dissenting:
The majority’s decision in this case appears to prove the point that an individual employee who “blows the whistle”1 on allegedly corrupt Government officials may eventually be swallowed by the system that he has challenged. The result here, as mandated by. the majority decision, is surely a bitter defeat for an employee who deserved better at the hands of the law.
I am sorry that this court has been made an instrument of injustice by Government officials determined to destroy an individual who has served in the federal service for many years as a “valuable employee.” Majority op. at 947. The majority has obviously turned a “deaf ear” to appellant’s claim. This is unfortunate because it plainly has made it impossible for the majority to recognize that the Government’s position in this case is a sham.
I. BACKGROUND
This is a simple case of unlawful retaliation against appellant, Donald Jolly, who— *949prior to his discharge — had worked for fourteen years with the Social Security Administration (SSA) at its Southeastern Program Center in Birmingham, Alabama. Mr. Jolly was fired only after he “blew the whistle” on certain SSA officials, by publishing a Newsletter accusing them of being involved in the purchase of AMWAY distributorships — a pyramid sales scheme involving the sale of women’s clothing and cosmetics — and then extending preferential treatment to employees who agreed to sell the AMWAY products for them. Two of the officials who had been accused, a Mr. Listerman and a Mr. Bruce, were the principal management officials who acted to effectuate Mr. Jolly’s termination.
From the start, it has been evident that management has attempted to hang Mr. Jolly with trumped-up charges. Indeed, as will be indicated below, the management disciplinary process has been a farce as the charges against Mr. Jolly have been modified at least four times during the course of the proceedings in this case. For this court to indulge — much less approve — the Government’s actions in this case is a travesty and gross miscarriage of justice.
On two previous occasions, this court has ruled against the Government on appeals brought by Mr. Jolly.2 The Fifth Circuit has also twice ruled against the Government in a separate but related case involving an employee who sought to defend Mr. Jolly and, as a consequence, was suspended by the same two supervisors who had acted to fire Jolly. See Porter I and Porter II, supra note 1. On this third appeal, after this court has already indicated in Jolly II (see APPENDIX A) that “the specific charges against Jolly seem slight,” and noted “the questionable circumstance that [Jolly’s] interrogation was conducted by one of the very supervisors the employee has publicly accused of wrongdoing,” and expressed a strong view that “Jolly will be reinstated (“in light of the reduced charges against him”), it is astonishing that the majority now rules that we must turn a “deaf ear” to the appellant’s complaint.
The result reached by the majority is legally unjustified. Worse, the decision of the court today rubber stamps lawless Government actions that mock all notions of justice and fair play. I am convinced that many of Mr. Jolly’s former colleagues at work, upon reading the majority opinion, will be convinced that it never pays to buck the system, especially if you are required to “blow the whistle” on an allegedly corrupt supervisor who is in a position to retaliate. It is unfortunate indeed that this message is being delivered by a court of law.
II. THE CRITICAL FACTS MISSING FROM THE MAJORITY OPINION
Before proceeding to explain why I feel that the legal holding offered by the majority is plainly wrong, it is important first to highlight the critical facts in this case. The facts set forth in the majority opinion are, for the most part, entirely accurate. The problem, however, is that the majority fails to paint the full picture and thus effectively obscures Mr. Jolly’s real complaint. In my view, once all of the facts are considered, there can be no doubt that the action taken against Mr. Jolly was arbitrary and capricious.
1. Mr. Jolly’s Employment Record at SSA
Donald G. Jolly was a career civil servant who had been continuously employed by the Federal Government from 1955 until 1974. Mr. Jolly first gained employment with the Department of Health, Education, and Welfare, Social Security Administration in 1960, and worked continuously for SSA at the Southeastern Program Center, Birming*950ham, Alabama, until he was fired in 1974. During his 14-year tenure with the SSA, Mr. Jolly received numerous promotions. At the time of his discharge, Mr. Jolly held the highest technical position within the agency, that of Quality Appraiser in the Quality Appraisal Branch. Further, during his tenure with the government, Mr. Jolly had received over 40 commendations and, prior to 1973, he had never received a work evaluation from a superior that was not outstanding. Indeed, in 1969, Mir. Jolly received a high quality increase in pay as a reward for outstanding work. A. 33-34.
It is important to understand the truly outstanding record compiled by Mr. Jolly during his many years of government service in order to comprehend the pretextual nature of the charges against him. Jolly was not an employee with a history of difficulty, either in his job performances or other personnel relations. His problems arose only when he chose not to continue participation in a management Staff Development Program, and when he “blew the whistle” on allegedly corrupt supervisors. As will be shown below, it was these two factors — not any deficiency in his work performance — that resulted in his discharge.
2. The Nebulous and Ever-Changing “Charges” Against Mr. Jolly
To read the majority opinion, one might get the impression that this case involves a straightforward charge of employee misconduct or poor performance. Quite the contrary. Instead, we have a situation involving an employee who has been subjected to unlawful retaliation and agency officials who have searched in vain for some legitimate reasons to justify their lawless actions. This point is proven by the nebulous and ever-changing charges leveled against Mr. Jolly as this case has progressed through several appeals.
THE FIRST SET OF CHARGES: In September of 1973, shortly after Mr. Jolly had published a Newsletter accusing Mr. Listerman and Mr. Bruce of being involved in the AMWAY scheme, Jolly received a letter advising him that Mr. Listerman proposed to suspend him for “publishing .. . unsupported derogatory allegations, inflammatory remarks, and improper inferences in a publication entitled ‘Newsletter,’ dated August 1973.” A. 83. On December 27, 1973, Listerman withdrew his proposal to suspend Jolly and substituted a proposal “to separate [Jolly] from the Federal service ... no earlier than 30 days from the date [when Jolly received the] notice.” A. 5.
Although Listerman never acted on his initial threat to suspend Jolly for publishing the Newsletter, it is important to note that the September 1973 notice of suspension was the first significant act of discipline proposed by management against Jolly.3 It is also important to recall that the proposed suspension came only after Jolly had publicly accused Listerman and Bruce of misconduct in connection with the AMWAY scheme.4
THE SECOND SET OF CHARGES: In the separation notice of December 27, 1973, Mr. Listerman proposed to fire Mr. Jolly for the following reasons:
1. “Poor quality of work.” A. 5.
2. “Failure to cooperate with your supervisors,” A. 8, including:
*951a. Too much time expended representing agency employees in grievance matters.5
b. Failure to limit the number of telephone calls received.6
c. Resignation from the Staff Development Program. A. 9-10.
d. Refusal to answer questions from management concerning the publication of the Newsletter. A. 10.
3. “Creating an atmosphere adversely affecting employee-employer relationship.” 7
THE THIRD SET OF CHARGES: Following Mr. Jolly’s hearing before the Civil Service Commission’s Federal Employee Appeals Authority (FEAA), charge number 3 and parts c and d of charge number 2 from the December 27, 1973 notice of separation were deleted from the list of accusations leveled against Mr. Jolly. Nevertheless, in a decision rendered on November 10, 1975, the FEAA affirmed Mr. Jolly’s discharge on the reduced grounds (i.e., including only charges 1, 2a. and 2b.), concluding that the removal action was “not arbitrary, unreasonable or capricious and [was] for such cause as will promote the efficiency of the service.” A. 16, 31.
THE FOURTH SET OF CHARGES: After this court vacated the judgment in favor of the Government in Jolly II (see APPENDIX A), and ordered that “the case should be remanded to the agency for reconsideration of the propriety of the punishment imposed,” the Government once again changed its list of charges against Mr. Jolly. It is not surprising that the Government resorted to further post hoc rationalizations upon remand; agency officials obviously recognized that charges 2a. and 2b. from the December 27, 1973 notice of separation were patently without merit, see notes 3, 5 and 6, supra, and that charge 1 had been shown to be baseless, see Appellant’s Brief at 11-16. Nevertheless, the important point here is that the Government’s reliance on new charges after this case was remanded to the agency was wholly improper.8
Appellant, in his Reply Brief to this court, makes the following compelling argument regarding the agency’s belated reliance on new charges:
On remand, SSA was to reconsider the “propriety of Jolly’s dismissal in light of” (a) the reduced charges that “seem slight”; (b) Mr. Jolly’s many years of service and (c) “SSA’s own guidelines [which] provide for an attempt to place an employee in a more suitable position if his or her performance is unsatisfactory” (A. 4). It did not do this. It did not limit its reconsideration to the reduced charges. It gave no consideration to the 14 years of exceptional service Jolly had given to SSA. And it gave no consideration to whether Mr. Jolly could have been placed in a more suitable position before he was discharged. Instead, SSA “reconsidered” the propriety of Mr. Jolly’s dismissal in light of new allegations that were not in the original notice of proposed discharge, were not in the record, or were rejected by the Civil Service Commission. This action by SSA was improper and constituted a denial of due *952process. Furthermore, stripped of all of the improper considerations, SSA’s decision to discharge Mr. Jolly on the reduced charges is arbitrary and capricious and without justification. Indeed, the reduced charges that SSA relies upon are pretextual. The real reasons for Mr. Jolly’s discharge remain his resignation from the Staff Development Program and his publication of the August Newsletter....
The three charges that were relied upon by SSA on remand but were not in the notice of proposal to discharge and were unrelated to the reduced charges that remain, are:
(1) That Mr. Jolly was uncooperative in that he had “excessive visitors at his work station”, and when it was brought to his attention “took no steps to correct the problem” (A. 61);
(2) That “Mr. Jolly was accompanied by a person not employed by the Agency onto federal property after work hours while in the possession of a handgun” (A. 62); and
(3) That Mr. Jolly gave inconsistent reasons for leaving the Staff Development Program (A. 62).
SSA argues that the charge of “excessive visitors” was not new but rather was “interrelated” with other charges. SSA also argues that the latter two charges were not considered in its determination that the reduced charges justified Mr. Jolly’s discharge, but only in its determination of whether reinstatement was warranted. Both arguments are unavailing.
Appellant’s Reply Brief at 10-12. Appellant’s contentions are neither surprising, nor are they the product of artful advocacy. Rather, the contentions flow from simple conclusions easily drawn from the plain record of evidence in this case.
In Tygrett v. Barry, 627 F.2d 1279 (D.C.Cir.1980), this court held that:
Absent the complicating factor of constitutionally protected conduct, a public employee can be discharged for a variety of reasons, and a probationary employee for even gossamer causes. That being so, any kind of reconstruction of the reasoning behind the discharge that provides the employer with a post hoc justification for its action cannot be allowed. To permit that kind of judicial “review” would eviscerate Pickering’s effort to prevent the state from using its control over a person’s job to penalize its employees for the exercise of their First Amendment rights. Therefore, it is essential, as Judge Leventhal said in an analogous case, that the court reviewing the discharge restrict its focus to “the reasons given by the [employer] and not on reasons that may come to light if and when a court rummages throughout the record in an effort to reconstruct on what basis the [employer] might have decided the matter.” United States ex rel. Checkman v. Laird, 469 F.2d 773, 783 (2d Cir. 1972).
Id. at 1286. The principle enunciated in Tygrett is perfectly applicable here. Not only does this case involve a rather blatant attempt by the employer to “reconstruct” the bases of discharge, but it also involves what this court recognized in Jolly II as a “difficult [First Amendment] constitutional issue raised by Jolly on appeal.” See APPENDIX A.
3. The Charge That Mr. Jolly’s Quality of Work Was Poor Is Baseless
As suggested above, see notes 3, 5 and 6, supra, the only possible charge left to be raised against Mr. Jolly is the claim that the quality of his work was poor. The problem with this charge, however, is that there is absolutely no evidence to support it.
The agency offered no standard against which to measure Mr. Jolly’s work performance. The majority opinion argues that Jolly was discharged because, “according to management, his work never reached the required level of accuracy.” Majority op. at 937 (emphasis added). But the record in this case reveals that management has acknowledged that there was no “required level of accuracy” for Quality Appraisers. *953See, e.g., A. 88.9 That is precisely the problem. Indeed, there is nothing in the record to even indicate whether Jolly’s work performance was better or worse in 197S than it had been in prior years when he was recognized to be an outstanding Quality Appraiser!
Additionally, Dr. William Campbell, a statistician employed by Mr. Jolly, made the only objective comparative analysis of Mr. Jolly’s performance with that- of others. Based on Dr. Campbell’s analysis, Jolly ranked among the top three Quality Appraisers in every category in terms of both productivity and accuracy. Dr. Campbell’s assumptions were based upon the testimony of Brian Feldman, who was characterized by his supervisor, Mrs. Chlebowski, as an experienced and fully satisfactory employee in the Quality Appraisal Unit. Appellant’s Brief at 14 (citing from Civil Service Transcript at 270). Even assuming Mr. Feldman’s testimony only explains his own practices, Dr. Campbell’s charts showed that Don Jolly’s record was as good or better than Brian Feldman’s and that Feldman and Jolly both did exactly the same “end of line” review work on samplings of claim files. A. 25. Mr. Feldman continues to work in the Quality Appraisal Unit.10
The plain truth of the matter is that certain officials at the SSA were out to get Mr. Jolly when he resigned from the Staff Development Program. The resolve of these officials was heightened when Mr. Jolly “blew the whistle” on them and publicly exposed the AMWAY scheme. The majority decision is seemingly blind to these realities — realities implicitly recognized in our decision in Jolly II (see APPENDIX A), and explicitly acknowledged in two separate decisions of the Fifth Circuit in Porter I and Porter II, supra note 1. It is too bad that the “deaf ear” of the majority has prevented them from hearing the truth.
III. THE AGENCY’S FAILURE TO REASSIGN MR. JOLLY WAS ITSELF ARBITRARY AND CAPRICIOUS, AND FURTHER EVIDENCE OF UNLAWFUL RETALIATION
Section VIII-C (“Mandatory Review of Negative Determinations”) of the SSA Personnel Guides For Supervisors, states, in part, that:
An employee should not remain indefinitely in a position in which he is not performing at an acceptable level of competence. If he cannot be trained or motivated to perform the job acceptably, an attempt should be made to place him in a more suitable job.
A. 96 (emphasis added). If it may be assumed, arguendo, that Mr. Jolly’s work performance during 1973 was in fact unacceptable, then agency rules required that Mr. Jolly be placed “in a more suitable job.”
Despite the Government’s arguments to the contrary, the aforecited Personnel Guide is both clear and mandatory in its terms. Furthermore, the record is replete with uncontested evidence indicating that section VIII-C of the Personnel Guide routinely has been implemented by an SSA practice of reassigning, rather than dis*954charging, employees who are not performing at an acceptable level. A. 78-82. For example, the unrefuted affidavit of Donald W. Jones, President of one of the largest AFGE locals, states that:
During these 12 years, I have participated in thousands of grievances involving employees of SSA, some of who [sic] have received notices of proposed disciplinary actions including proposed discharges. Also, I have been directly involved in dozens of cases in our program center in which management sought to discipline employees because of their unsatisfactory work performance. In each of these cases, management has followed its own procedure of placing the employee in a more suitable position either through lateral transfer or through a demotion, rather than discharging the employee. In fact, I do not know of a single instance in which an SSA employee who was unable to perform satisfactorily has been discharged without management first placing that employee in a more suitable position.
A. 78. There is absolutely nothing in the evidence in this case, or in the Government’s brief to this court, that can be read to deny or dispute the well-established reassignment practice described by Mr. Jones and other witnesses giving statements on behalf of Mr. Jolly.
In Doe v. Hampton, 566 F.2d 265 (D.C.Cir.1977), this court held that:
It is, of course, well-established that an agency must abide by its own regulations in effecting the removal of one of its employees. ... If the Manual provision to which appellant now refers us is indeed a binding regulation and if the agency has failed to comply with its mandate to the prejudice of its employee, then an essential predicate to a valid removal will have been wanting.
Id. at 280 (citations omitted). In the instant case, it is undisputed that the SSA failed to follow its own internal regulations. No attempt was made to reassign Mr. Jolly, even though the Personnel Guide states, unequivocally, that such an attempt “should be made.” Furthermore, in light of the clear language of the regulation, and the long-standing practices pursuant to the regulation, it can hardly be contended that the Personnel Guide provision on reassignments is merely precatory.11 On this point, the court in Doe v. Hampton noted that:
We of course recognize that the provision in question employs the directory “should be” rather than the mandatory “shall” or “must”, but this should not be automatically determinative of the issue .... Particularly in this instance, this superficial indicium of intent should be weighed against .. . any evidence that the Commission or the agency have by their past actions created a “common law” of reassignment or of granting leave-without-pay.
Id. at 281-82 (emphasis added) (citation omitted). The undisputed evidence in this case plainly reflects a past practice which has “created a ‘common law’ of reassignment.”
In addition, if there were any real questions on this issue, they were put to rest by our decision in Jolly II (see APPENDIX A). As a footnote to the observation that “it is possible that Jolly will be reinstated,” the court in Jolly II stated that:
We note that the SSA’s own guidelines provide for an attempt to place an employee in a more suitable position if his or her performance is unsatisfactory, see Doe v. Hampton, 566 F.2d 265 (D.C.Cir.1977).
Id. at n.1. Obviously, the only question left open in Jolly II was whether there was a suitable position available to accommodate Mr. Jolly, not whether the reassignment provision was mandatory.
*955There is no doubt in this case that there was an available position into which Mr. Jolly could have been reassigned. In fact, Mr. Jolly sought a lateral transfer to the Operations Division of SSA and Hunter Keller, the Director of that Division, testified that he would have accepted Mr. Jolly if Mr. Listerman had acted upon the request.
All things considered, it must be concluded that SSA’s failure to reassign Mr. Jolly, in lieu of discharge, was both unlawful and further evidence of the retaliatory tactics employed by agency officials against Jolly.
IV. THE DECISION OF THE MAJORITY IN THIS CASE RUNS DIRECTLY COUNTER TO THE DECISIONS OF THE FIFTH CIRCUIT IN PORTER I AND PORTER II
One of the most distressing things about the majority decision in this case is that it is patently inconsistent with two related decisions recently handed down by the Fifth Circuit. See Porter I and Porter II, supra note 1.
The Porter case involves a suit brought by Ms. Ella Porter, who — like Mr. Jolly— was an employee at the Southeastern Program Center of the SSA in Birmingham, Alabama. Ms. Porter “was suspended [in June of 1975] primarily for writing and distributing a letter which, among other things, sharply criticized two of her superiors, appellees Listerman and Bruce.” Porter I, 592 F.2d at 771. The specific charges against Ms. Porter read as follows:
1. Writing letters to employees communicating false information which injured the reputation of management officials, lowered employee confidence in the integrity of the organization and adversely affected the efficiency of the office.
2. Failure to cooperate with management.
Id. at 774. Porter defended herself against these charges mainly by asserting her First Amendment right to speak and by denying certain factual assertions implicit in the charges. Id.
What is particularly noteworthy about Porter’s case is that she was suspended because she attempted to defend Mr. Jolly and because she, too, charged Listerman and Bruce with corrupt activities in connection with the AMWAY scheme. The decision in Porter I describes the factual context as follows:
The center of the case against Porter and of the first charge in particular is the material she distributed to her fellow employees in 1975. Porter distributed three things in the one mailing she made. First is a letter, dated February 20, 1975, and signed by Porter appealing for “financial and moral support” for Don Jolly, a former President of the American Federation of Government Employees local in the Program Center and a former coworker of Porter’s. Jolly had been fired a few months before Porter distributed her letter and, according to Porter, needed funds for the legal expenses in his appeal of his termination. Before being fired Jolly had made certain charges of conflict of interest against Listerman and Bruce, and in her letter Porter alleged appellees had had Jolly fired because of these criticisms. In addition, the letter again asserted that Listerman and Bruce were corrupt. The basis of this assertion is Listerman’s and Bruce’s role in AMWAY. AMWAY is a private corporation which apparently sells women’s clothes and make-up and which Bruce, Listerman and other Southeastern Program Center employees work or worked for part-time. Porter accused Bruce and Listerman of using government time for AMWAY work and, more significantly, influencing their subordinates in the Program Center to join the AMWAY operation by favoring AMWAY members when making government promotion decisions.
Similar criticisms of the AMWAY connection with the office were made to Listerman by Don Jolly in 1971, when he was president of the local of the American Federation of Government Employees. Jolly was fired in 1974, and was in the process of appealing his termination with the Civil Service Commission at the *956time of Porter’s suspension. In her letter Porter also alleged that Listerman had had Jolly fired because of his criticisms of AMWAY.
592 F.2d at 774-75 (footnotes omitted).
In examining Ms. Porter’s complaint, the Fifth Circuit astutely compared the charges against Porter and Jolly, and commented:
[W]e note that charges two and three against Jolly are almost identical to the two charges against Porter. And we note that the two charges against Porter were initiated largely by Bruce and Listerman and were based on Porter’s allegations about their role in AMWAY. Contrary to the thrust of Bruce’s challenge to Porter, quoted above, it might seem that a careful reading of the official charges against Jolly, in light of the subsequent charges against Porter, would tend to confirm rather than discredit Porter’s earlier suspicions about the reasons for Jolly’s termination.
Porter I, 592 F.2d at 776 n.10. Throughout its opinion, the Fifth Circuit noted with disfavor the pervasive roles of Listerman and Bruce in connection with the retaliatory actions against Porter and Jolly.12
As to the Government’s claim that Porter’s charges against Listerman and Bruce were disruptive of agency operations, the court in Porter I stated:
An employee who accurately exposes rampant corruption in her office no doubt may disrupt and demoralize much of the office. But it would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office.
592 F.2d at 773.
In its conclusion in Porter I, the Fifth Circuit ruled that, “[t]o the extent Porter’s suspension was based on [a charge of “failure to cooperate with management”], the suspension was arbitrary and capricious and is hereby set aside.” 592 F.2d at 784. The case was then remanded to the District Court for further proceedings on Ms. Porter’s complaint.
Following remand, the Administration and Porter entered settlement discussions. While discussions were underway, the Administration tendered Porter her back pay and expunged from her records any reference to the suspension. The Government then moved for summary judgment, or in the alternative, dismissal, contending that Porter had received everything to which she was entitled and that the case was thus moot. The District Court agreed and granted the motion. Porter II, 648 F.2d at 311.
Ms. Porter appealed the action of the District Court, and again prevailed at the Fifth Circuit. In its opinion in Porter II, the Fifth Circuit ruled as follows:
Porter contends, here, that the case should not have been dismissed. First, she argues that the government’s tender of back pay and expungement of her records did not ensure her against retaliation by her superiors; therefore, the court needed to decide issues of fact before determining that an injunction was unnecessary. Second, Porter contends that after her successful appeal, the Social Security Administration improperly denied her one and possibly two job promotions and that an award of these lost promotional opportunities is part of the relief to which she was entitled.... Porter’s point that the Social Security Administration’s tender did not provide her with all the relief the district court might have ordered against the agency is *957well taken. And since we agree with Porter that the affidavits the Administration submitted did not preclude a contest of material facts related to these issues, we must remand to allow Porter the opportunity to prove her entitlement, if any, to further relief.
648 F.2d at 311-12 (footnote omitted).
The critical facts to be gleaned from the opinion in Porter II are: (1) the Government awarded Porter back pay and agreed to expunge her records; (2) the Government abandoned the defense implicit in Porter I, that “Porter spoke falsely, recklessly, or with malice” when she accused Listerman and Bruce of corruption, see Porter I, 592 F.2d at 777 n.10; and (3) the court explicitly recognized that Porter might need further protection against “retaliation.”
Needless to say, it is virtually impossible to comprehend the decision of the majority in this case after reading the decisions in Porter I, Porter II and Jolly II (see APPENDIX A). The opinions of the Fifth Circuit cannot be ignored or distinguished on the grounds that Porter involved an employee other than Mr. Jolly.13 Porter, as does this case, focuses on the corrupt and retaliatory acts of the same two agency officials, Mr. Listerman and Mr. Bruce, who acted against Mr. Jolly. Mr. Jolly’s case prompted the suit by Ms. Porter, and the Fifth Circuit frequently refers to “the connection between Porter’s speech and Jolly’s litigation of his own constitutional rights.” Porter I, 592 F.2d at 780.
It is somewhat of an embarrassment that the lawless acts of the same Government officials have been so easily recognized and dealt with by the Fifth Circuit, and so totally ignored by the majority in this court.
Y. SSA’s DISCHARGE OF MR. JOLLY WAS ARBITRARY AND MUST, THEREFORE, BE REVERSED
As has been demonstrated above, the evidence is clear that the first and only real reasons for the discharge of Mr. Jolly were his resignation from the Staff Development Program and his publication of the Newsletter exposing the AM WAY scheme. Numerous other reasons were offered at various times, as the Government sought to alter the charges against Mr. Jolly, but these post hoc rationalizations were plainly pretextual.
The evidence of retaliation and pretext is so clear that it will serve no useful purpose to repeat what has already been set forth in detail above. Under whatever test the majority seeks to employ — “arbitrary and capricious,” “rational basis,” “abuse of discretion,” “substantial evidence,” or “promoting the efficiency of the service,” majority dp. at 943 n.27 — the Government cannot prevail in this case. Although the scope of review may be narrow,
a reviewing court does not serve as a mere rubber stamp for agency decisions. Rather the function of judicial review is to ensure that agency decisions are “based on consideration of the relevant factors.”
Lead Industries Association v. Environmental Protection Agency, 647 F.2d 1130, 1145 (D.C.Cir.1980) (quoting from Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971)). To follow any other approach “would render the appellate process a superfluous. (although time-consuming) ritual.” Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 34 (D.C.Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976).
It is clear that the various and ever-changing reasons given to justify Mr. Jolly’s discharge were merely pretextual, and that the true reasons for his discharge were (1) his resignation from the Staff Development Program and (2) his “blowing the whistle” on corrupt supervisors. It is equally clear that these true reasons cannot *958be used to justify the retaliatory action taken against Mr. Jolly, see Porter I and Porter II, supra, note 1; therefore, the judgment of the District Court should be reversed.
VI. POSTSCRIPT
Unlike the majority, I cannot so easily dismiss the First Amendment considerations underlying this case. The evidence here shows that Jolly was retaliated against because he “blew the whistle” on corrupt supervisors by publishing the Newsletter. In this court’s decision in Jolly II, see APPENDIX A, the panel recognized “the difficult constitutional issue raised by Jolly,” but found it unnecessary to decide the question because of the strong suggestion “that Jolly [would] be reinstated” on other grounds.14
The opinion of the Fifth Circuit in Porter I, supra note 1, is even more clear on the point relating to the First Amendment issue:
An employee who accurately exposes rampant corruption in [his] office no doubt may disrupt and demoralize much of the office. But it would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle because the speech somewhat disrupted the office.
592 F.2d 773 (emphasis added).
The Government has, in this case, attempted to sweep the issue under the rug by dropping charges 2d. and 3 (pertaining to the Newsletter)15 from the list of accusations leveled against Mr. Jolly. The modification of the charges, however, did not change the fact that the real reason for Mr. Jolly’s discharge had to do with his publication of the Newsletter. In other words, the First Amendment issue that this court recognized in Jolly II, and the Fifth Circuit recognized in Porter, did not disappear merely because of a change in Government pleadings.
I find it unnecessary to pursue the First Amendment question, however, in part because the parties have framed the issues differently on this appeal, and in part because — as we said in Jolly II — there is no occasion here to decide the constitutional issue. As I believe the court assumed in Jolly II, the Government actions have been so outrageous and lawless on several counts, one need look no further than the “arbitrary and capricious” standard to justify Mr. Jolly’s reinstatement in this case.
APPENDIX A
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 78-1750
DONALD G. JOLLY, APPELLANT v. E. J. LISTERMAN, Regional Representative, Bureau of Retirement and Survivors, et al.
Appeal from the United States District Court of the District of Columbia.
Before McGOWAN, MacKINNON and WALD, Circuit Judges.
Filed December 6, 1979
MEMORANDUM
The plaintiff Jolly was discharged from his position with the Social Security Administration after fourteen years of service. His discharge was based upon alleged (1) poor work performance during several months immediately preceding his termination, (2) failure to cooperate with his supervisors based in part on his refusal to answer questions about a union publication which had printed articles critical of his supervisors, and (3) creating an adverse employee-employer atmosphere by publishing the newsletter.
*959The final charge, and some of the allegations in support of the second charge, were rejected as grounds for dismissal by the Civil Service Commission in the course of Jolly’s appeal, but his dismissal was upheld by both the CSC and the district court. Jolly’s principal argument on this appeal is that it is a violation of his First Amendment rights of free speech and association to rely as a ground for dismissal on his refusal to answer questions about his publication, particularly when one of his questioners was a supervisor he had criticized in his publication. He also contends that the case should be remanded to the Social Security Administration for reconsideration of the penalty in light of the reduced charges against him.
In this case, Jolly’s original dismissal was expressly based upon “all” of the charges in his supervisor’s letter, but the ultimate affirmance by the CSC of his dismissal, as stated above, was not on all the charges. When a public employee is dismissed, and some of the grounds for termination are later held to be improper, this court has held that if it is unclear whether the charges were deemed by the agency to constitute separate or cumulative grounds for discharge, the case should be remanded to the agency for reconsideration of the propriety of the punishment imposed. Meehan v. Macy, 392 F.2d 822, aff’d on rehearing, 425 F.2d 469, aff’d en banc, 425 F.2d 472 (D.C.Cir.1968). This is true whether the improper charges have been dismissed by this court, as in Meehan, or by the Civil Service Commission, as in Slowick v. Hampton, 470 F.2d 467 (D.C.Cir.1972), and is particularly important where the grounds for dismissal which are upheld are less flagrant than those which have been rejected. In either case, the plaintiff’s employer agency should be given the opportunity to reconsider the exercise of its discretion to devise an appropriate penalty for its employee’s misconduct, if any, in light of the changed circumstances. Therefore the cause must be remanded to the SSA in any event, and since it is possible that Jolly will be reinstated 1 or otherwise satisfied if the SSA is given an opportunity to reconsider, it is unnecessary for us to decide the difficult constitutional issue raised by Jolly on appeal. We conclude that the wisest course now is to remand to his employer agency for further consideration of the propriety of Jolly’s dismissal, in light of the reduced charges, expressing no view on the constitutional issue raised here as to his questioning regarding his relationship to the publication.
. See Porter v. Califano, 592 F.2d 770, 774 (5th Cir. 1979) and Porter v. Schweiker, 648 F.2d 310 (5th Cir. 1981) (two decisions against the Government in a related case involving an employee who sought to defend Mr. Jolly and, as a consequence, was suspended by the same two supervisors who retaliated against Jolly in this case) [hereinafter referred to as "Porter I” and "Porter II ”, respectively].
. See Jolly v. Listerman, 574 F.2d 637 (D.C.Cir.1978), reprinted in Appendix (“A.”) 45-46 (reversing the District Court’s dismissal of appellant’s claim and remanding for further consideration pursuant to a claim under Rule 60 of the Federal Rules of Civil Procedure); Jolly v. Listerman, 610 F.2d 999 (D.C.Cir.,1979), reprinted in A. 1-4 (vacating a summary judgment of the District Court in favor of the Government, with instructions to remand the case to the Social Security Administration for further consideration) [hereinafter referred to as “Jolly II”]. The Memorandum Opinion in Jolly II is attached hereto as “APPENDIX A.”
. In the December 27, 1973 notice to separate, Mr. Listerman wrote to Mr. Jolly:
On May 3, 1973, you were absent from your duty station ... without authorization and without informing management of your whereabouts during the 4 hours from noon through the close of business. As a result ..., management issued ... a formal reprimand on June 8, 1973.
Mr. Jolly’s alleged unapproved absence on May 3, 1973, was his “first and only unapproved absence in his fourteen-year” career at SSA. Appellant’s Brief at 9 (citing from Arbitration Transcript at 1187; 1597-98). Whatever problem arose by virtue of the incident on May 3 was apparently cured by the formal reprimand; there is no evidence, nor does the Government even allege, that Jolly repeated the offense at any time after May 3.
. “Similar criticisms of the AMWAY connection with the Office [had been made previously] to Listerman by Don Jolly in 1971, when he was president of the local of the American Federation of Government Employees.” Porter I, supra note 1, 592 F.2d at 775.
. The December 27, 1973 notice of separation states that Jolly was restricted from acting as a personal representative on any new grievances for six months commencing April 6, 1973. A. 9. There is nothing in the charge, however, to suggest that Jolly failed to comply with this restriction.
. As to this charge, the December 27, 1973 notice of separation states that Jolly was “informed ... [on] April 6, 1973, that the secretary would take [his] telephone messages A. 9. However, the notice also adds that:
This restriction brought about the needed improvement and on October 30, 1973, it was removed.
A. 9 (emphasis added).
. This third charge related primarily to Mr. Jolly’s publication of the Newsletter, and it appears to be a repeat of the September 28, 1973 notice of proposed suspension. A. 83.
. It also should be noted that the agency’s reconsideration on remand was achieved without a hearing, by a simple letter from Harry Overs, Director of the Office of Program Service Centers to the District Court indicating that (for some old and new reasons) the agency believed that Mr. Jolly’s discharge was justified.
. In response to a Union inquiry about the evaluation of Quality Appraisers, a management official candidly
explained that it would be impossible to measure accuracy on cases that were worked on, not only in the program centers, but also in the district offices. There is no definite method or formula, as the [Union] Council had requested, to determine individual accuracy on a sample basis.
A. 88 (report of Consultation Meeting between SSA and AFGE, May 7-9, 1974).
. Milton Freedman, Assistant Bureau Director of Quality Appraisal of the Bureau of Retirement and Survivors Insurance, testified at the arbitration hearing about a Quality Appraiser (who he refused to name) whose work was so bad that it had fouled up SSA national data. Mr. Freedman admitted, however, that “that employee is still on the job.” Appellant’s Brief at 14 (citing from Arbitration Transcript at 735).
The reference to this evidence is not to suggest that the Government is obligated to retain inefficient employees on its payroll. Rather, the point to be made is that the action taken against Jolly, an employee with a history of good work performance, was unlawful retaliation when it is considered that other less qualified employees were retained when Jolly was fired.
. In Doe v. Hampton, 566 F.2d at 280-81, the court first noted that “not ‘every piece of paper emanating from a Department or Independent Agency is a regulation,’ ” and then distinguished between “mandatory” and “precatory” provisions. The court, however, left no doubt that a past practice of reassigning employees within an agency may give rise to an enforceable “common law.” Id. at 281-82.
. At one point the court noted that
[t]he chief inadequacy in the agency fact-finding procedures used in this case was the pervasive role played by Listerman and Bruce, the officials Porter explicitly accused of corruption. Bruce conducted the initial fact-finding interviews with Porter about her accusations.
Porter 1, 592 F.2d at 782. At another point in the decision, the Fifth Circuit added that
we find the process inadequate in the instant case because the biased or otherwise inadequate initial fact-finding process was not cured by a subsequent impartial and full review in the agency.
Id. at 783.
. In suggesting that “the Fifth Circuit’s holding . .. was narrow,” majority op. at 947, the majority completely ignores the conclusive and highly favorable decision, for Ms. Porter and against the Government, in Porter II.
. See discussion at the conclusion of section III, supra.
. See discussion in text between notes 7 and 8, supra.
. We note that the SSA’s own guidelines provide for an attempt to place an employee in a more suitable position if his or her performance is unsatisfactory, see Doe v. Hampton, 566 F.2d 265 (D.C.Cir.1977); that many of the specific charges against Jolly seem slight in view of his many years of service; and although we do not reach the issue of whether Jolly’s questioning was constitutionally permissible, we note the questionable circumstance that his interrogation was conducted by one of the very supervisors the employee has publicly accused of wrongdoing. See Porter v. Califano, 592 F.2d 770 (5th Cir. 1979). These factors further persuade us that reconsideration of the dismissal is warranted.