Brown v. Gamage, No. 20020.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtEDWARDS, Circuit
Citation377 F.2d 154
Docket NumberNo. 20020.
Decision Date30 March 1967
PartiesHarold BROWN, Secretary of the Air Force, Appellant, v. Leonard GAMAGE, Appellee.

377 F.2d 154 (1967)

Harold BROWN, Secretary of the Air Force, Appellant,
v.
Leonard GAMAGE, Appellee.

No. 20020.

United States Court of Appeals District of Columbia Circuit.

Argued November 9, 1966.

Decided March 30, 1967.

Petition for Rehearing Denied May 23, 1967.


377 F.2d 155

Mr. David L. Rose, Atty., Dept. of Justice, with whom Asst. Atty. Gen. John W. Douglas, Messrs. David G. Bress, U. S. Atty., and Edward Berlin, Atty., Dept. of Justice, were on the brief, for appellant. Mr. Frank Q. Nebeker, Asst. U. S. Atty., also entered an appearance for appellant.

Mr. Alfred L. Scanlan, Washington, D. C., and Mr. John G. Sobieski, Los Angeles, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of court, for appellee.

Before BAZELON, Chief Judge, BURGER, Circuit Judge, and EDWARDS,* Circuit Judge for the United States Court of Appeals for the Sixth Circuit.

Petition for Rehearing en banc Denied May 23, 1967.

EDWARDS, Circuit Judge:

In this case Lieut. Col. Leonard A. Gamage appeals from his compelled discharge from the active service of the United States Air Force. The Board of Inquiry which heard and sustained charges against him of falsifying weather reports accorded him an honorable discharge with retirement pay.

In the declaratory judgment proceedings brought before the United States District Court by appellee Gamage, the United States District Judge held that Lieut. Gamage had not been given a "fair hearing." He held the discharge to be "null and void" for failure to observe the statutory requirement of 10 U.S.C. § 8792(b) (1964), which provides for "a fair and impartial hearing before a board of inquiry."

The United States District Judge held "To find a person guilty of a serious dereliction of any kind where part of the testimony against him consists of ex parte written statements does not constitute a fair hearing, as we use that term. * * *" He directed the Secretary of the Air Force to restore appellee to active duty.

The District Judge found no failure on the part of the Air Force to provide Gamage with an "impartial" hearing. Nor do we.

The District Judge's findings as to "unfairness" were based entirely upon the admission of statements taken by the Air Force, without participation of Gamage or his counsel in the taking of such statements. These statements were admitted against Gamage in the course of the hearing without the persons who had made them being produced at the hearing themselves. This, of course, raises the classic case of failure of opportunity for confrontation familiar in criminal trial proceedings. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

We do not, however, deal here with a criminal trial. The hearing with which we are concerned is an administrative procedure calculated to determine the employment rights of an Air Force officer. In addition, we deal with all of the complex additional problems posed by the fact that the agency involved is one of the military services of the United States. Clearly, Gamage has no constitutional right to active duty as an Air Force Lieut. Colonel. Clearly, also, we do not review this discharge against the constitutional standard of the Sixth Amendment of the United States Constitution, since by specific language it applies "in all criminal prosecutions." U.S. Const. amend. VI.

But Congress has provided by applicable statute for a "fair and impartial

377 F.2d 156
hearing." These words we assume should be interpreted as they were used — to apply to an administrative hearing in a military service

Facts which are relevant to our decision include the following: Four of the five witnesses whose ex parte statements were introduced were retired or inactive Air Force personnel. The fifth was an officer on active duty in England at the time of the hearing. Their statements (or certainly some of them) were material to the issues posed by the charges against appellee. Eighteen witnesses were present in person and subject to cross-examination, and their testimony covered the same general charges. It is also true, however, that the testimony for appellee concededly created a dispute of fact as to these issues which the Board of Inquiry had to resolve. Clearly, the ex parte statements were before the Board for consideration and they could have prejudiced the result.

The statute which we are called upon to construe provides:

"§ 8792. Boards of inquiry: composition; duties.
"(a) Boards of inquiry, each composed of three or more general officers, shall be convened at such places as the Secretary of the Air Force may prescribe, to receive evidence and make findings and recommendations whether an officer, required to show cause under section 8791 of this title, shall be retained on the active list of the Regular Air Force.
"(b) A fair and impartial hearing before a board of inquiry shall be given to each officer so required to show cause for retention.
"(c) If a board of inquiry determines that the officer has failed to establish that he should be retained on the active list, it shall send the record of its proceedings to a board of review.
"(d) If a board of inquiry determines that the officer has established that he should be retained on the active list, his case is closed. However, at any future time, he may be again required to show cause for retention under section 8791 of this title." Chapter 860, Title 10, U.S.C. § 8792. (Emphasis added.)
"§ 8793. Boards of review: composition; duties
"(a) Boards of review, each composed of three or more general officers, shall be convened by the Secretary of the Air Force, at such times as he may prescribe, to review the records of cases of officers recommended by boards of inquiry for removal from the active list of the Regular Air Force under section 8792 of this title.
"(b) If, after reviewing the record of the case, a board of review determines that the officer has failed to establish that he should be retained on the active list, it shall send its recommendation to the Secretary for his action.
"(c) If, after reviewing the record of the case, a board of review determines that the officer has established that he should be retained on the active list, his case is closed. However, at any future time, he may be again required to show cause for retention under section 8791 of this title." Chapter 860, Title 10, U.S.C. § 8793.
"§ 8795. Rights and procedures
"Each officer under consideration for removal from the active list of the Regular Air Force under this chapter shall be —
"(1) notified in writing of the charges against him, at least 30 days before the hearing of his case by a board of inquiry, for which he is being required to show cause for retention on the active list;
"(2) allowed reasonable time, as determined by the board of inquiry under regulations of the Secretary
377 F.2d 157
of the Air Force, to prepare his defense;
"(3) allowed to appear in person and by counsel at proceedings before a board of inquiry; and
"(4) allowed full access to, and furnished copies of, records relevant to his case at all stages of the proceeding, except that a board shall withhold any records that the Secretary determines should be withheld in the interests of national security.
"In
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10 practice notes
  • Part II
    • United States
    • Federal Register August 14, 2008
    • August 14, 2008
    ...v. Securities and Exchange Commission, 450 U.S. 91, 98 n.17 (1981); Richardson v. Perales, 402 U.S. 389, 410- 411 (1971); Brown v. Gamage, 377 F.2d 154, 158 (D.C. Cir.), cert. denied, 389 U.S. 858 (1967); Annotation, Hearsay Evidence In Proceedings Before Federal Administrative Agencies, 6 ......
  • Johnson v. U.S., No. 79-1154
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 8, 1980
    ...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, 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 base......
  • Kelly v. Wyman, No. 68 Civ. 394
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 21, 1969
    ...Allen, 326 F.2d 605, 608 (5th Cir. 1964); Rios v. Hackney, 294 F.Supp. 885 (N.D.Tex. 1967). But cf. 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), criticized in 20 Stan.L.Rev. 360 38 See note 7 supra. 39 "Each......
  • Arnheiter v. Ignatius, No. 48414.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 22, 1968
    ...denied relief either upon the ground of non-reviewability or after review upon the merits. See, Brown v. Gamage, 126 U.S.App. D.C. 269, 377 F.2d 154 (1967); Kennedy v. Commandant, 258 F.Supp. 967 (D. Kan.1966). See also, Sohm v. Dillon, 231 F.Supp. 973 (D.C.1964) and 235 F.Supp. 450 (D.C.19......
  • Request a trial to view additional results
9 cases
  • Johnson v. U.S., No. 79-1154
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 8, 1980
    ...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, 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 base......
  • Kelly v. Wyman, No. 68 Civ. 394
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 21, 1969
    ...Allen, 326 F.2d 605, 608 (5th Cir. 1964); Rios v. Hackney, 294 F.Supp. 885 (N.D.Tex. 1967). But cf. 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), criticized in 20 Stan.L.Rev. 360 38 See note 7 supra. 39 "Each......
  • Arnheiter v. Ignatius, No. 48414.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 22, 1968
    ...denied relief either upon the ground of non-reviewability or after review upon the merits. See, Brown v. Gamage, 126 U.S.App. D.C. 269, 377 F.2d 154 (1967); Kennedy v. Commandant, 258 F.Supp. 967 (D. Kan.1966). See also, Sohm v. Dillon, 231 F.Supp. 973 (D.C.1964) and 235 F.Supp. 450 (D.C.19......
  • May Trucking Co. v. U.S., No. 76-2068
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 7, 1979
    ...decision), J.App. 31. 41 Hearsay generally is admissible in administrative hearings. E. g., Brown v. Gamage, 126 U.S.App.D.C. 269, 273, 377 F.2d 154, 158, Cert. denied, 389 U.S. 858, 88 S.Ct. 103, 19 L.Ed.2d 125 42 Anthony G. Ayala, supra note 2, at 20-21 (initial decision), J.App. 31-32. 4......
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