed to call several originally planned witnesses; a different strategy might have been dictated had the government been required to prove its charges by a preponderance of the evidence, as they are under § 7513. Evidence of deficient performance, as the per curiam contends, is surely relevant to a dismissal under § 7513. Such evidence, however, is not all that is relevant to a § 7513 dismissal. To hold otherwise, as the per curiam nearly does, is to collapse different statutory standards into a single removal procedure. Mr. Drew did not receive the full opportunity guaranteed by the CSRA to bring forth all that was relevant to his dismissal under § 7513. His dismissal, therefore, was procedurally deficient.
III. CONCLUSION
The CSRA was intended to streamline employee dismissal procedures within the federal government. For example, the notice requirement of § 7513(b)(1) requires only a statement of “the specific reasons for the proposed action,” whereas its statutory predecessor required a statement of “any and all reasons, specifically and in detail,” for a proposed removal. Veterans’ Prefer*206ence Act of 1944 § 14, Pub.L.No. 359, 58 Stat. 390 (1944) (repealed 1978). In making the change, Congress intended to diminish the likelihood that dismissals would be reversed for procedural deficiencies, especially the failure to enumerate all instances of unsatisfactory employee conduct. Congress did not, however, intend to deprive the employee of a full and fair opportunity to reply to the charges against him:
The change is intended to reduce the degree of detail now sometimes required in order to avoid reversal on procedural grounds. The agency must still tell the employee the reasons for the proposed action in sufficient detail to allow the employee to make an informed reply.
Senate Report at 50, U.S.Code Cong. & Admin.News (1978) p. 2772. The preponderance of the evidence standard of proof imposed on the government in dismissals under § 7513 is another indication of Congress’s intention to safeguard federal employees while at the same time removing unnecessary barriers to removal.
Only one circuit appears to have considered the new notice requirement of the CSRA,7 and it did so in a case markedly similar to Drew. In Knuckles v. Bolger, 654 F.2d 25 (8th Cir. 1981), the Eighth Circuit held that notice of discharge for converting postal service money did not afford the employee an adequate opportunity to defend against a subsequent charge of violating post office accounting procedures, based on the same incident. The Knuckles court emphasized that the CSRA requires ensuring employees full opportunity to respond to the charges against them:
Rather than give Knuckles an opportunity to respond to the charge of a violation of accounting procedures, the presiding official merely assumed the violation as required by the Board’s opinion and order, and asked whether Knuckles had been given sufficient notice of the charges against him. Had Knuckles been permitted to respond directly to the violation of accounting principles charge, uncomplicated by any uncertainty about notice of the charge, he may have been able to raise and prove a number of defenses, including that the accounting procedures were invalid, that he had legitimate reasons for not strictly following the procedures, or that his discharge was arbitrary and capricious because he was treated more severely than other employees who had violated the same or similar postal service rules.
654 F.2d at 28.
Congress did indeed seek to simplify the means by which inefficient employees can be separated from federal service. If and when the Navy finalizes its performance standards, it can use the new Chapter 43 procedures. Until then the Chapter 75 procedures dictate the procedures under which federal employees can be discharged. It is not for this court or the Board to fashion a hybrid procedure and pronounce that it is just as good as anything Congress can do.
I dissent.
. I agree with the majority that the decision in this case to reconsider defective performance appraisal removal, 5 U.S.C. § 4303 (Supp. IV 1980), on the standards of removal for the efficiency of the service, id. § 7513, was not itself a “prohibited personnel practice,” see id. § 2302(b)(11). Slip op. at 8 n.9. Nonetheless, the chequered procedural history of this case surely warrants especially careful scrutiny of the procedures followed in the second removal action under § 7513.
. S.Rep.No. 95-969, 95th Cong., 2d Sess. 3-4 (1978) [hereinafter Senate Report] U.S.Code Cong. & Admin.News (1978) p. 2723.
. Id. at 41; H.R.Rep.No. 95-1403, 95th Cong., 2d Sess. 20 (1978) [hereinafter House Report] U.S.Code Cong. & Admin.News (1978) p. 2723.
. Senate Report at 46; House Report at 21-22.
. Andrade v. Department of the Air Force, 2 MSPB 117 (1980) holds only that the mere fact that notice was first issued under § 4303 does not render it inadequate for purposes of § 7513. A decision of the Board, moreover, could not abrogate the statutory requirements for notice under § 7513.
. The twenty-three cases remanded with Drew illustrate the confusion about what procedures were to be followed in the cases reopened by Wells. Of the twenty-one dismissals which have been affirmed on remand to date, eleven contain no discussion of additional hearing rights. In three, the discharged employee was specifically offered additional hearing rights but declined the opportunity. Five employees requested and received additional hearings; two of these received specific indication of their right to request a further hearing. One employee was offered the opportunity to submit additional “documentary and testimonial evidence,” as was Drew, and the examiner specifically regarded her failure as a failure to request a hearing. Lawson v. Veterans Administration, No. DA075209159 (Merit Systems Protection Board May 9, 1980), One employee requested a hearing but was denied one on the ground that § 7513(c) does not mandate a hearing. Lopez v. Department of the Army, No. AT075209126 (Merit Systems Protection Board May 1, 1980). Several of the hearing examiners appear to have regarded the right to a hearing as separate and additional to the right to submit “documentary and testimonial evidence.” See, e.g., Catliff v. Department of the Army, No. NY075209126 (Merit Systems Protection Board June 3, 1980); Blaes v. Veterans Administration, No. SL075209040 (Merit Systems Protection Board March 21, 1980) (Blaes informed of her right to submit new documentary and testimonial evidence and “was additionally advised of her right to request a hearing on the matter.”).
. The Court of Claims has also considered the 1978 notice requirement for § 7513 removal. Brewer v. United States Postal Service, 647 F.2d 1093 (Ct.C1.1981), holds that a charge of specific instances of falsifying time cards, based on identified affidavits, was adequate "to apprize the petitioner of the nature of the charges against him.” The case did not involve a change in charges, but concerned the specificity with which instances of misconduct must be detailed. The legislative history is clear that Congress meant the new notice provision to cut down reversals based on failure to enumerate each specific instance of alleged misconduct. Senate Report at 50. Failure of enumeration, however, differs strikingly from failure to state the charges themselves.