Goldwasser v. Brown

• Citation: 417 F.2d 1169
• Decision Date: 17 September 1969
• Docket Number: No. 22253.,22253.
• Parties: David GOLDWASSER, Appellant, v. Harold BROWN, Secretary of the Air Force, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

417 F.2d 1169 (1969)

David GOLDWASSER, Appellant, v. Harold BROWN, Secretary of the Air Force, et al.

No. 22253.

United States Court of Appeals District of Columbia Circuit.

Argued June 11, 1969.

Decided September 17, 1969.

COPYRIGHT MATERIAL OMITTED

Mr. Lawrence Speiser, Washington, D. C., with whom Mr. M. Michael Cramer, Washington, D. C., was on the brief, for appellant.

Mr. Gil Zimmerman, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, and Frank Q. Nebeker, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellees. Messrs. John C. Eldridge, Norman Knopf and Robert V. Zener, Attys., Department of Justice, also entered appearances for appellees.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and McGOWAN, Circuit Judge.

McGOWAN, Circuit Judge:

This federal employee discharge case was heard by the District Court on cross-motions for summary judgment, and this appeal is from a decision adverse to the employee. The evidentiary record before the court was the administrative record compiled in the proceedings before the Civil Service Commission following upon the appeal to that agency of appellant's discharge by the Air Force.¹ A number of procedural errors are asserted as rendering the Commission's action defective. In addition, it is said that to terminate appellant's employment for the reason given is to trench upon rights protected by the Constitution, especially the First Amendment. We find none of these contentions to be compelling, and we affirm the District Court.

I

Appellant was a civilian employee of the Air Force who served as a language instructor in the Air Force Language School at Lackland Air Force Base, Texas. His job was to teach basic English to foreign military officers in this country as guests of the U. S. Government. The charge against him was that, in the face of prior warnings that discussion of controversial subjects (i. e., religion, politics, race) during the class hours was contrary to Air Force policy, he made such forbidden statements on two separate occasions to his classes. One was to the effect that those who burn themselves to death as a protest against the Viet Nam War are the true heroes, and he wished he had the courage to do it himself. The other was that Jews are discriminated against in America, and that he had felt such discrimination throughout his life, including his service at the Language School.

The Chief of the Language School regarded this conduct on the part of appellant, after having been repeatedly warned not to engage in it, as prejudicial to the interests of the United States Government, and this was the stated ground in the notice of discharge given to appellant. The ultimate issue resides in the statutory formulation that "No person in the classified civil service of the United States shall be removed or suspended * * * except for such cause as will promote the efficiency of such service * * *." 5 U.S.C. § 652 (a) (now 5 U.S.C. § 7501, recodified with minor variations in wording).

A hearing on appellant's appeal to the Civil Service Commission was held by an Appeals Examiner of the Dallas Regional Office. The position taken by appellant was that he had not made the two statements attributed to him and that he was, therefore, innocent of the charges against him. He represented, according to the Appeals Examiner, that he could not have made the statements because (1) his personal views on Viet Nam did not differ from those of the U. S. Government, (2) he had not experienced racial discrimination, and (3) the alleged statements were alien to any possible discussion of the lesson plan for the days in question.²

The record before the Appeals Examiner included affidavits from Air Force personnel, a report by a Civil Service Commission investigator, and oral testimony by appellant and other witnesses on his behalf. The Appeals Examiner concluded that the evidence supported the charges against appellant and that he had in fact made the statements in question after having been warned to refrain from such conduct.

The Commission's Board of Appeals and Review sustained this finding as against a challenge that it was contrary to the weight of the evidence, and it went on to find that the Air Force had not been "arbitrary, capricious, or unreasonable, and that appellant's discharge was for such cause as will promote the efficiency of the service." The Commission adopted the decision of its Board of Appeals and Review and denied appellant's request for reopening and reconsideration.

II

We turn first to appellant's claims of procedural inadequacies in the Commission proceedings. The principal one of these is that a fair hearing was denied appellant because the Air Force failed to produce certain witnesses pursuant to appellant's request. These witnesses were said to be under the Air Force's control and direction, and that the failure to produce them at the hearing was a conscious effort to impede appellant's presentation of his defense.

The witnesses in question were the foreign officers in the classes to which appellant allegedly made the offending statements. The record shows that on January 14, 1966, just after the Language School gave appellant preliminary written notice of its proposed dismissal action and of his opportunity to answer the charges upon which such dismissal would be based, appellant's retained counsel responded in a letter denying the charges and purporting to give notice that, if the Air Force persisted in appellant's removal, appellant would require the personal presence of the foreign students at the Commission hearing and that he looked to the Air Force to assure that presence. After the final notice of dismissal was forthcoming a few days later, appellant's counsel wrote again, identifying some additional foreign students and stating the same expectation as to their presence. The concern of these letters, however, was that the students might finish their visits and depart before the hearing, and it appeared to be counsel's purpose that he be notified of such departure in time for him to arrange to take depositions at appellant's expense.

The Air Force, on February 7, 1966, wrote appellant's counsel that the foreign students were in the country on invitational travel orders. As such, they were said to be in effect "guests of the United States Government" and not under its military jurisdiction; accordingly, the Air Force was "in no position to take any action on your request" that the students be produced at the hearing. The letter went on as follows:

The students will be here until May and it is entirely discretionary with them as to whether they would make statements, appear as witnesses or take any part in the matter in question. You are at liberty, however, to communicate with them directly should you so desire. The appropriate method would be to address your communication to the Liaison Officer or Senior Officer of the respective national group. For the Iranian students the Liaison Officer is Captain Mehdi Mirhosseini, 118 Surfrider, San Antonio, Texas; for the Greek students, the Senior Officer is Captain John Triantfillos, Greece - AF, CHR # 2, Lackland AFB Tex; and the Senior Officer for the Japanese students is Major Junkichi Imata, Japan - AF, CMR # 2, Lackland AFB Tex. They will in turn relay your request to the students in question and will, I am sure, advise you of what action you may expect from them.

Instead of approaching the students directly, however, appellant's counsel appeared to conclude that, with the appeal to the Commission filed, he would prefer to have the Commission do so. On March 4, 1966, he wrote the Appeals Examiner requesting that the Commission's investigator interview the students. The investigator was instructed to do so, and the result of his efforts in this regard is described in the portion of his report set forth in the margin.³

At the hearing, appellant objected to the failure of the Air Force to have the students present as witnesses. The Appeals Examiner pointed out that appellant had been notified that the Commission had no subpoena power and that it was appellant's responsibility to arrange for the appearance of witnesses. He directed that the hearing proceed. Appellant himself testified as to conversations he had had with some of the students in which they stated that they did not remember his having made the remarks in question. On cross-examination, appellant said he had not asked any of the students for written statements "since he believed they would appear to testify on his behalf at the time of the hearing, but that he had not personally asked the students to appear at the time of the Commission's hearing since he understood from his Attorney that he did not have access to these individuals." The Air Force representative at the hearing stated that the Air Force had not at any time interviewed the students on this subject, and had no information as to their recollections.

The Appeals Examiner saw no procedural error in all this. He found as a fact that the students were not Air Force employees; that the Air Force had offered appellant full access to them; that appellant had talked to some of the students but he had not asked them to give statements or testify; and that the Air Force had not interviewed the students itself. To the Commission's Board of Appeals and Review, appellant asserted that there had been a deliberate concealment of evidence obtained by the Air Force in interviews with the students. The Board concluded that the record supported the Examiner's findings of fact to the contrary; and that there was, on this record and taking due account of the peculiar status of the foreign officer students, no failure by the Air Force to produce witnesses within its control amounting to a deprivation of due process of law.

We cannot say that the Commission erred in this view...