Johnson v. U.S.

Decision Date08 May 1980
Docket NumberNo. 79-1154,79-1154
Citation628 F.2d 187,202 U.S. App. D.C. 187
PartiesRamon P. JOHNSON, Appellant, v. UNITED STATES of America et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 76-1368).

Robert H. Reiter, Washington, D. C., for appellant.

H. Lowell Brown, Asst. U. S. Atty., Washington, D. C., with whom Carl S. Rauh, U. S. Atty., Washington, D. C., at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on brief, for appellees.

Before TAMM and MacKINNON, Circuit Judges, and LOUIS F. OBERDORFER, * United States District Judge for the District of Columbia.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

In 1974 the United States Civil Service Commission (Commission) 1 affirmed a decision by the Treasury Department's Bureau of Alcohol, Tobacco, and Firearms (Bureau or BATF) to remove appellant Ramon P. Johnson from his position as a special agent. The Commission in part grounded its affirmance on hearsay collected by the BATF investigator, and did not assist Johnson with the production of non-Bureau employees to testify in his behalf at the hearing. Johnson sued for reinstatement, but the district court granted the Government's motion for summary judgment. Johnson appeals.

We conclude that the Commission properly considered hearsay along with the other testimony and evidence presented, that substantial evidence supported Johnson's removal, and that the Commission's lack of subpoena power did not deprive Johnson of his due process rights. We therefore affirm.


On November 1, 1973, BATF Special Agent John P. Rowley notified Special Agent Ramon P. Johnson, a preference eligible employee, 2 of a proposed adverse personnel action based upon certain charges against Johnson. Johnson replied to the allegations, but Rowley decided the evidence supported the adverse action. In early 1974 the Bureau informed Johnson that he would be removed from his position.

Johnson appealed the BATF action to the Commission. After receiving testimony and other evidence, the appeals examiner made several explicit findings of fact. During the afternoon of September 15, 1973, Special Agent Johnson was off duty and driving his personal automobile. He heard a loud noise, as if an object had struck his car. Looking at the point from which the sound seemed to originate, Johnson observed a dark blue 1973 Pinto occupied by four males. The Pinto's occupants gestured at Johnson as their car passed on his right. Johnson suspected that the young men in the Pinto had caused the loud noise and perhaps damaged his car. He pursued the Pinto for several blocks and finally forced it to stop in the right lane.

The appeals examiner also found that despite Johnson's contentions to the contrary, the weight of the evidence showed Johnson next got out of his automobile with his privately owned revolver in hand and approached the Pinto. The Pinto's driver first threw his car into reverse, then headed forward. As the Pinto passed, Johnson fired. The bullet struck the Pinto in the left rear quarter panel. 3 The appeals examiner concluded that Johnson was not in any danger of being struck by the Pinto at the time he fired his weapon.

Having made these findings, the appeals examiner affirmed BATF's removal of Johnson from his position. She agreed with BATF that Johnson's behavior constituted conduct unbecoming a BATF employee, was not in the public interest, reflected discredit to the Bureau's public image and that consequently, Johnson's removal would promote the efficiency of the Bureau. The Appeals Examining Office affirmed the examiner's decision, as did the Commission's Appeals Review Board.

Johnson filed suit in the United States District Court for the District of Columbia, seeking reinstatement in his job position. On October 24, 1978, Judge Barrington D. Parker granted the Government's motion for summary judgment. Johnson appeals.

A. Standard of Review

We must affirm Johnson's removal if we find that there was substantial evidence to support the BATF action and if we determine that the Commission was not arbitrary or capricious in some other respect. Polcover v. Secretary of the Treasury, 477 F.2d 1223, 1226-27 (D.C.Cir.), cert. denied, 414 U.S. 1001, 94 S.Ct. 356, 38 L.Ed.2d 237 (1973). "Substantial evidence" is " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,' " Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)), that is, " 'enough (evidence) to justify, if the trial were to a jury, a refusal to direct a verdict,' " Illinois Central Railroad v. Norfolk & Western Railway, 385 U.S. 57, 66, 87 S.Ct. 255, 260, 17 L.Ed.2d 162 (1966) (quoting NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939)). Accord, Harborlite Corp. v. ICC 613 F.2d 1088, 1093 n.10 (D.C.Cir. 1979). Despite the profligate duplication of Judge Parker's labors, we review the Commission's decision, not the district court's. Though the district court has already inspected the agency record and found that the evidence supports the Commission's conclusion, we must do so again and make an independent judgment. Polcover v. Secretary of the Treasury, 477 F.2d at 1226 & nn.5-6. 4

B. Admissibility and Weight of the Hearsay Evidence

Two witnesses other than Johnson himself testified before the Commission's appeals examiner at Johnson's hearing: Special Agent Rowley, Johnson's supervisor, and Special Agent Robert M. Potter, who investigated the incident. Rowley explained BATF's firearms policy and detailed how he decided to remove Johnson. Potter reported on his inspection of the damaged Pinto and gave his conclusions concerning the bullet's trajectory. The appeals examiner also relied upon statements Potter had collected from the Pinto's occupants and from disinterested witnesses. Agent Potter included these statements in his investigative reports, which he later adopted as part of his hearing testimony. Commission Hearing Transcript (Tr.) at 10. Johnson's counsel conceded during the Commission hearing that the statements had become part of the record. Id. at 113. Nevertheless, Johnson objects to the Commission's use of these statements, which he characterizes as inadmissible hearsay that cannot constitute substantial evidence.

It has long been settled that the factfinder in an administrative adjudication may consider relevant and material hearsay. Montana Power Co. v. FPC, 185 F.2d 491, 498 (D.C.Cir.1950), cert. denied, 340 U.S. 947, 71 S.Ct. 532, 95 L.Ed. 683 (1951). See Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Opp Cotton Mills, Inc. v. Administrator of the Wage and Hour Division of the Department of Labor, 312 U.S. 126, 155, 61 S.Ct. 524, 537, 85 L.Ed. 624 (1941); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229-30, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938). Thus in Brown v. Gamage, 377 F.2d 154 (D.C.Cir.), cert. denied, 389 U.S. 858, 88 S.Ct. 103, 19 L.Ed.2d 125 (1967), we affirmed the involuntary discharge of an Air Force officer based upon statements that the Air Force had taken from five witnesses. See id. at 158. Accord, Marvin Tragash Co. v. United States Department of Agriculture, 524 F.2d 1255, 1258 (5th Cir. 1975); Brown v. Macy, 340 F.2d 115, 117 (5th Cir. 1965). Congress never instructed the Commission to follow the rules of evidence as applied in the courts. Indeed, the Commission's regulations, specifically 5 C.F.R. § 772.305(c)(4) (1974), authorized introduction of statements from witnesses. See Pascal v. United States, 543 F.2d 1284, 1289, 211 Ct.Cl. 543 (1976); Jacobowitz v. United States, 424 F.2d 555, 559-60, 191 Ct.Cl. 444, 448-49 (1970). At the Commission hearing, Johnson's counsel himself moved the admission of a character witness's statement in lieu of the witness's testimony in person. Tr. at 243.

Not only is hearsay admissible, but under the appropriate circumstances, it may constitute substantial evidence. At one time federal courts adhered to the so-called "residuum rule": hearsay alone could not support an agency conclusion; some "residuum" of evidence of a type admissible in a jury trial also had to be present. School Board v. HEW, 525 F.2d 900, 905 (5th Cir. 1976). See 2 K. Davis, Administrative Law Treatise § 14.10 (1958). This rule no longer controls. We have rejected a per se approach that brands evidence as insubstantial solely because it bears the hearsay label. See Klinestiver v. Drug Enforcement Administration, 606 F.2d 1128, 1129 (D.C.Cir.1979). Instead, we evaluate the weight each item of hearsay should receive according to the item's truthfulness, reasonableness and credibility. 4 B. Mezines, J. Stein & J. Gruff, Administrative Law § 26.02, at 26-16 to 17 (1979). See, e. g., Richardson v. Perales, 402 U.S. 389, 402-06, 91 S.Ct. 1420, 1427-29, 28 L.Ed.2d 842 (1971); School Board v. HEW, 525 F.2d at 906; K. Davis, Administrative Law of the Seventies § 14.11 (1976 & Supp.1978).

Several factors suggest that the statements made by Gregory S. Prendable, Mrs. Daren Ryan, and M. Theresa Fisher, Commission Record (Record), vol. II, at 272-74, are highly probative. See Richardson v. Perales, 402 U.S. at 402-06, 91 S.Ct. at 1427-1429 (standard for determining weight to be accorded hearsay); School Board v. HEW, 525 F.2d at 906 (same). First, all three out-of-court declarants were disinterested witnesses to the event. Second, their three accounts are essentially consistent. 5 Third, Johnson's counsel had access to the three statements before the agency's hearing. 6 Though he could not have compelled the eyewitnesses' presence at the hearing...

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