Hanifan v. United States, 92-63.

• Decision Date: 17 December 1965
• Docket Number: No. 92-63.,92-63.
• Parties: Raymond J. HANIFAN v. The UNITED STATES.
• Court: U.S. Claims Court

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.

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 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:

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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 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:

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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. O\'Hara and Mr. Mullen. The appellant was available for cross-examination. He was not cross-examined.

* * * * * *

By letter of March 2, 1962, the Board of Appeals and Review advised plaintiff's counsel that it had affirmed the decision of the regional office. In the course of the letter, the following appears:

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You also stated that you requested the agency to produce Director O\'Hara and Mr. Mullen, and that this request was arrogantly disregarded. You admit, however, that affidavits were submitted by these individuals. This was entirely a matter for the agency concerned as to whether it desired to produce certain witnesses since the Commission does not have the power of subpoena.

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There are two Commission regulations which bear on the issue of the refusal of the Service to produce the witnesses to testify. A Commission regulation (5 C.F.R. § 22.603) provides:

Opportunity will be afforded for the introduction of evidence (including testimony and statements by the employee and his designated representative and witnesses and by representatives of the agency and its witnesses) and for the cross-examination of witnesses.

Another regulation (5 C.F.R. § 22.607) provides:

The Commission is not authorized to subpoena witnesses. The employee and his designated representative, and the employing agency, must make their own arrangements for the appearance of witnesses.

In Williams v. Zuckert, 371 U.S. 531, 83 S.Ct. 403, 9 L.Ed.2d 486 and 372 U.S. 765, 83 S.Ct. 1102, 10 L.Ed.2d 136 (1963), the Supreme Court considered the foregoing regulations in connection with a somewhat similar case in which the petitioner who had been dismissed from the Air Force alleged that he had been denied the right of cross-examination of witnesses whom the Air Force failed to produce at the Commission hearing. The Court remanded the case to the District Court with instructions to hold a hearing and determine "whether the petitioner, desiring the presence of witnesses at his hearing, either discharged his initial burden under the applicable regulations by making timely and sufficient attempt to obtain their presence or, under the circumstances and without fault of his own, was justified in failing to make such attempt, and, if so, whether proper and timely demand was made upon the Air Force so that it was required to produce such witnesses for...