Opinion for the court PER CURIAM.
Opinion dissenting filed by Circuit Judge MIKVA.
PER CURIAM:
Petitioner Drew, a Medical Records Technician with the Department of the Navy in San Diego, California, was dismissed from his post for performing "unacceptably" as defined in 5 U.S.C. § 4303 (Supp. II 1978). On review, the Merit Systems Protection Board ("Board") affirmed that dismissal. Subsequently, in a case with similar facts, the Board invalidated the procedure earlier followed in dismissing petitioner. The Navy, acknowledging that Drew's dismissal could not stand, requested reconsideration (J.A. 376) of petitioner's dismissal under a second statute, 5 U.S.C. Chapter 75, which authorized removal of employees "to promote the efficiency of the Service." The reconsideration resulted again in petitioner's dismissal, the Board affirmed and petitioner appealed. We affirm the Board's decision.
I.
On June 7, 1979, petitioner was notified by his supervising officer of an impending recommendation to the Chief of Naval Patient Services that he (petitioner) be dismissed for failure to perform two critical elements of his job. Petitioner responded by alleging that the proposed dismissal action was in direct retaliation for his union activities. On July 9, 1979, the Chief of Patient Services ordered the dismissal.
On July 20, 1979 petitioner's representative, the National Representative of the American Federation of Government Employees (J.A. 5, 227), filed an appeal to the Board, which reviewed the dismissal under the standards of Chapter 43, i.e., 5 U.S.C. § 4303. Pursuant to that section, an agency may "remove an employee for unacceptable performance." Section 4301(3) defines "unacceptable performance" as "performance of an employee which fails to meet established performance standards in one or more critical elements of such employee's position." The Board ruled under Chapter 43 that petitioner's alleged failure to perform the critical elements of his position was sustained by the requisite substantial evidence, pursuant to 5 U.S.C. § 7701(c)(1)(A).
Subsequently the Board reopened the appeal landing a determination in Wells v. Harris (J.A. 210). On December 5, the Board decided that case, in which it held, with respect to another dismissal under Chapter 43, that an agency could not dismiss an employee under § 4303 without having first established a performance appraisal system under § 4302. Such system had not been established in Drew's agency. Accordingly, on December 26, the Board remanded petitioner's case to the Naval field office and ordered "reconsideration" in light of Wells. (J.A. 208-209).
On January 23, 1980, the Presiding Official of the Field Office of the Board wrote a letter to the Civilian Personnel Officer of the Navy, who had presented the case against Drew. Petitioner and his representative received notice of this letter by a copy thereof. This letter indicates that petitioner and his representative were also furnished with the Board's remand order and its entire decision in Wells v. Harris. The Board Order (J.A. 208-209) gave petitioner full notice of the status of his case, the reasons therefor, and the fact that under the Board's decision the Navy could seek his dismissal under Chapter 75 should a "preponderance of the evidence" show such action was taken "for such cause as will promote the efficiency of the service." (J.A. 209).
On February 13, 1980, the Navy requested the Board to reconsider petitioner's dismissal under the standards of Chapter 75. (J.A. 213). In that request, the Navy, referring the Board to the original notice sent to petitioner for a review of his job-related failures, stated that his deficient work performance, as had been set forth in the Chapter 43 proceeding, also satisfied the "efficiency of the service" standard for dismissal under Chapter 75.
The appellant's poor work performance adversely affected the ability of the Center to accomplish this portion of its mission in a timely and efficient manner. The showing by the agency, through records kept by the employee, that appellant's total work production was far below that of his co-workers performing the same type of work as well as being short of the minimum standard identified as that necessary for efficient government operation leads to the unavoidable conclusion that his removal from employment with the agency and the subsequent placement of a qualified employee into the vacated position will promote the efficiency of the service.
(J.A. 219).
On February 19, 1980, the Board advised Drew's representative (copy to Drew) as follows:
I am enclosing a copy of the February 13, 1980 letter from the agency in which it acknowledges that Mr. Drew was not separated under a performance appraisal system approved by the Office of Personnel Management pursuant to 5 U.S.C. section 4303. Further, the agency elected to request reconsideration of the case, and a new adjudication, under the standards of 5 U.S.C. Chapter 75.
In further compliance with the Order, you are hereby granted twenty (20) days from receipt of this letter to present any supplemental documentary or testimonial evidence [ ] concerning the issue of wheth er, 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) (emphasis added).
Drew exercised his right "to answer . . . in writing . in support of his . " position by filing on February 19, 1980, a six page single spaced letter with the Board. (J.A. 221-226). The letter presents Drew's case in great detail.
The Navy's letter of February 13, 1980 (J.A. 213-219), the February 19, 1980 letter of the Board's Field Office (J.A. 212) and Drew's letter of February 19, 1980) (J.A. 221-227) indicate that Drew and his representative were given adequate notice of the "specific reasons for the proposed action" (§ 7503(b)(1)) and the evidence necessary to dismiss him under Chapter 75 and that they fully understood the charges and the law applicable thereto (J.A. 212-227).
The statutory requirement that "[a]n employee against whom an action is proposed is entitled to — (1) at least 30 days' advance written notice . . . stating the specific reasons for the proposed action . . .," 5 U.S.C. § 7513(b) was thus satisfied by delivery of the above mentioned documents to Drew and to his "representative in the case." (J.A. 221).
On April 4, 1980, the presiding Naval official dismissed petitioner for reasons authorized by Chapter 75. Petitioner appealed once again to the Board. On October 9, the Board affirmed the decision and petitioner filed the instant appeal.
II.
Petitioner argues that the notice he received that the Board was proceeding to seek his dismissal under Chapter 75 did not properly inform him of the nature of the proceedings against him. Specifically, he contends the inclusion in that notice of the Chapter 43 terms of art "critical elements" and "performance standards" diverted petitioner's attention from the true charges pending, thus precluding him from constructing an adequate defense in his behalf.
We find this argument unpersuasive. As noted above, petitioner was represented by the National Representative of the American Federation of Government Employees and they were fully informed that the dismissal under Chapter 43 had been vacated and that dismissal was now being sought under Chapter 75 for the specific reasons subsequently set forth by the Navy. The February 19, 1980 letter from the Board to petitioner "concerning the issue of whether, by a preponderance of the evidence, the . [Chapter 75] . agency action was taken for 'such cause as will promote the efficiency of the service' " could not have described the issues more concisely or accurately. Drew was personally notified in plain language, as was his professional representative who represented him throughout a 11 the proceedings. That Drew and his representative had full knowledge of the precise charges Drew faced, and of the substantive and evidentiary standards applicable thereto, is fully indicated, as noted above, by Drew's six page letter to the Board responding to the charges brought under Chapter 75 (J.A. 221-227). That he and his representative were fully cognizant that he was being charged under Chapter 75 is apparent from the number of times his letter contends his dismissal would not promote "the efficiency of the service" standard which Chapter 75 prescribes. (J.A. 24 Ys 6, 7). Any consideration of the "efficiency of the service" and Drew's work deficiencies would necessarily involve his "performance on the job."
Inclusion of some Chapter 43 terminology in the Navy's petition for reconsideration, which was attached to the letter petitioner received from the Board, does not detract from the conclusion that his dismissal could promote the efficiency of the service. There is considerable similarity and over-lapping between removal of an employee for "unacceptable performance" and to "promote the efficiency of the service." Both standards have much in common. On this point the Board held in Andrade v. Department of the Air Force, MSPB Docket Nos. SF043299011-80-84 through DC043209002-80-107 (March 24, 1980) (J.A. 293):
Notice to the employees of the proposed action under Chapter 43 adequately met the notification requirements of Chapter 75. Initial invocation by the agency of the incorrect chapter of the U.S.Code has not been shown by the notices for reconsideration to have been harmful error, since there has been no showing that application of Chapter 75 would likely have affected the original agency decision, and our orders have provided for a new agency election on whether to proceed now under Chapter 75.
It is thus clear that petitioner received adequate notice as required by § 7503(b) that Chapter 75 proceedings had been initiated against him.
Petitioner argues that even if adequate notice was received, the Chapter 75 dismissal action must fail insofar as it was predicated on alleged inadequate performance grounds ordinarily applicable solely to Chapter 43 proceedings. 5 U.S.C. § 7512(D) provides, "[t]his subchapter . . . does not apply to a reduction in grade or removal under section 4303 of this title.... " As § 4303 removals stem from inadequate performance, petitioner reasons that such grounds may not be used to dismiss petitioner under Chapter 75. This argument is unfounded. In amending Chapter 43 in 1978 by establishing the aforementioned performance appraisal systems, Congress stipulated that such systems need not be fully implemented until October 1, 1981. Until such systems were established, Wells held that federal employees could not properly be dismissed under Chapter 43 and that in the interim Chapter 75 dismissals could proceed on performance-based grounds. As the Board noted in Wells,
Chapter 75 remains available for adverse actions that are performance-related. Section 7512(D) excludes from Chapter 75 only § 4303 actions for "unacceptable performance" as defined in § 4301(3). Nothing in § 7512 prevents action under the provisions of Chapter 75 merely because the action is performance-based. . . . [T]he higher "preponderance of the evidence" standard and the "efficiency of the service" requirement would apply to such actions, but we have found nothing to indicate that Congress intended to prevent agencies from meeting those requirements where they are able to do so.
Petitioner's removal under Chapter 75 on performance-based grounds that would promote the efficiency of the service was proved by a preponderance of the evidence and thus conformed with the applicable statute. The ruling of the Board under review is affirmed.
Judgment accordingly.
. The two critical elements were (1) the analysis, extracting, coding, and recording of inpatient medical records; and (2) the coding of medical record face sheets called NAVMED 6300/5's (J.A. at 8-11).
. Wells v. Harris, MSPB Order No. RR-80-3.
. § 4302 provides, inter alia, that
(a) Each agency shall develop one or more performance appraisal systems which—
(1) provide for periodic appraisals of job performance of employees;
(2) encourage employee participation in establishing performance standards; and
(3)use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, reducing in grade, retaining, and removing employees .
(b) Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for—
(6) reassigning, reducing in grade, or removing employees who continue to have unacceptable performance, but only after an opportunity to demonstrate acceptable performance.
. In accord with the Board's directive you, appellant, and his representative are hereby provided individual copies of MSPB Order No. RR-80-3, Memorandum Opinion and Order in the matter of Wells vs. Harris.
(Board Letter of January 23, 1980 (J.A. 210-211».
. The standard of proof ("by a preponderance of the evidence") required to sustain an agency action on appeal in Chapter 75 adverse actions is a higher one than that for unacceptable performance actions under section 4303, which requires substantial evidence.
. This statement that Drew could present additional "testimonial evidence" called his attention to his right to a hearing. This is one of his rights under 5 U.S.C. § 7701(a) ("an appellant shall have the right — (1) to a hearing for which a transcript will be kept ."). Drew requested and received a hearing in the Chapter 43 proceeding. The dissent contends that Drew was not "afforded [his] . hearing rights" in the Chapter 75 proceeding. However, neither Drew nor his representative requested any additional hearing in the Chapter 75 proceeding. Instead Drew was content to file a six page single spaced written statement and argument (J.A. 221-227) and neither Drew nor his attorney make any claim on this appeal that Drew was denied any right to a hearing. Since he received a hearing on his Chapter 43 proceeding, and was informed he could introduce "testimonial evidence" in his Chapter 75 proceeding, and he was represented throughout by the National Representative of the American Federation of Government Employees and did not request a hearing, it is too much to contend that he was not aware of and was denied his right to a hearing.
. See 5 U.S.C. § 4302(b)(2).
. Wells v. Harris, supra, mem. op. at 5.
. Petitioner contends that his dismissal under Chapter 43 was a "prohibited personnel practice" that was not subject to reconsideration under Chapter 75. Specifically, petitioner notes that his Chapter 43 dismissal was accomplished without the requisite review under the performance appraisal system mandated by 5 U.S.C. § 4302, and claims that the dismissal action accordingly "violates . [a] law . implementing . merit system principles." 5 U.S.C. § 2302(b)(ll) (defining prohibited personnel practices). Under 5 U.S.C. § 7701(c)(2), the Board may not sustain an agency decision if there was "(A) harmful error in the application of the agency's procedures in arriving at such decision; (B) . the decision was based on any prohibited personnel practice .; or (C) . the decision was not in accordance with law." Thus, petitioner concludes, the Board may not sustain his dismissal under Chapter 75 where as here the original dismissal was improper.
This argument is without foundation in this case for two reasons. First, it presumes that once the Navy has initiated dismissal proceedings under one chapter, it may not later seek dismissal under another chapter. This presumption is groundless. A party in petitioner's position may rightly be dismissed under the applicable criteria of any relevant chapter.
Moreover, petitioner's dismissal was clearly not dependent upon the conclusions reached in the course of -the alleged prohibited personnel practice. The Board noted on this point.
The agency did not remove [petitioner] because it believed Chapter 43 to be applicable. The agency removed [petitioner] because of dissatisfaction with his work. If the agency had realized at the beginning that it was premature to use the new Chapter 43 as authority for removing an employee, it sim ply would have removed [petitioner] under Chapter 75 proceedings as it ultimately has done.
(J.A. 286). The record thus indicates that petitioner's dismissal was based solely on his deficient performance, a permissible criteria for such a dismissal as noted in Wells. It was not based as petitioner alleges on the criteria improperly applied in the previous Chapter 43 proceeding. Petitioner's attempt to identify a prejudicial prohibited personnel practice must therefore fail.