Brown v. Macy, 21125.
| Decision Date | 15 January 1965 |
| Docket Number | No. 21125.,21125. |
| Parties | Festus J. BROWN, Appellant, v. John W. MACY, Jr., Individually and as Chairman of the U. S. Civil Service Commission, et al., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jack N. Rogers, Baton Rouge, La., for appellant.
Edward Berlin, Sherman L. Cohn, Dept of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Louis C. LaCour, U. S. Atty., for appellees.
Before MARIS,* RIVES and BROWN, Circuit Judges.
The plaintiff appeals from a summary judgment entered by the District Court for the Eastern District of Louisiana in favor of the defendants, who are the members of the United States Civil Service Commission and the United States Commissioner of Customs, respectively, in his suit seeking a declaratory judgment that his removal for political activity from office as a customs inspector by the Commissioner of Customs upon the order of the Civil Service Commission was illegally accomplished. The plaintiff asserts in this regard that he was denied the right to cross examine witnesses at his hearing before the Commission's examiner and that the charges specified in the letter of charges were improperly enlarged at his hearing. The district court could find no merit in these contentions and neither can we.
The witnesses to whom the plaintiff refers were three individuals who had made statements to a Commission investigator to which the investigator had made affidavits and to which he testified at the hearing. Copies of these affidavits were supplied to the plaintiff prior to the hearing. The Commission requested the three individuals to attend the hearing but they failed to do so. Although the plaintiff made no attempt to secure their attendance he now complains that the Commission by failing to produce them at the hearing denied him the right, which he asserts was his, to cross examine them. The issue before the district court in this case was whether under the statutes or regulations the plaintiff had a right to have the three individuals produced at his hearing for cross examination on the statements which they gave to the investigator and which the Commission considered in reaching its decision. The plaintiff concedes that the court had no power to review the merits of his dismissal, that being a matter confided to the discretion of the executive branch of the government. Hargett v. Summerfield, 1957, 100 U.S.App.D.C. 85, 243 F.2d 29, cert. den. 353 U.S. 970, 77 S.Ct. 1060, 1 L.Ed.2d 1137.
It seems clear that the plaintiff did not have the procedural right which he here claims. We are referred to no statute which has conferred it. Nor does the pertinent regulation1 under the Hatch Act do so. It merely provides for cross examination of those witnesses who are actually produced at a hearing. The regulation does not, as the plaintiff in effect argues, deny to the Commission the right to consider pertinent...
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Johnson v. U.S.
...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 the courts. Indeed, the Commission......
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...1959, 359 U.S. 535, 79 S.Ct. 986, 3 L.Ed.2d 1012; Service v. Dulles, 1957, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403; Brown v. Macy, 5 Cir., 1965, 340 F.2d 115; Hanifan v. United States, Ct.Cl., 1965, 354 F.2d 358 Dec. 17, 1965; Begendorf v. United States, 1965, 340 F.2d 363, 169 Ct.Cl. 2......
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......Thomas, III, . v. . Ludwig J. ANDOLSEK and Robert E. Hampton, Members, and John W. Macy, Jr., Chairman, United States Civil Service Commission. . Civ. No. 16460. . United States ...Review may be had in an action under 28 U.S.C.A. §§ 1346(a), 1361 and 1391(e). See Brown v. Macy, E. D.La., 222 F.Supp. 639 (1963), aff'd 5 Cir., 340 F.2d 115 (1965). . ......
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...v. Day, 114 U.S.App.D.C. 242, 314 F.2d 247 (1962); Brancadora v. Federal Nat'l Mtg. Ass'n, 344 F.2d 933 (9th Cir. 1965); Brown v. Macy, 340 F.2d 115 (5th Cir. 1965); Jenkins v. Macy, 357 F.2d 62 (8th Cir. 1966). In McEachern v. United States, 321 F.2d 31 (1963), the Fourth Circuit also reco......
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