Brown v. Gamage
| Decision Date | 30 March 1967 |
| Docket Number | No. 20020.,20020. |
| Citation | 377 F.2d 154 |
| Parties | Harold BROWN, Secretary of the Air Force, Appellant, v. Leonard GAMAGE, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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.
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 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:
The statute has been followed in detail by the regulations — except, of course, it may be argued that any material and disputed statement admitted without cross-examination destroys the "fairness" of any hearing.
The regulations do provide for full notice of charges and of any adverse statements to be offered. They "encourage" the Board to invite material witnesses who are "reasonably available" to appear. They provide for the Air Force to require the presence of witnesses who are on active duty, provided "military requirements permit." They provide for the Board to "invite" witnesses who are civilians or members of Reserve components, but each such witness invited is told that his expenses are not reimbursable. Section 18(d) of the Regulations also provides:
The Regulations appear to have been followed explicitly by the Board of Inquiry. Cf. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957).
This record discloses that the disputed ex parte statements were part of a lengthy file made available to appellee well before the hearing. No records were withheld from appellee. Appellee was given requested adjournments in order to prepare his defense, and the site of the hearing was transferred from Illinois to California at his request also.
Appellee was furnished with both the statements from and addresses of the five officers and men. Appellee was told that statements, affidavits and depositions which he desired to submit would not be objected to, and that the list of names "should be of assistance in contacting any potential witnesses for purposes of obtaining depositions for the Board of Inquiry." Subsequently, the Recorder of the Board of Inquiry met with counsel for appellee to discuss the availability of witnesses. No request was made for Air Force assistance in the taking of depositions, and appellee did not submit any statements, affidavits or depositions from the five parties whose statements are in dispute.
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...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, 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 office......
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