Brown v. Zuckert, 14934.
| Decision Date | 26 July 1965 |
| Docket Number | No. 14934.,14934. |
| Citation | 349 F.2d 461 |
| Parties | Eddie L. BROWN, Plaintiff-Appellant, v. Eugene M. ZUCKERT, Secretary of the Air Force, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Ellis E. Reid, Chicago, Ill., for plaintiff-appellant.
Morton Hollander, Chief, Appellate Section, John C. Eldridge, Atty., Dept. of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Edward V. Hanrahan, U. S. Atty., for defendants-appellees.
Before DUFFY, KNOCH and KILEY, Circuit Judges.
Plaintiff is a former veterans' preference eligible civilian employee of the United States Air Force.1 The defendants are, respectively, the Secretary of the Air Force and the Chairman of the United States Civil Service Commission. Plaintiff seeks to obtain reinstatement as an employee of the United States, more particularly, he has requested a judicial review of his removal from his former position as a tractor-trailer operator with the 64th Troop Carrier Squadron, O'Hare International Airport, Chicago, Illinois.
The District Court denied plaintiff's motion for a summary judgment but granted the defendants' motion for summary judgment. This appeal followed, plaintiff claiming the District Court should have ordered his reinstatement with pay.
By letter of December 8, 1961, plaintiff was notified that it was proposed to remove him from his position for violation of safety regulations, to-wit: driving an aircraft refueling tractor-trailer unit under the wing of a C-119 aircraft while the engines of the aircraft were running and the aircraft was moving. The names of two witnesses were given. The letter stated "It is proposed to remove you from your position with the Air Force not earlier than 30 calendar days after your receipt of this letter for a second major violation of safety practice and regulations." An earlier offense in August 1959, resulting in a 10-day suspension, was also described in the letter. The plaintiff was informed that he could answer the charges personally and/or in writing and could submit affidavits.
Brown submitted a written reply on December 21, 1961, in which he denied the charges. By letter dated January 5, 1962, Brown was notified he would be removed on January 12, 1962, and that he would have ten days in which to appeal under the Air Force Grievance Procedure, or he could appeal to the United States Civil Service Commission, as provided for in Section 14 of the Veterans' Preference Act, 5 U.S.C. § 863.
A timely appeal was taken under the Air Force Grievance Procedure, but Brown then withdrew that appeal and, instead, appealed his discharge to the United States Civil Service Commission.2
Prior to the hearing by the Civil Service Commission, plaintiff wrote a letter to the Commission's Regional Director requesting that five named individuals be present at the hearing so that they could be cross-examined. Among these were Messrs. Czub and Ten Eyck who had signed statements that they had witnessed plaintiff's violation of the safety regulations. These persons were not present at the hearing.
On August 15, 1962, the Commission rendered a decision holding that none of the plaintiff's procedural rights were violated, that his removal from government employment was warranted, and that the removal was effected for the purpose of promoting efficiency of the service.3
Plaintiff appealed to the Civil Service Commission Board of Appeals and Review which affirmed the decision of the Chicago Regional Office. Plaintiff then filed his complaint in the instant case seeking a judicial review of the administrative action and seeking an order reinstating him to his previous employment.
After the filing of the complaint herein, defendants, while in no way conceding that plaintiff's procedural rights had been violated, nevertheless offered the plaintiff a hearing de novo before the Civil Service Commission at which the Air Force would use every reasonable effort to produce the witnesses requested by plaintiff. Defendants moved the Court to remand the case to the Commission. Neither the Civil Service Commission nor the Air Force has the power of subpoena.4 Plaintiff rejected the offer and the District Court denied defendants' motion to remand the case.
During the oral argument before this Court, defendants again renewed the offer and again the plaintiff, through his attorney, refused to accept.
Plaintiff's claim rests on two grounds — 1) the administrative finding was unsupported by substantial evidence, and 2) plaintiff's procedural rights were violated because the Air Force did not produce at the administrative hearing, certain persons whom plaintiff desired to cross-examine.
We first consider the scope of review which a court has in an employee removal case such as this. "Judicial review of a dismissal from federal employment, a matter of executive agency discretion, is limited to a determination of whether the required procedural steps have been substantially complied with." Seebach v. Cullen, 9 Cir., 338 F.2d 663, 664.
Another statement of the applicable rule as to the scope of review appears in the recent case of McTiernan v. Gronouski, 2 Cir., 337 F.2d 31, 34 (1964) — "The taking of disciplinary action against government employees, including the invocation of the sanction of dismissal, is a matter of executive discretion, and is subject to judicial supervision only to the extent required to insure `substantial compliance with the pertinent statutory procedures provided by Congress;' * * * and to guard against arbitrary or capricious action. * * *"
In Seebach, supra, 338 F.2d at page 665, the Court emphasized "* * * We do not review findings of fact in cases such as this." We agree! It follows that plaintiff's arguments directed to the unsubstantiality of the evidence is not the basis for judicial review. We, therefore, turn to a consideration of plaintiff's claim that his procedural rights were violated.
The nub of plaintiff's complaint is that his attorney had no opportunity to cross-examine witnesses, in particular, Messrs. Czub and Ten Eyck. It should be noted that in the discrimination hearing, Mr. Czub appeared and testified, and was closely cross-examined by plaintiff's attorney. Czub testified that plaintiff's truck was "pretty close to the wing in my opinion even right under the wing." This testimony corroborated Czub's written statement. The Civil Service Commission had the right to consider this testimony.
There is no statute requiring the production of witnesses at a hearing on a government employee's removal. The basic civil service statute, 5 U.S.C. 652 (a) provides: "No examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer or employee directing the removal or suspension without pay."
The Veterans' Preference Act, 5 U.S.C. § 863, makes no reference to any right of hearing or to the cross-examination of witnesses or to the production of witnesses. However, this Act does authorize the Civil Service Commission to promulgate regulations effectuating the right of appeal. By such regulations, veterans' preference eligibles are granted a right to present, examine and cross-examine witnesses if certain conditions are met.
The two pertinent regulations are 5 C.F.R. § 22.603 — "Opportunity will be afforded for the introduction of evidence (including testimony and statement by the employee and his designated representative and witnesses, and the representatives of the agency and its witnesses) and for the cross-examination of witnesses." And, 5 C.F.R., § 22.607 (as hereinbefore stated)
The Supreme Court in Williams v. Zuckert, 371 U.S. 531, 83 S.Ct. 403, 9 L.Ed.2d 486, held that a discharged employee must make his request for the production of witnesses in conformity with the regulations hereinbefore quoted. The Court said at page 532, 83 S.Ct. at page 404: "The request for production of the witnesses, made only at the hearing by petitioner's counsel, was neither timely nor in conformity with the...
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...Department, 472 F.2d 96, 99 & nn.3-4 (7th Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2775, 37 L.Ed.2d 399 (1973); cf. Brown v. Zuckert, 349 F.2d 461, 463 (7th Cir. 1965), cert. denied, 382 U.S. 998, 86 S.Ct. 588, 15 L.Ed.2d 486 (1966). As a result, a review of the evidence under the APA is......
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...the so-called arbitrary or capricious test. See e. g., Pauley v. United States, 419 F.2d 1061, 1065 (7th Cir. 1969); Brown v. Zuckert, 349 F.2d 461, 463 (7th Cir. 1965), cert. denied, 382 U.S. 998, 86 S.Ct. 588, 15 L.Ed.2d 486 (1966); McTiernan v. Gronouski, 337 F.2d 31, 34 (2d Cir. 1964); ......
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