Hanifan v. United States, No. 92-63.

CourtCourt of Federal Claims
Writing for the CourtCOWEN, , and LARAMORE, DURFEE, DAVIS and COLLINS
Citation354 F.2d 358,173 Ct. Cl. 1053
Decision Date17 December 1965
Docket NumberNo. 92-63.
PartiesRaymond J. HANIFAN v. The UNITED STATES.

173 Ct. Cl. 1053, 354 F.2d 358 (1965)

Raymond J. HANIFAN
v.
The UNITED STATES.

No. 92-63.

United States Court of Claims.

December 17, 1965.


354 F.2d 359

John I. Heise, Jr., Washington, D. C., attorney of record, for plaintiff. Leonard J. Meiselman, New York City, of counsel.

Edwin J. Reis, Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.

PER CURIAM.*

Plaintiff, a veterans' preference eligible, was removed on charges in 1959 from his position as a special agent in the Internal Revenue Service. The Civil Service Commission, after a hearing under Section 14 of the Veterans' Preference Act, 58 Stat. 387, 390, as amended, 5 U.S.C. § 863, sustained the removal.

The case is before the court on cross-motions for summary judgment.1 Plaintiff's principal contention in this court is that he was deprived of a procedural right, at the Civil Service Commission hearing, by the refusal of the Internal Revenue Service to produce certain of its employees to testify.

The facts pertinent to this issue are as follows: By letter of November 28, 1958, signed by James A. O'Hara, District Director, plaintiff was charged in four detailed specifications by the Internal Revenue Service with inefficiency, and given notice of proposed removal from the Service. After exchanges of correspondence which included a categorical denial by plaintiff of the charge, the Service found that the charge was supported by substantial evidence, was sustained, and warranted his removal which was effected on January 9, 1959.

Plaintiff filed a timely appeal to the Civil Service Commission on the ground that the charges which were made

354 F.2d 360
against him were without merit and on the ground that the notice of charges was not substantially sufficient and in detail so as to comply with the intent and purpose of the Veterans' Preference Act. In an affidavit, dated January 14, 1959, plaintiff requested the Commission to obtain from the Internal Revenue Service, in connection with the appeal, numerous and voluminous records which he specified. He also alleged that the charges against him were motivated by political prejudice and requested that a hearing be granted, to take place in New York City, "at which time appellant plaintiff and counsel will be present, together with such witnesses as appellant will request in his final affidavit." Thereafter, the District Director of the Internal Revenue Service, Albany, New York District (in which plaintiff had been employed), transmitted to the Commission the requested material, but with certain deletions and omissions, and an extensive affidavit, dated October 6, 1960, commenting on various details of the removal action

By affidavit dated November 15, 1960, plaintiff protested to the Commission that certain of the requested material had not been received, requested that additional material be obtained from the Service, and requested that the Service produce at the hearing as witnesses the Albany District Director, James O'Hara, who had signed the notice of proposed removal of plaintiff, and the Chief of the Intelligence Division, John Mullen, plaintiff's former supervisor, against whom plaintiff had at one time instituted a grievance proceeding.

In response to plaintiff's affidavit dated November 15, 1960, Mr. O'Hara submitted additional information by letter dated December 29, 1960. It can properly be assumed that Mr. O'Hara was cognizant of the request in plaintiff's affidavit of November 15, 1960, that he (Mr. O'Hara) and Mr. Mullen be produced by the Service at the hearing as witnesses.

On January 12, 1961, the Commission set the date of February 14, 1961, for the hearing and advised plaintiff in pertinent part as follows:

* * * * * *
You may be represented in person or by a representative of your own choosing at the hearing. In addition, you have the right to present witnesses and to make any statements which you desire to have placed in the record, which you have not already made. The agency from whose adverse decision you are appealing is being invited to participate. Both the witnesses whom you present and those who may be presented by the agency may be cross-examined by the opposite side. As the Commission does not have the power of subpoena, you will be required to make your own arrangements for the appearance of your witnesses. * * *

Shortly after the hearing convened on February 14, 1961, plaintiff's counsel inquired if the witnesses requested by the appellant (plaintiff) would be supplied by the Service. Whereupon, the Service representative advised that the Service did not intend to present either Mr. O'Hara or Mr. Mullen. During the course of the hearing, plaintiff's counsel protested the failure of the Service to produce Mr. O'Hara and Mr. Mullen as witnesses "to test their credibility and accuracy." Included in plaintiff's testimony were statements concerning hostility between plaintiff and Mr. Mullen, his former supervisor. After plaintiff and witnesses produced by the Service testified, the hearing was continued until August 16, 1961.

Following the hearing of February 14, 1961, Mr. O'Hara and Mr. Mullen both reviewed the transcript of the hearing and submitted to the Commission detailed rebuttal statements in affidavit form. There is no question but that both Mr. O'Hara and Mr. Mullen were cognizant of plaintiff's desire, as expressed in the transcript, that they appear as witnesses.

On June 27, 1961, plaintiff submitted to the Commission an affidavit protesting the affidavits "from persons whose

354 F.2d 361
presence had been requested by your deponent but whom the Agency Internal Revenue Service refused to present." Plaintiff's affidavit continued: "In effect, these persons, and in particular, John T. Mullen, are hiding behind written affidavits while refusing to appear and be cross-examined as to veracity, accuracy and credibility." Plaintiff then requested production of "other papers not as yet submitted, although previously requested," and that "the Commission obtain the personal appearance of John T. Mullen, James A. O'Hara and Francis D. Sullivan."

In a letter of July 11, 1961, the Commission advised plaintiff that the hearings would reconvene on August 8, 1961, and repeated the statements made to plaintiff prior to the first hearing regarding the appearance of witnesses. Upon resumption of the hearings, plaintiff's counsel inquired if the Service intended to produce "the witnesses whose affidavits were submitted" and was informed by the Service representative that the Service did not.

On September 19, 1961, the Commission's regional office issued its opinion and decision sustaining the removal action. In the course of the opinion, reliance was placed upon the affidavits of Mr. O'Hara and Mr. Mullen as a basis for the decision.2

On October 30, 1961, plaintiff appealed to the Commission's Board of Appeals and Review and requested on several grounds that the Board reverse the decision of the regional office and reinstate him. In the appeal, plaintiff stated:

* * * * * *
On several occasions the Agency was requested to produce Director O\'Hara and Mr. Mullen. This request was arrogantly disregarded. Nevertheless, affidavits were submitted by them, which affidavits could not be cross-examined and which were erroneous, false and self-serving in nature. Afraid to appear in person, they fearlessly submitted documents which they must know, of necessity, to be wrong. The appellant on the other hand testified fully under oath and completely controverted the allegations of Mr.
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23 practice notes
  • Gulf States Mfrs., Inc. v. N.L.R.B., No. 77-2406
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 15, 1978
    ...Ct.Cl. 752 (1969) (Navy Dept.); Watson v. United States, 162 F.Supp. 755, 142 Ct.Cl. 749 (1958) (War Dept.); and Hanifan v. United States, 354 F.2d 358, 173 Ct.Cl. 1053 (1965) (Civil Service The Administrative Procedure Act (APA) requires each agency to publish in the Federal Register rules......
  • Chafin v. Pratt, No. 22343.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 13, 1966
    ...1957, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403; Brown v. Macy, 5 Cir., 1965, 340 F.2d 115; Hanifan v. United States, Ct.Cl., 1965, 354 F.2d 358 Dec. 17, 1965; Begendorf v. United States, 1965, 340 F.2d 363, 169 Ct.Cl. 293; Kleinfelter v. United States, Ct.Cl., 1963, 318 F.2d 929; Shadric......
  • Marsden v. United States Postal Service, No. 4-74-Civ. 426.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • October 17, 1974
    ...(1969), the Courts addressed the need for agencies to detail specifically the charges made against employees. In Hanifan v. United States, 354 F.2d 358, 173 Ct.Cl. 1053 (1965), the Court required the agency to afford the petitioner his procedural guarantees throughout the administrative app......
  • Peters v. United States, No. 426-66.
    • United States
    • Court of Federal Claims
    • June 13, 1969
    ...witnesses. Nor was Peters justified in not personally asking the witnesses to appear, as was plaintiff in Hanifan v. United States, 354 F.2d 358, 173 Ct.Cl. 1053 (1965). In Hanifan, supra, the two men sought to be cross-examined were employed by the Internal Revenue Service, which removed p......
  • Request a trial to view additional results
23 cases
  • Gulf States Mfrs., Inc. v. N.L.R.B., No. 77-2406
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 15, 1978
    ...Ct.Cl. 752 (1969) (Navy Dept.); Watson v. United States, 162 F.Supp. 755, 142 Ct.Cl. 749 (1958) (War Dept.); and Hanifan v. United States, 354 F.2d 358, 173 Ct.Cl. 1053 (1965) (Civil Service The Administrative Procedure Act (APA) requires each agency to publish in the Federal Register rules......
  • Chafin v. Pratt, No. 22343.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 13, 1966
    ...1957, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403; Brown v. Macy, 5 Cir., 1965, 340 F.2d 115; Hanifan v. United States, Ct.Cl., 1965, 354 F.2d 358 Dec. 17, 1965; Begendorf v. United States, 1965, 340 F.2d 363, 169 Ct.Cl. 293; Kleinfelter v. United States, Ct.Cl., 1963, 318 F.2d 929; Shadric......
  • Marsden v. United States Postal Service, No. 4-74-Civ. 426.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • October 17, 1974
    ...(1969), the Courts addressed the need for agencies to detail specifically the charges made against employees. In Hanifan v. United States, 354 F.2d 358, 173 Ct.Cl. 1053 (1965), the Court required the agency to afford the petitioner his procedural guarantees throughout the administrative app......
  • Peters v. United States, No. 426-66.
    • United States
    • Court of Federal Claims
    • June 13, 1969
    ...witnesses. Nor was Peters justified in not personally asking the witnesses to appear, as was plaintiff in Hanifan v. United States, 354 F.2d 358, 173 Ct.Cl. 1053 (1965). In Hanifan, supra, the two men sought to be cross-examined were employed by the Internal Revenue Service, which removed p......
  • Request a trial to view additional results

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