Fitzgerald v. Hampton, Civ. A. No. 1109-71.

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: John Bodner, Jr., Washington, D. C., for plaintiffs
• Citation: 329 F. Supp. 997
• Decision Date: 25 June 1971
• Docket Number: Civ. A. No. 1109-71.
• Parties: A. Ernest FITZGERALD et al., Plaintiffs, v. Robert E. HAMPTON, Chairman U. S. Civil Service Commission et al., Defendants.

329 F. Supp. 997

A. Ernest FITZGERALD et al., Plaintiffs,
v.
Robert E. HAMPTON, Chairman U. S. Civil Service Commission et al., Defendants.

Civ. A. No. 1109-71.

United States District Court, District of Columbia.

June 25, 1971.

John Bodner, Jr., Washington, D. C., for plaintiffs.

Thomas A. Flannery, U. S. Atty., Joseph M. Hannon, J. Michael McGarry, III, Asst. U. S. Attys., Washington, D. C., for defendants.

OPINION AND ORDER

BRYANT, District Judge.

Plaintiff Fitzgerald was separated from his federal employment as Deputy for Management Systems, Office of the Secretary of the Air Force, on January 5, 1970. The termination was purported to be based on the abolition of the position through a reduction in force proceeding. Plaintiff appealed to the Civil Service Commission alleging that his separation from the federal service was contrary to federal law and Civil Service Commission regulations in that it was in fact a retaliatory measure for certain testimony given before congressional committees. He also requested a hearing. The request for hearing was granted, and long prior to its scheduled commencement plaintiff made numerous requests that the proceedings be open to the public and the press. The Commission refused to open the hearing relying on a published regulation that hearings are not open to the public or the press. 5 C.F.R. § 772.305. At the time of the hearing, this request was renewed and again refused. The hearing commenced —closed to the public and the press.

The case came on to be heard by the court on June 14, 1971, on plaintiffs' motion for a preliminary injunction. On June 17, the court denied the motion, finding that plaintiff had not made the showing required for that extraordinary form of relief. On the same day plaintiffs moved for summary judgment and for expedited consideration, in view of the fact that the closed hearing the complaint seeks to enjoin was continuing on a daily basis and would be completed long before the court would resolve this case in the ordinary course of events. On June 22, the court issued a temporary restraining order against continuation of the closed hearing, pending the court's expedited consideration of the motion for summary judgment and the government's opposition thereto.

Plaintiff Fitzgerald claims that this closed hearing is unconstitutional and, if allowed to proceed, would result in a fundamental right forever lost to him. The important advantages of a public hearing in judicial and quasi-judicial proceedings have been thoroughly recognized —to the extent of being taken for

329 F. Supp. 998

granted as an ingredient of due process. In federal criminal prosecutions public hearing is guaranteed by the Sixth Amendment to our Constitution. As for civil proceedings, Federal Rule of Civil procedure 77(b) requires that "All trials upon the merits shall be conducted in open court and insofar as convenient in a regular courtroom."

In Federal Communications Commission v. Schreiber, 381 U.S. 279, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965), the Court, per Mr. Chief Justice Warren, upheld the right of an agency to insist upon open hearings, even in an investigatory, rather than an adjudicatory, proceeding. In referring to the FCC regulation at issue the Court said, "The procedural rule, establishing a presumption in favor of public proceedings, accords with the general policy favoring disclosure of administrative agency proceedings." 381 U.S. at 293, 85 S.Ct. at 1469.

In Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 999, 82 L.Ed. 1129 (1937), Mr. Chief Justice Hughes, speaking for...