Sitting by designation pursuant to 28 U.S.C. SEC. 292(a) (1976).

In 1974 the United States Civil Service Commission (Commission) *fn1 affirmed a decision by the Treasury Department's Bureau of Alcohol Tobacco and Firearms (Bureau or BATF) to remove appellant Ramon P. Johnson from his position as a special agent. The Commission in part grounded its affirmance on hearsay collected by the BATF investigator and did not assist Johnson with the production of non-Bureau employees to testify in his behalf at the hearing. Johnson sued for reinstatement but the district court granted the Government's motion for summary judgment. Johnson appeals.

We conclude that the Commission properly considered hearsay along with the other testimony and evidence presented that substantial evidence supported Johnson's removal and that the Commission's lack of subpoena power did not deprive Johnson of his due process rights. We therefore affirm.

I. BACKGROUND

On November 1 1973 BATF Special Agent John P. Rowley notified Special Agent Ramon P. Johnson a preference eligible employee *fn2 of a proposed adverse personnel action based upon certain charges against Johnson. Johnson replied to the allegations but Rowley decided the evidence supported the adverse action. In early 1974 the Bureau informed Johnson that he would be removed from his position.

Johnson appealed the BATF action to the Commission. After receiving testimony and other evidence the appeals examiner made several explicit findings of fact. During the afternoon of September 15 1973 Special Agent Johnson was off duty and driving his personal automobile. He heard a loud noise as if an object had struck his car. Looking at the point from which the sound seemed to originate Johnson observed a dark blue 1973 Pinto occupied by four males. The Pinto's occupants gestured at Johnson as their car passed on his right. Johnson suspected that the young men in the Pinto had caused the loud noise and perhaps damaged his car. He pursued the Pinto for several blocks and finally forced it to stop in the right lane.

The appeals examiner also found that despite Johnson's contentions to the contrary the weight of the evidence showed Johnson next got out of his automobile with his privately owned revolver in hand and approached the Pinto. The Pinto's driver first threw his car into reverse then headed forward. As the Pinto passed Johnson fired. The bullet struck the Pinto in the left rear quarter panel. *fn3 The appeals examiner concluded that Johnson was not in any danger of being struck by the Pinto at the time he fired his weapon.

Having made these findings the appeals examiner affirmed BATF's removal of Johnson from his position. She agreed with BATF that Johnson's behavior constituted conduct unbecoming a BATF employee was not in the public interest reflected discredit to the Bureau's public image and that consequently Johnson's removal would promote the efficiency of the Bureau. The Appeals Examining Office affirmed the examiner's decision as did the Commission's Appeals Review Board.

Johnson filed suit in the United States District Court for the District of Columbia seeking reinstatement in his job position. On October 24 1978 Court Barrington D. Parker granted the Government's motion for summary judgment. Johnson appeals.

II. SUBSTANTIAL EVIDENCE

A. Standard of Review

We must affirm Johnson's removal if we find that there was substantial evidence to support the BATF action and if we determine that the Commission was not arbitrary or capricious in some other respect. Polcover v. Secretary of the Treasury 155 U.S. App. D.C. 338 477 F.2d 1223 1226-27 (D.C.Cir.) cert. denied 414 U.S. 1001 94 S. Ct. 356 38 L. Ed. 2d 237 (1973). "Substantial evidence" is " "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion ' " Richardson v. Perales 402 U.S. 389 401 91 S. Ct. 1420 1427 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB 305 U.S. 197 229 59 S. Ct. 206 216 83 L. Ed. 126 (1938)) that is " "enough (evidence) to justify if the trial were to a jury a refusal to direct a verdict."

Illinois Central Railroad v. Norfolk & Western Railway 385 U.S. 57 66 87 S. Ct. 255 260 17 L. Ed. 2d 162 (1966) (quoting NLRB v. Columbian Enameling & Stamping Co. 306 U.S. 292 300 59 S. Ct. 501 505 83 L. Ed. 660 (1939)). Accord Harborlite Corp. v. ICC 198 U.S. App. D.C. 355 613 F.2d 1088 1093 n.10 (D.C.Cir. 1979). Despite the profligate duplication of Court Parker's labors we review the Commission's decision not the district court's. Though the district court has already inspected the agency record and found that the evidence supports the Commission's conclusion we must do so again and make an independent judgment. Polcover v. Secretary of the Treasury 477 F.2d at 1226 & nn.5-6. *fn4

B. Admissibility and Weight of the Hearsay Evidence

Two witnesses other than Johnson himself testified before the Commission's appeals examiner at Johnson's hearing: Special Agent Rowley Johnson's supervisor and Special Agent Robert M. Potter who investigated the incident.

Rowley explained BATF's firearms policy and detailed how he decided to remove Johnson. Potter reported on his inspection of the damaged Pinto and gave his conclusions concerning the bullet's trajectory. The appeals examiner also relied upon statements Potter had collected from the Pinto's occupants and from disinterested witnesses. Agent Potter included these statements in his investigative reports which he later adopted as part of his hearing testimony. Commission Hearing Transcript (Tr.) at 10. Johnson's Counsel conceded during the Commission hearing that the statements had become part of the record. Id. At 113. Nevertheless Johnson objects to the Commission's use of these statements which he characterizes as inadmissible hearsay that cannot constitute substantial evidence.

It has long been settled that the factfinder in an administrative adjudication may consider relevant and material hearsay. Montana Power Co. v. FPC 87 U.S. App. D.C. 316 185 F.2d 491 498 (D.C.Cir.1950) cert. denied 340 U.S. 947 71 S. Ct. 532 95 L. Ed. 683 (1951). See Richardson v. Perales 402 U.S. 389 402 91 S. Ct. 1420 1427 28 L. Ed. 2d 842 (1971); Opp Cotton Mills Inc. v. Administrator of the Wage and Hour Division of the Department of Labor 312 U.S. 126 155 61 S. Ct. 524 537 85 L. Ed. 624 (1941); Consolidated Edison Co. v. NLRB 305 U.S. 197 229-30 59 S. Ct. 206 216-17 83 L. Ed. 126 (1938).

Thus in Brown v. Gamage 126 U.S. App. D.C. 269 377 F.2d 154 (D.C.Cir.) cert. denied 389 U.S. 858 88 S. Ct. 103 19 L. Ed. 2d 125 (1967) we affirmed the involuntary discharge of an Air Force officer based upon statements that the Air Force had taken from five witnesses. See id. At 158. Accord Marvin Tragash Co. v. United States Department of Agriculture 524 F.2d 1255 1258 (5th Cir. 1975); Brown v. Macy 340 F.2d 115 117 (5th Cir. 1965). Congress never instructed the Commission to follow the rules of evidence as applied in Court.

Indeed the Commission's regulations specifically 5 C.F.R. SEC. 772.305(c)(4) (1974) authorized introduction of statements from witnesses. See Pascal v. United States 543 F.2d 1284 1289 211 Ct.Cl. 183 (1976); Jacobowitz v. United States 424 F.2d 555 559-60 191 Ct.Cl. 444 448-49 (1970). At the Commission hearing Johnson's Counsel himself moved the admission of a character witness's statement in lieu of the witness's testimony in person. Tr. at 243.

Not only is hearsay admissible but under the appropriate circumstances it may constitute substantial evidence. At one time federal courts adhered to the so-called "residuum rule": hearsay alone could not support an agency conclusion; some "residuum" of evidence of a type admissible in a jury trial also had to be present. School Board v. HEW 525 F.2d 900 905 (5th Cir. 1976). See 2 K. Davis Administrative Law Treatise SEC. 14.10 (1958). This rule no longer controls. We have rejected a per se approach that brands evidence as insubstantial solely because it bears the hearsay label.

See Klinestiver v. Drug Enforcement Administration 196 U.S. App. D.C. 221 606 F.2d 1128 1129 (D.C.Cir.1979). Instead we evaluate the weight each item of hearsay should receive according to the item's truthfulness reasonableness and credibility. 4 B. Mezines J. Stein & J. Gruff Administrative Law SEC. 26.02 at 26-16 to 17 (1979). See e.g. Richardson v. Perales 402 U.S. 389 402-06 91 S. Ct. 1420 1427-29 28 L. Ed. 2d 842 (1971); School Board v. HEW 525 F.2d at 906; K. Davis Administrative Law of the Seventies SEC. 14.11 (1976 & Supp.1978).

Several factors suggest that the statements made by Gregory S. Prendable Mrs. Daren Ryan and M. Theresa Fisher Commission Record (Record) vol. II at 272-74 are highly probative. See Richardson v. Perales 402 U.S. at 402-06 91 S. Ct. at 1427-1429 (standard for determining weight to be accorded hearsay); School Board v. HEW 525 F.2d at 906 (same). First all three out-of-court declarants were disinterested witnesses to the event. Second their three accounts are essentially consistent. *fn5 Third Johnson's Counsel had access to the three statements before the agency's hearing.

*fn6 Though he could not have compelled the eyewitnesses' presence at the hearing for cross-examination see pp. 193-195 infra his Counsel could have interviewed them to obtain his own statements either for additional information or impeachment. In light of these circumstances the Commission concluded correctly that the statements could be relied upon as evidentiary support for the matters they addressed

C. The Evidence Before the Commission

A survey of the evidence before the appeals examiner reveals that the Commission had a sufficient basis for upholding Johnson's removal. Johnson suspecting that the Pinto's occupants had damaged his car did not report the incident to the proper authorities. Instead he took the law into his own hands. By his own admission he pursued the Pinto through traffic and induced it to stop. Tr. at 190-91. He thereby exacerbated what would otherwise have been a minor occurrence. He increased rather than minimized the danger to himself to the Pinto's occupants and to innocent members of the public.

More important Johnson admittedly fired his revolver at the Pinto id. At 202 and the evidence shows he did not comply with the Bureau's policies when he took that action. *fn7 The BATF Criminal Enforcement Manual directs that firearms are to be used "only as a last resort" to prevent loss of life or serious bodily injury. Bureau of Alcohol Tobacco & Firearms Criminal Enforcement Manual SEC. 3132.2(1) (July 1 1973) reprinted in Record vol. II at 248 249. *fn8 Due to the risk of ricochet causing injury to innocent parties the manual discourages firing at a moving vehicle for the purpose of bringing it to a halt. Id. SEC. 3132.2(1)(c) reprinted in Record vol. II at 249.

Firing at a fleeing person is restricted to circumstances in which the officer "has reasonable cause to believe that the fleeing person poses an immediate threat to the life of the officer or others." Id. SEC. 3132.2(1)(d) reprinted in Record vol. II at 249-50.

At the time of the shooting Johnson was not in danger of being struck by the Pinto. Agent Potter's testimony and photographs establish that Johnson fired the revolver from behind and from the left of the Pinto; that is the Pinto had already passed Johnson when he fired his weapon. Tr. at 9 (testimony of Special Agent Potter); Record vol. II at 256 (exhibit 8). See note 3 supra.

Although Johnson contends in his brief that he was standing on the road's median strip and that it was after the Pinto's incursion onto the median that Johnson pulled the trigger Brief for Appellant at 4-5 the weight of the evidence is to the contrary. Johnson's report of the incident to his superior a report made only two days after the event recounts that Johnson "jumped aside" from the oncoming Pinto before he fired and only then did the Pinto strike the median strip. Memorandum from Ramon P. Johnson to BATF Special Agent in Charge (Sept. 17 1973) reprinted in Record vol. II at 293 293. All three disinterested witnesses agree that Johnson was not standing on the median strip when he fired and that the Pinto was beyond Johnson when it ran onto the median. All three also place the Pinto a considerable distance from Johnson when it passed by him. Their recollection is that Johnson was not in danger of being hit by the fleeing Pinto nor did it appear that the Pinto's driver was attempting to him. See Record vol. II at 272 (Prendable); id. at 273 (Ryan); id. At 274 (Fisher).

Not only did Johnson risk considerable danger to innocent parties who might have been struck by ricocheting bullets but Johnson testified that he actually intended a fatal result. He conceded that he aimed at the Pinto's driver Tr. At 229 that he was trying to kill the driver id. at 241 and that he missed the driver only because his aim did not account for the Pinto's speed and direction id. at 232. This too violated the BATF firearms policy. Johnson had no reason to believe that the fleeing occupants of the Pinto immediately threatened his life or the life of someone else.

Considering the testimony documents photographs and statements before the appeals examiner we are convinced that a reasonable mind might accept the evidence as adequate to show Johnson forced the Pinto to the side of the road and fired his weapon at it without sufficient justification. Johnson's behavior unnecessarily endangered property and human life and demonstrated a temperament inimical to his position as a special agent.

We recognize that as a preference eligible employee Johnson could be dismissed only for "such cause as will promote the efficiency of the service." 5 U.S.C. SEC. 7512(a) (1976) (current version at 5 U.S.C. SEC. 7513(a) (Supp. II 1978)). The agency must make some explanation of the deleterious effects the employee's actions have had or will have in the future. Norton v. Macy 135 U.S. App. D.C. 214 417 F.2d 1161 (D.C.Cir.1969). Promoting the efficiency of the service however "is not restricted to testing the employee's work-efficiency or his performance on the job." Hoover v. United States 513 F.2d 603 606 206 Ct.Cl. 640 (Ct.Cl.1975).

In Hoover for example Court of Claims affirmed the dismissal of an Internal Revenue Service tax technician who had claimed deductions on his personal federal income tax returns that he knew or ought to have known he was not entitled to claim. The technician had acted on his own time and with respect to his own affairs yet Court reasoned that the Internal Revenue Service had a justifiable interest in its image of honesty and integrity and that Hoover had done exactly what he had been employed to prevent. See id. at 607-08.

The Bureau of Alcohol Tobacco and Firearms employed Ramon Johnson as a criminal investigator. Whether on duty or off a law enforcement officer must maintain a high standard of conduct. Entrusted with special authority and armament he is expected to remain calm under pressure. The capacity to think rationally and intelligently despite adverse circumstances is more than a desirable trait; its presence could mean life instead of death for the officer himself his fellow officers and innocent bystanders. Furthermore a law enforcement officer must obey the letter of the law he has sworn to uphold. His behavior must be an example for the rest of society.

Johnson's conduct was more than just unbecoming a BATF special agent adverse to the public interest and harmful to the Bureau's public image. Johnson's removal involved more than just a fear he might embarrass the Bureau in the future. See Norton v. Macy 135 U.S. App. D.C. 214 417 F.2d 1161 1167 (D.C.Cir. 1969). The nature of an agent's work leaves little room for the kinds of error exhibited in this incident. We would be acting unreasonably and irresponsibly in our own right if we were to compel BATF to bear the risk that Johnson might again prove incapable of controlling his use of lethal force. We therefore conclude that the Commission properly determined that Johnson's removal promoted the efficiency of the service. *fn9

III. DUE PROCESS

Johnson alleges that the Commission's failure to issue subpoenas or otherwise assist in the production of witnesses deprived him of his rights to procedural due process as guaranteed by the fifth amendment. We conclude that the Commission's statutory and regulatory authority did not provide for the subpoenas Johnson requested and that this lack of authority did not deprive Johnson of his rights.

Subpoena power is not an intrinsic feature of the administrative process and courts cannot engraft subpoena authority onto an agency's charter from Congress. Hyser v. Reed 115 U.S. App. D.C. 254 318 F.2d 225 239-40 (D.C.Cir.) cert. denied 375 U.S. 957 84 S. Ct. 446 11 L. Ed. 2d 315 (1963). The Civil Service Commission had no statutory obligation to examine witnesses or hold an adversary hearing much less issue a subpoena. See 5 U.S.C. SEC.(S) 7501(b) (c) 7512(b) (1976) (current version at 5 U.S.C. SEC.(S) 7513(b) (c) (Supp. II 1978)). See also R. Vaughn Principles of Civil Service Law SEC. 5.4 at 5-47 (1976). As we stated in Deviny v. Campbell 90 U.S. App. D.C. 171 194 F.2d 876 880 (D.C.Cir.) cert. denied 344 U.S. 826 73 S. Ct. 27 97 L. Ed. 643 (1952) "(t)he Commission cannot confer upon itself the power of subpoena in the absence of a statute requiring it to hold hearings of the type involving subpoenas."

Though the Commission's regulations consistent with the lack of statutory subpoena authority only required BATF to produce any of its own employees Johnson wished to have testify see 5 C.F.R. SEC. 772.305(c)(2) (1974) Johnson sought production of the three disinterested witnesses all of whom were not government employees. The Commission being powerless to assist refused Johnson's request. Johnson now contends that this refusal infringed upon his due process rights.

Because Johnson could not be dismissed except for cause he clearly had a property interest protected by due process. See Board of Regents v. Roth 408 U.S. 564 576-78 92 S. Ct. 2701 2708-09 33 L. Ed. 2d 548 (1972). See also Bishop v. Wood 426 U.S. 341 343-47 96 S. Ct. 2074 2076-2078 48 L. Ed. 2d 684 (1976); Arnett v. Kennedy 416 U.S. 134 164-67 94 S. Ct. 1633 1649-50 40 L. Ed. 2d 15 (1974) (Powell J. concurring in part and concurring in the result in part); id. at 177-86 94 S. Ct. at 1655-60 (White J. concurring in part and dissenting in part); id. at 207-11 94 S. Ct. at 1670-72 (Marshall J. dissenting). *fn10 The mere presence of a right to due process however does not mean that Johnson's constitutional arguments must prevail for the fifth amendment only requires that a person receive his "due" process not every procedural device that he may claim or desire.

Under the line of cases beginning with Goldberg v. Kelly 397 U.S. 254 90 S. Ct. 1011 25 L. Ed. 2d 287 (1970) our determination of what process is due depends upon an analysis and weighing of three factors: the nature of the benefit or status of which the individual is being deprived; the need for the government to act efficiently and expeditiously in terminating this type of benefit or status; and the extent to which the decision making process would be aided by the presence of the procedural safeguard that the individual seeks. See Mathews v. Eldridge 424 U.S. 319 334-35 96 S. Ct. 893 902-903 47 L. Ed. 2d 18 (1976). See also Vitek v. Jones 445 U.S. 480 495-496 100 S. Ct. 1254 1264-1265 63 L. Ed. 2d 552 (1980); Goss v. Lopez 419 U.S. 565 579-84 95 S. Ct. 729 738-741 42 L. Ed. 2d 725 (1975). See generally 2 K. Davis Administrative Law Treatise SEC. 13:12 (2d ed. 1979).

Applying these three factors to the issue before us we conclude that due process does not mandate the availability of compulsory process to defend against a dismissal from government employment. To be sure the interest of the employee in retaining his status is significant and certain procedural safeguards may well be constitutionally required. Moreover an employment termination case often revolves around determinations of fact determinations that would be less prone to error if live witnesses could be produced by the employee. On the other hand decisions to dismiss an employee are discretionary to a significant extent and to this extent the presence or absence of specific factual evidence may not control on the dismissal question. The criteria considered when assigning weight to hearsay evidence see p. 191 supra further undercut the need for direct testimony inasmuch as hearsay can be relied upon only if it is highly probative. Finally the government must be allowed to process efficiently the dismissal of employees who should no longer be in the government service. As Justice Powell noted in Arnett v. Kennedy 416 U.S. 134 94 S. Ct. 1633 40 L. Ed. 2d 15 (1974):

In the present case the Government's interest and hence the public's interest is the maintenance of employee efficiency and discipline. Such factors are essential if the Government is to perform its responsibilities effectively and economically. To this end the Government as an employer must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place foster disharmony and ultimately impair the efficiency of an office or agency.

Id. at 168 94 S. Ct. at 1651 (Powell J. concurring in part and concurring in the result in part). To clutter the dismissal procedure with the potentially extensive costly intrusive and time-consuming use of subpoenas might unduly protract government decision making and hamper the government's ability to remove personnel who do not belong on the government payroll. In consideration of all these factors we do not believe that the Constitution requires us to overturn the judgment of Congress that the Commission should not have the power to issue subpoenas. Cf. Arnett v. Kennedy 416 U.S. 134 94 S. Ct. 1633 40 L. Ed. 2d 15 (1974) (due process does not require a full evidentiary hearing prior to the removal of a nonprobationary government employee). *fn11

IV. CONCLUSION

Substantial evidence supported Johnson's removal from his position as a BATF criminal investigator and the Civil Service Commission accorded Johnson the full measure of his constitutional rights. *fn12 Court Parker's decision granting summary judgment to the Government is therefore