Holman v. United States

• Decision Date: 13 October 1967
• Docket Number: No. 23-65.,23-65.
• Parties: Joseph J. HOLMAN, Jr. v. The UNITED STATES.
• Court: U.S. Claims Court

181 Ct. Cl. 1, 383 F.2d 411 (1967)

Joseph J. HOLMAN, Jr. v. The UNITED STATES.

No. 23-65.

United States Court of Claims.

October 13, 1967.

Joseph J. Holman, Jr., Los Angeles, Cal., pro se.

Edgar H. Twine, Washington, D. C., with whom was Acting Asst. Atty. Gen., Carl Eardley, for defendant.

Before COWAN, Chief Judge, JONES, Senior Judge, and LARAMORE, DURFEE, DAVIS, SKELTON and NICHOLS, Judges.

ON PLAINTIFF'S MOTION AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

NICHOLS, Judge.

On August 22, 1963, plaintiff, a GS-3 nursing assistant for the Veterans Administration, Los Angeles, was removed from his position on a charge of immoral conduct. He is now before this court seeking back-pay from his date of removal, plus night differential and holiday time. He alleges the affirmance by the United States Civil Service Commission Board of Appeals and Review of the order of removal was "arbitrary, capricious, malicious, and, implied bad faith * * *."

This case is before the court on cross-motions for summary judgment.

Defendant has offered in support of its motion what appears to be the entire administrative record. Plaintiff has not had counsel appearing for him at any phase of this case, and while not ignorant or inarticulate, he has not aided us as much as an attorney probably would have done. At the same time, he has made a record of considerable bulk and volume. We have endeavored to deal with the plaintiff's contentions, to satisfy ourselves that no fundamental unfairness occurred, and to ascertain whether the action was based on substantial evidence.

A prior removal action had aborted for failure to detail the offense correctly. On June 27, 1963, plaintiff was sent a second notice of proposed removal. This time the charge read:

Immoral Conduct. At about 4:00 a. m. on Saturday, January 26, 1963, in the public rest room of the Art Theater at 551 South Main Street, Los Angeles, California, you were observed by two members of the Los Angeles Police Department, officers William Welsch and Richard Haldi, while you engaged in fellatio with an unidentified male.

Conduct such as that with which you are being charged is in violation of Veterans Administration stated policy which spells out the need for high moral and ethical standards of behavior that reflect credit on the Federal Government.

Plaintiff made a timely reply, and demanded a hearing under V. A. hearing procedure.¹ The hearing committee consisted of three fellow employees, one of whom was plaintiff's nominee. At the close of the hearing the committee chairman asked the plaintiff if he, as the employee in the case, had had every opportunity to state his case. In response to this Holman answered:

In this hearing, I\'ve had more than enough opportunity, so much that I\'ve talked too much. For this hearing only, I\'m talking about, here this morning is what you\'re talking about.

After making four fact findings on the charge made against the plaintiff, the hearing committee stated that "Based on its consideration of the evidence of record in Mr. Holman's case, * * * the evidence was more than sufficient to sustain the charge of immoral conduct."

At his hearing the plaintiff was confronted by Officer Welsch and had full opportunity to cross-examine him, and, also, to say what he wished on his own behalf, but the hearing committee concluded that "the testimony of the arresting officer, William H. Welsch, * * * is believed to be a true and accurate account concerning the circumstances which led up to Holman's arrest and he (Holman) committed the offense as charged."

Plaintiff complains he was not shown the official police reports made in this case until the hearing. However, 10 days before this hearing he was offered an unofficial report of his arrest that had been furnished to the Director by the agency's Protective Section. This report contained information gleaned from the official police reports and was as detailed as those reports themselves. Mr. Holman refused the offer to see the report. The Director himself had obtained copies of the official police reports approximately but two days before plaintiff's hearing and he had made them a part of the hearing record.

On August 16, 1963, plaintiff received his second removal letter from the Director, Veterans Administration Center. It stated that his removal was to be effective August 22, 1963, and it was based on the following reason: "The charge stated in the notice of proposed removal is sustained." Plaintiff was again informed that his reply had been carefully considered, along with the report of the Employee Hearing Committee and the evidence developed.

Again plaintiff appealed the removal decision to the Veterans Administrator. This time however, on December 11, 1963, the decision was affirmed. The Administrator specifically noted that plaintiff's hearing was conducted fairly and in accordance with Veterans Administration procedures. He also stated:

An officer of the Los Angeles Police Department testified under oath at your Veterans Administration hearing that he observed you engaging in the immoral act with which you are charged. You are also positively identified in the official arrest word illegible signed by this officer which records his observation of your immoral conduct.

In the same letter, Holman was informed of his right to appeal the decision to the San Francisco Regional Office of the United States Civil Service Commission. This he did on December 24, 1963.

Holman received a hearing before the San Francisco Regional Office on January 17, 1964. In a detailed, four page decision, rendered February 10, 1964, the Appeals Examiner concluded:

In review, we find that all procedural requirements were met by the agency in effecting the removal of Mr. Holman.

On substantive grounds, we find that the action was taken for such cause as will promote the efficiency of the service. For these reasons we find that the removal of Mr. Holman should be sustained.

Mr. Holman had now reached the last stage of the administrative review procedure open to him. On February 13, 1964, he appealed the Regional Office decision to the United States Civil Service Commission Board of Appeals and Review. On May 8, 1964, said Board concurred in the affirmance of the removal decision rendered by the Regional Office. This too was a detailed decision. The Chairman of the Board of Appeals and Review specifically reviewed and commented upon each of the representations Holman had made in his appeal (except for those considered repetitious or not pertinent to the issues in the case). All of them were found to be lacking of merit. The Chairman concluded with the statement that procedurally and on the merits "the decision to effect removal was not unreasonable, arbitrary or capricious."

Before we discuss the nature of our scope of review in this case, a further part of this story must be told.

Plaintiff and another, one Maldonado, were criminally tried as co-defendants charged with the same acts which led to Holman's removal from his position with the V. A. A jury found them guilty as charged. However, on March 15, 1966, in People v. Maldonado,² the District Court of Appeals for the Second Appellate District of California, reversed the convictions.

As we read that decision, the grounds for reversal were as follows: first, as to Maldonado, he had made an oral confession in police custody before he was advised of his constitutional rights to remain silent and have legal counsel; second, as to Holman, he did not have a fair trial because the inadmissible Maldonado confession was admitted and corroborated the police story as against him too, and also because of the testimony of the arresting officer to the effect that he had interviewed Holman after his arrest, had stated that Holman himself knew he was guilty, and had asked Holman why he had done it. To this Holman had failed to reply. It was held that the admission of his testimony was in error because the silence of an accused in the face of an accusatory statement cannot be used to justify an inference adverse to him.

None of this objectionable evidence was testified to at plaintiff's V. A. hearing. But the police arrest report, received as an exhibit, did contain it. The committee, nevertheless, hardly could have believed that plaintiff remained silent when accused, in view of the testimony it heard. Plaintiff, questioning the officer at the V. A. Hearing, said:

And from the very first I told you that you were in error on your identification. Is that correct or not?

Welsch. You told me that you didn\'t do

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