Garcia v. Schwartz, Civ. A. No. 66-C-563.

• Decision Date: 17 April 1968
• Docket Number: Civ. A. No. 66-C-563.
• Citation: 283 F. Supp. 157
• Parties: Savino L. GARCIA, Maximiliano, Cordova and Joe A. Martinez, Plaintiffs, v. I. SCHWARTZ, Acting Personnel Officer, Pueblo Army Depot, Pueblo, Colorado, Ludwig J. Andolsek, Robert E. Hampton, and John W. Macy, Jr., as the United States Civil Service Commissioner, Stanley R. Resor, as Secretary of the Army of the United States of America, and, the United States of America, Defendants.
• Court: U.S. District Court — District of Colorado

283 F. Supp. 157

Savino L. GARCIA, Maximiliano, Cordova and Joe A. Martinez, Plaintiffs, v. I. SCHWARTZ, Acting Personnel Officer, Pueblo Army Depot, Pueblo, Colorado, Ludwig J. Andolsek, Robert E. Hampton, and John W. Macy, Jr., as the United States Civil Service Commissioner, Stanley R. Resor, as Secretary of the Army of the United States of America, and, the United States of America, Defendants.

Civ. A. No. 66-C-563.

United States District Court D. Colorado.

April 17, 1968.

Levi Martinez, Pueblo, Colo., for plaintiffs.

Lawrence M. Henry, U. S. Atty., for the District of Colorado, Richard T. Spriggs, Asst. U. S. Atty., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

WILLIAM E. DOYLE, District Judge.

Plaintiffs seek judicial review of the decision of a Civil Service Commission adjudication sustaining their removals from positions of employment at the Pueblo Army Depot, Pueblo, Colorado. Plaintiffs Garcia and Cordova were employed at the Army facility as Material Segregators and Classifiers (WB-7: $2.37/hr.) and plaintiff Martinez was employed as a Fork Lift Operator (WB-5: $2.51/hr.). All three men were employed under and entitled to the protective provisions of the Veterans Preference Act, 5 U.S.C.A. 7511, 7512 (formerly 5 U.S.C.A. § 863).

Plaintiffs were removed effective April 30, 1964, after having been given 30-day written notices of intention to remove by the Army Depot. They were charged with "soliciting or receiving gifts in exchange for services rendered while in the performance of official duties" in violation of Army Regulation 600-50. The substance of the accusation was that they had requested gifts of lumber and canvas missile cover bags from a civilian contractor doing work at the Depot; these gifts were to secure the cooperation of plaintiffs so that the contractor could perform his work. The charges were supported by affidavits of John K. Demas, the civilian contractor, and George E. Richards and Donald E. Ware, two of his employees. None of these affiants were employees of the Pueblo Army Depot or of any governmental agency.

Plaintiffs appealed their removals by the Army Depot to the Denver Region of the Civil Service Commission and subsequently to the Civil Service Board of Appeals and Review. Both administrative bodies affirmed the dismissals. Plaintiffs now seek a judicial determination that their removals were unreasonable, arbitrary, and capricious, and in violation of due process of law.

Plaintiffs maintain that they have been deprived of due process. The following specific contentions are made:

1. During the dismissal hearings and appeals, neither plaintiffs nor their attorney personally confronted and cross-examined the persons whose affidavits substantiated the charges of culpable conduct. Since plaintiffs informed the Denver Regional Commission of their desire to interrogate these persons, they allege that the absence of these affiants from the Commission hearing deprived them of their right to confront and cross-examine their accusers, in violation of due process.

2. Plaintiffs were not given copies of the affidavits substantiating the charges until the commencement of the Regional Commission hearing. They assert this prevented them from preparing adequately for the hearing and also constituted a denial of due process.

I. Absence of the Accusing Witnesses from the Regional Commission Hearing

The letters of intent to remove sent by the Army Depot (dated March 18, 1964) explicitly informed plaintiffs of the nature of the charges against them, of the existence of the affidavits upon which the charges were based, and of the identity of the affiants. Following the dismissals by the Army Depot, plaintiffs requested a hearing before the Denver Region of the Civil Service Commission to appeal the dismissals. The letters requesting the hearings stated in part:

"A hearing is hereby requested by the employee at which time the Government will be required to produce the witnesses, Perry James, John K. Demas and George E. Richards, in order that they may be cross examined by the employee's attorney."

(Statements of Perry James are not concerned in this appeal. The letters requesting the hearing made no mention of Donald E. Ware, the third affiant.)

In its letter of September 14, 1964, the Commission notified plaintiffs that the hearing was set on September 17, 1964, and informed plaintiffs:

"You are invited to be present at that time to exercise your right of producing evidence and witnesses and to cross-examine witnesses of the employing agency on issues involved in this matter.

"The Commission does not have the power of subpoena and you will be required to make your own arrangements for the appearance of witnesses."

There is no evidence in the record, nor any assertions by plaintiffs, that plaintiffs directly requested the Pueblo Army Depot to produce the witnesses at the hearing, or that plaintiffs contacted the witnesses themselves in an attempt to secure their presence. It is to be assumed that these steps were not taken by plaintiffs.

The Commission's regulation then existing (1964) pertaining to the appearance of witnesses at Commission reviews of agency actions contained no provision for subpoenaing witnesses and made clear that appellants had to make their own arrangements. It provided:

"5 C.F.R. sec. 772.305 Hearings.

(c) Hearing procedures. (1) an appellant is entitled to appear at the hearing on his appeal personally or through or accompanied by his representative. The agency is also entitled to participate in the hearing. Both parties are entitled to produce witnesses but as the Commission is not authorized to subpena witnesses the parties are required to make their own arrangements for the appearance of witnesses."¹

The statutes (5 U.S.C.A. 7501, 7512) and regulations (5 C.F.R. sec. 772.301 et seq.) governing dismissals of Civil Service employees (including Veterans Preference Eligibles) make clear that a complete trial-type hearing with strict adherence to courtroom rules of evidence is not required in dismissal cases. Statements of witnesses are generally presented by affidavit; there is no inflexible requirement of compulsory presence of witnesses either for direct or cross-examination. See Deviny v. Campbell, 90 U.S. App.D.C. 171, 194 F.2d 876 (1952), cert. den. 344 U.S. 826, 73 S.Ct. 27, 97 L.Ed. 643 (1952).

Parties to a dismissal proceeding are permitted to utilize oral testimony at the hearing, in the form of cross-examination as well as direct testimony. But the law is clear that the initial burden of making timely and sufficient attempt to secure the presence of witnesses at a Commission hearing, either for direct or cross-examination, rests upon the party desiring the presence of such witnesses. 5 C.F.R. sec. 772.305(c); Williams v. Zuckert, 371 U.S. 531, 83 S.Ct. 403, 9 L.Ed.2d 486 (1963), rhng. granted, 372 U.S. 765, 83 S.Ct. 1102, 10 L.Ed.2d 136 (1963). The order of the Supreme Court remanding Williams to the District Court² delineates the "initial burden" incumbent upon a party desiring the presence of witnesses. Such a party must either

(1) Make timely and sufficient attempt to obtain the presence of the witnesses, or

(2) If under the circumstances and through no fault of his own the party is justified in failing to make such an attempt, the party must at least make a proper and timely demand on the dismissing agency to produce the witnesses, if they are under that agency's control.

A request for production of witnesses made at the time of the actual hearing is not a timely request. Begendorf v. United States, 169 Ct.Cl. 293, 340 F.2d 362 (1965). And it is not sufficient to make request, prior to the hearing, either to the dismissing agency, or as in the case at bar to the Commission, where there has been no meaningful attempt to secure the presence of the witnesses through private contact with them. McTiernan v. Gronouski, 337 F.2d 31 (2nd Cir. 1964) (mere request to dismissing agency not sufficient); Brown v. Zuckert, 349 F.2d 461 (7th Cir. 1965) (mere request to Regional Commission not sufficient). See also, Brown v. Macy, 340 F.2d 115 (5th Cir. 1965); Jenkins v. Macy, 357 F.2d 62 (8th Cir. 1966) (recent decisions upholding dismissals despite absence of accusing witnesses at hearings, where dismissed parties failed to meet initial burden of securing their presence).

There are unusual circumstances in which a party need not privately contact and request a desired witness to attend a hearing. Private contact attempts are not required where the party had no indication prior to the hearing that a potential witness's statements would be used against him. Powell v. Zuckert, 125 U.S.App.D.C. 55, 366 F.2d 634, 641 (1966). Nor is a private request necessary where such a request would obviously be fruitless. Hanifan v. United States, 354 F.2d 358, 173 Ct.Cl. 1053 (1965). But absent such unusual circumstances, a party's lack of private efforts to secure the presence of desired witnesses is fatal to any later assertion of due process deprivation based on the absence of such witnesses from the hearing. Cohen v. United States, 369 F.2d 976, 177 Ct.Cl. 599 (1966).

Plaintiffs' sole efforts to secure the presence at the hearing of Demas, Richards, and Ware consisted of requests to the Commission that the witnesses be produced. Plaintiffs apparently did not request the Army Depot to produce the witnesses.³ Furthermore, there is no evidence that plaintiffs attempted to secure the presence of the three affiants through private arrangements.

No basis exists for assuming that private requests, if made, would have been declined, notwithstanding that plaintiffs had been clearly informed and were aware that the statements of these men substantiated the charges against them.

In view of this, we must conclude that plaintiffs have failed to meet the initial burden required of them under the applicable law, and their assertions of due process denial...