concurring in the result.
I concur in the reversal but, respectfully, am unable to join in much that is said in this opinion.
Its most basic flaw is that it tells the board what to do in future cases: ,“[w]e direct the board to consider the following evidentiary factors * * *,” and, presumably, no others. It is an exercise in rule making. Now the court always should state the rule of law on which it relies, and this rule may and often will apply to cases other than the one before the court. Here, however, of five “evidentiary factors,” the board is ordered to consider in future cases, the fourth and fifth do not seem even to relate to any issue the opinion deals with, though they may have been suggested by other writings in this case, and by the Supreme Court authority cited, Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). We are in the midst of a national controversy about the “activist judge” and the need to return to basic principles distinguishing the legislative and the judicial functions.
No two cases are the same, and no case not yet before the court is foreseeable in all its aspects. The wise judge retains his freedom to deal with the unexpected by avoiding commitments how he will decide cases whose ramifications he cannot foresee. A senior member of this court, Judge Laramore, when active, used to say it is the unnecessary discourse that comes back to haunt one. Surely this simple case can be decided simply, on its facts.
If we are to prescribe rules, surely factor two should be not the listener’s “apprehension of harm” alone, but also that of the person allegedly threatened, if he becomes aware of the alleged threat by its being repeated to him.
Mr. Metz’s part of the school’s curriculum was the course in how to drive a car having an endangered official passenger, so as to elude assassins. The pupils had to demonstrate their mastery of the necessary skills one by one, driving a car with the instructor, Mr. Metz, posing as the passenger. His was a unique and stressful occupation, as others realized as much as he did himself. Believing he was not getting the recognition he should, he indulged in overwrought hyperbole. It reached the ears of his supervisors who gave him a chance to explain and retract, which he did not take, not recognizing the danger to his job and career. Basically the problem arises from the fact that an enforcement agent (and especially an instructor of such agents, who must be a role model), is supposed to *1005be always cool and unflappable, to which ideal Metz had failed to conform. On the other hand, their supervisors are not supposed to be easily frightened. What Metz most needed was a three-week paid vacation on some tropic and eventless isle, but this is the last thing our benevolent government is likely to offer its overwrought employees.
In ordinary speech, nothing is more common than language importing mayhem or murder. Examples are: “When word of this blunder gets out, heads will roll!” “I cut him off at the knees!” “I am tired of repeating this argument and having my head bloodied!” “When you hear this, it will kill you!” “All he wants is an arm and a leg” (of one driving a hard bargain).
Metz’s supervisors at first supposed his overwrought language denoted a mental affliction, but attempts to deal with it along that line collapsed when psychiatrists ruled that he was not dangerous to himself or others. An arrest warrant apparently was never executed. The “adverse action” now before us followed.
In fairness to the agency, it has to be admitted that even as “reformed” in 1978, the Civil Service laws are still not flexible in the means they afford supervisors to deal with somewhat bizarre personnel problems, not falling into the well-worn slots of mental disability, inadequate performance, or willful misconduct. And, in our far-flung civil service, even the bizarre is the ordinary somewhere. This, of course, does not mean that out of sympathy for executive problems we must condone application of the stigma of misconduct to a deserving employee when the record fails to show misconduct has occurred.
The Watts case teaches caution in interpreting alleged “threats” too literally. But that was a criminal case and, moreover, one with first amendment implications. It could well be that a “threat” must be more seriously intended in a criminal case and in an environment of protected political speech. I think we are more on our own here than our opinion recognizes. So all the more we need more cases before declaring rules.
To me it suffices that, excluding evidence disbelieved by the trier of fact, there is no evidence that Metz intended to state that he really would kill or commit serious bodily harm against himself or anyone else, no evidence that his listeners so understood him, or that the supervisors, when they heard about it, believed that they were threatened. So our panel unanimously holds. His choice of language was that normal to overwrought persons and no doubt upsetting, but a misconduct termination is for life. Since it is the function of judges to interpret the meaning of words, in course of assigning legal consequences to them, their interpretation must be controlling here.
The opinion does not state whether the panel reinstates the suspension of 30 days ordered by the presiding official, or directs a holding completely exonerating petitioner. I favor the latter, for the reason that “inappropriate remarks,” the offense imputed by the presiding official, was not charged and is not, I think, a “lesser included offense,” as that term is normally understood.