Peters v. United States

• Decision Date: 13 June 1969
• Docket Number: No. 426-66.,426-66.
• Citation: 408 F.2d 719,187 Ct. Cl. 63
• Parties: James Alvin PETERS v. The UNITED STATES.
• Court: U.S. Claims Court

187 Ct. Cl. 63, 408 F.2d 719 (1969)

James Alvin PETERS v. The UNITED STATES.

No. 426-66.

United States Court of Claims.

March 14, 1969.

As Amended June 13, 1969.

Harry W. Hultgren, Jr., Hartford, Conn., attorney of record, for plaintiff.

Judith A. Yannello, with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant. LeRoy Southmayd, Jr. and J. Michael Gottesman, Washington, D. C., of counsel.

Before COWEN, Chief Judge, and DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

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

DURFEE, Judge.

This suit is for the recovery of back pay and for reinstatement to the position of placement assistant with the United States Air Force.¹ Both sides moved for summary judgment.

Plaintiff was dismissed from his position for having allegedly solicited and received money and articles of value for the performance of his official duties. The offenses occurred while he was employed by the 902nd Troop Carrier Group at the 905th Troop Carrier Group (Reserve) at Bradley Field, Connecticut, as a military personnel clerk (with the responsibility for interviewing applicants for authorized reserve positions, determining their eligibility, supplying information, and referring them to placement specialists), and while he was later serving as a placement assistant (with the responsibility for recruiting non-prior service personnel to fill authorized positions in military, technical and administrative occupations).

On October 6, 1964, the Group Commander issued a thirty-day notice proposing to remove plaintiff from his position as placement assistant, and charged him with corruptly soliciting, receiving and accepting bribes in return for using his influence to place four men in the Air Force Reserve Program. The notice informed plaintiff that he could answer the charges personally and in writing, and that he could submit affidavits in support of his answer. On October 12th, plaintiff replied, denied the charges made and submitted a sworn statement setting forth events which he felt motivated the charges against him. The Air Force, on October 23, acknowledged receipt of the reply, and on October 26 it amended the notice of proposed removal, adding that the removal was to promote the efficiency of the service. Plaintiff responded to this notice as well, and on November 9, 1964, the Air Force informed plaintiff that the charges against him had been sustained, and notified him of its final decision to effect his dismissal. It also informed him of his right to appeal to the Department of the Air Force and the Civil Service Commission. Plaintiff's removal was effected on November 20, 1964.

On November 27, 1964 plaintiff filed an appeal with the Boston Regional Office of the Civil Service Commission, and requested a hearing. The Commission requested, and received from the Air Force, lettters and forms pertaining to plaintiff's case. These were made available to plaintiff and his representative. Plaintiff did not submit written evidence, and reserved the right to present evidence at the hearing.

Counsel for plaintiff requested in a January 12, 1965 letter, that the Air Force produce the four men alleged to have bribed him, as witnesses on behalf of plaintiff. The Air Force replied that since these men were not employees of the Government and were not under the jurisdiction of the Air Force, except when in training, there was no administrative authority to require their presence at a hearing.

At the Civil Service Commission hearing, the Government offered the testimony of Colonel Martino, who had spoken to three of the four reservists involved, and the testimony of Kenneth Fleming, the Civilian Personnel Officer of the 902nd Troop Carrier Group located in Manchester, New Hampshire, who had spoken to all four of the men. In addition, the Government presented sworn statements of the four men who allegedly offered bribes, and documentary evidence indicating that plaintiff was on duty on the dates mentioned in the specification of charges.

On March 29, 1965, the Commission hearing examiner sustained the agency action. Plaintiff then appealed to the Civil Service Commission's Board of Appeals and Review on April 5, 1965, and on September 22, 1965, the Board sustained the decision of the Boston Regional Office.

Plaintiff is suing the Government under 28 U.S.C. § 1491 (1964) for back pay and reinstatement, and for judicial review of the order of the Commission of September 22, 1965, contending that his procedural rights were violated and that the decision of the Commission was abitrary, capricious and contrary to law since it was not based on substantial evidence.

This court has jurisdiction under 28 U.S.C. § 1491 to review the action of the Civil Service Commission. We need not now decide whether and to what extent Section 10 of the Administrative Procedures Act, 5 U.S.C. §§ 702-706, applies to these personnel actions in this court.

The legal wrongs complained of by plaintiff are the alleged failure of the Civil Service Commission to comply with applicable procedural requirements in a number of respects, and the quality and quantum of evidence relied upon. We will deal with each irregularity separately.

In the first place, plaintiff argues that the Commission's hearing examiner had no legal evidence before him, but rather made his determination only on hearsay. In determining whether the decision of the Commission was supported by substantial evidence, we find that the only evidence consisted of four typewritten statements, each entitled "Deposition," with testimony at the hearing as to how they were taken. Each "Deposition" purports to be a signed statement, by a third party associated with, but not a member of, the 905th Troop Carrier Group to its Commander. Fleming testified at the appeal hearing that each of these four informants personally appeared before him; that because the stenographer present was having extreme difficulty in taking shorthand, he supplemented her work with hand-notes of his own. He then dictated each statement to the stenographer in the presence of each declarant, and it was signed and sworn to before this officer, who was authorized to administer an oath. 5 U.S. C. § 93 (1964). He also testified that the declarants were advised that "under the Code of Universal Military Justice," they did not have to testify against themselves, and that they might be criminally charged with having accepted bribes from plaintiff under the Federal Penal Code. Each "Deposition" states that declarant offered, and Sergeant Peters (plaintiff) accepted bribes in order to get the affiant into a Reserve component of the Air Force in order to discharge the affiant's draft obligation.

Plaintiff objected to these four statements as not being in "affidavit form," as required by Civil Service Regulations,² because of absence of notarization or jurat, although they did recite that the signer had been duly sworn. The Civil Service Commission denied a similar objection on the appeal; it checked signatures to those statements with others in prior records and found them genuine. It found that the absence of the formal requirements of a jurat in the sworn affidavits did not invalidate the statements or render them inadmissible, since they were actually sworn to before an officer authorized to administer an oath.

The rules of the Civil Service Commission provide:

* * * Rules of evidence are not applied strictly, but the representative of the Commission shall exclude irrelevant or unduly repetitious testimony. 5 C.F.R. § 772.305(c) (3).

The sworn testimony of the two Air Force Investigators Martino and Fleming as to what the four alleged bribers of plaintiff said to them under oath, and the four sworn statements in writing of the alleged bribers are certainly not irrelevant or unduly repetitious, and complied with the regulation.

We conclude that the Commission did not err in admitting these four statements as "affidavits" under the regulation. Each one was in fact sworn to and signed by the affiant in the presence of the authorized officer who took the statements, and who testified at the Commission hearing.

Plaintiff also objected to the four statements as hearsay evidence admitted at the Civil Service Commission hearing over objection. We next conclude that the Commission did not err in admitting the four affidavits, and the testimony of the two officers relevant thereto over plaintiff's objection under the hearsay evidence rule. In Morelli v. United States, 177 Ct.Cl. 848 (1966), there was an administrative finding that leaving an identification paddle in a parachute would result in malfunction of the parachute. This finding was based in part upon a written opinion by two Air Force Officers who did not appear before the Grievance Committee. Objected to as hearsay, the court said at 853-854:

* * * the hearsay rule is not applicable to administrative hearings so long as the evidence upon which a decision is ultimately based is substantial and has probative value. * * *

The court cited Montana Power Company v. Federal Power Commission, 87 U.S.App.D.C. 316, 185 F.2d 491, 497 (1950), cert. denied, 340 U.S. 947, 71 S.Ct. 532, 95 L.Ed. 683 (1951), where the Court of Appeals, in commenting on a similar evidentiary regulation of the Federal Power Commission, said at p. 498:

* * * It has long been recognized that, though hearsay evidence lacks certain guarantees of trustworthiness such as amenability to cross-examination, it may yet be relevant and have probative value. * * *

citing Willapoint Oysters, Inc. v. Ewing, 174 F.2d 676, 690 (9th Cir.), cert. denied, 338 U.S. 860, 70 S.Ct. 101, 94 L.Ed. 527 (1949).

In Consolidated Edison Co. et al. v. National Labor Relations Board, et al., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938), the Court in sustaining findings by the Board, based in part on hearsay, said that "the obvious purpose of the...