Connelly v. Nitze

• Decision Date: 15 August 1968
• Docket Number: No. 21085.,21085.
• Citation: 130 US App. DC 351,401 F.2d 416
• Parties: George CONNELLY, Appellant, v. Paul H. NITZE, Secretary of the Navy, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

130 US App. DC 351, 401 F.2d 416 (1968)

George CONNELLY, Appellant, v. Paul H. NITZE, Secretary of the Navy, et al., Appellees.

No. 21085.

United States Court of Appeals District of Columbia Circuit.

Argued March 5, 1968.

Decided August 15, 1968.

Mr. Edward L. Merrigan, Washington, D. C., for appellant.

Mr. Gil Zimmerman, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellees.

Before BAZELON, Chief Judge, and McGOWAN and TAMM, Circuit Judges.

McGOWAN, Circuit Judge:

Appellant brought suit in the District Court against the Secretary of the Navy and the Civil Service Commission, seeking a declaration of the illegality of his dismissal from federal employment and an injunction restoring him to his job. On cross-motions for summary judgment, the District Court, without any identification of its reasons, held for appellees. Our examination of the administrative record filed in the District Court fails to convince us that the Navy, in proceeding without a hearing, acted within either the spirit or the letter of its own regulations. Because its error in this regard may have been induced in some considerable degree by the ambiguities of appellant's position vis-a-vis a hearing, we have concluded to vacate the judgment of the District Court dismissing the complaint, and, with all further proceedings thereunder stayed for the time being, to remit the parties to the holding by the Navy of an evidentiary hearing on its charges.¹

I

In 1961, appellant was a civil service employee with 17 years of unexceptionable service as a fire fighter at the Patuxent River Naval Air Station. He was also a life-long resident of the local community of Leonardtown, Maryland. On May 19 of that year he received a notice of proposed removal for immoral conduct, in which he was "charged with the commission of homosexual acts with (three enlisted men — Etheridge, Morrill, and Coyle) during the period of 1 January to 1 May 1961." Appellant requested a formal hearing, and one was convened before a three-man group which characterized itself as "a fact finding board, not a court," with the mission of making a report to the Commanding Officer of the Air Station.

At the outset of the hearing the chairman of the board, a naval officer, referred to the charges and said that appellant could proceed with evidence in his defense. When appellant's counsel suggested that he had no evidence to present if the Navy had none, the chairman stated that "We don't intend to call any witnesses at this particular time." When counsel then asked "Are you going to present the prosecution first?" the chairman replied "This is not a court. We are just arriving at facts. We have some facts in our hands right now and we want other facts. * * *" Appellant's counsel then said he would, for the convenience of his character witnesses who were present, be willing to go ahead with their testimony alone, and this was done.²

Following this evidence, the chairman read from written statements by Etheridge, Morrill, and Coyle. The chairman asked appellant why he thought these men would make such statements, and appellant said he thought it was because they wanted to get out of the Navy.³ The three men were then successively called by the chairman as witnesses. When appellant's counsel undertook to examine them about their statements (although the chairman had declined to make the statements physically available to counsel for this purpose) each refused to answer any questions. A typical exchange is the following with Coyle:

Q. How long have you known Mr. Connelly?

A. I refuse to say anything about that. I have taken Article 31.

Q. Have you engaged in any unnatural sexual acts with Mr. Connelly?

A. I say I refuse to testify.

Q. You made a statement that at one time you were trying to get out of the Navy?

A. That's true.

Q. How would you go about that?

A. There was some hardship difficulties at my home and I put in a request that was denied.

Q. You are not particularly anxious about staying in the Navy, are you?

A. It doesn't matter one way or another.

The chairman formally read into the record the complete written statements of Etheridge, Morrill, and Coyle, and then asked appellant if he denied their truth. He replied that "These are all untrue as far as I'm concerned." The hearing ended with counsel protesting that appellant could not possibly be found guilty on written charges which the makers refused to affirm in open hearing.

The Commanding Officer did, however, find appellant guilty of the acts charged, and separated him from his job. However, the Secretary of the Navy, on December 1, 1961, sustained appellant's appeal and directed his restoration to duty because "the procedure followed in effecting your removal from employment was fatally defective." He added that, if appellant accepted restoration, "new and procedurally correct action to remove you may be instituted upon your return to duty."

Appellant did not learn until after the entry of judgment by the District Court in this case that, coincidentally with rendering this decision, the Secretary of the Navy had transmitted to the Commanding Officer at Patuxent a memorandum, dated September 14, 1961, by the Chief of the Bureau of Naval Weapons.⁴ Although this memorandum recommended that appellant's appeal be denied, it pointed out what it considered to be a number of procedural deficiencies under the governing regulations contained in the Navy Civilian Personnel Instructions hereinafter cited as NCPI. Of central interest for present purposes are the following:

(a) Management failed to introduce evidence in support of its case.

(b) The three enlisted men should have been asked to verify their signatures on their written statements and to reaffirm their correctness. Appellant and his counsel should also have been given an opportunity to examine these statements at the outset of the hearing.

(c) No background information with respect to the taking of the written statements was presented. The special investigators who obtained them should have testified.

Following appellant's return to duty on December 21, 1961, a new action was initiated on January 25, 1962.⁵ The notice this time charged only homosexual acts with Etheridge and Coyle, each of whom was referred to as a "former enlisted man" because, as a Government pleading in the District Court states, "Before the Navy began its second removal proceedings in plaintiff's (appellant's) case, Etheridge and Coyle had been, themselves, separated from the Navy" midway through a four-year enlistment in each case. The reason for omitting Morrill, as given by the Government in the same pleading, was that he had, after the hearing described above, repudiated his written statement as false. Attached to the notice were the same written statements by Etheridge and Coyle which had been read into the record of the earlier hearing. But also attached was a new written statement by Coyle, given by him on July 12, 1961, and relating the commission of a fifth homosexual act with appellant on the night of June 14, 1961.

Appellant's first response to this notice was, by a letter dated January 30, 1962, to the Industrial Relations Officer, to request a formal hearing. This letter closed with the statement that "you will be advised at a later date of a person or persons who will represent me at this hearing." Two days later, however, appellant wrote another letter with reference to the notice, this time to the Commanding Officer. Because of its importance, its full text is set forth in the margin.⁶ One week later the Commanding Officer wrote appellant that he found that appellant had committed the acts charged and that he was, accordingly, removing appellant from his job for immoral conduct.

The record before us shows only that the Secretary of the Navy, on October 2, 1962, denied without comment what he described as appellant's appeal of 21 August 1962. The record discloses more fully appellant's efforts to get relief from the Civil Service Commission. Whether appellant has become disenchanted with lawyers generally or at least had had some premonitions about the calibre of the legal advice recently supplied him with respect to his request for a hearing, he was represented in his appeal to the Commission by the Washington-based Director of Employee Relations of the American Federation of Government Employees — an official whose connection with the legal profession does not emerge clearly either from his title or his correspondence. By letter of February 21, 1962, he appealed on appellant's behalf to the Regional Director of the Commission at Philadelphia. In a response dated March 30, the Regional Director appeared to consider that the only issue raised was the degree of specificity of the notice in the light of relevant Civil Service Commission rules and regulations.⁷

A brief and uninformative letter by the Director of Employee Relations carried the appeal to the Commission's Board of Appeals and Review where it was denied in a letter of August 13 which again treated the only issue before it for resolution as the one of specificity under Commission requirements. On March 8, 1963, the president of the union wrote directly to the Commission, asking that the decision of the Board of Appeals and Review be reopened and reconsidered. By letter of May 24, 1963, the executive assistant to the Commissioners responded that they had declined to act as requested. The suit in the District Court was filed August 31, 1964.

II

The Government has tirelessly, in brief and argument, reminded us that appellant's first discharge in 1961 is not before us for review. We are cautioned, rather, to remember that that is a closed book, with eventual justice done by the Navy itself, at least in its more rarefied reaches, and with appellant correspondingly made whole and restored to duty. What, so we are told, ...