Pfitzinger v. United States Civil Service Commission

Decision Date13 March 1951
Docket NumberCiv. No. 580-49.
Citation96 F. Supp. 1
PartiesPFITZINGER v. UNITED STATES CIVIL SERVICE COMMISSION.
CourtU.S. District Court — District of New Jersey

Frederick F. Richardson, New Brunswick, N. J., for petitioner.

Grover C. Richman, U.S. Atty., Edward V. Ryan, Asst. U.S. Atty., Newark, N. J., for respondent.

SMITH, District Judge.

This matter is before the Court on a petition for review filed herein pursuant to Section 12(c) of the Hatch Political Activity Act, as amended, 5 U.S.C.A. § 118k(c). The petitioner avers that he is aggrieved by the report heretofore made by the United States Civil Service Commission and the order entered thereon. The entire record, certified and filed herein by the Commission pursuant to the mandate of the statute, is before the Court. There is no genuine issue as to any material fact and the Court's consideration has, therefore, been limited to the questions of law.

We see no reason to discuss at length the many arguments advanced in support of the petition. The only important questions raised by these arguments have been fully answered by the Supreme Court. State of Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794; United Public Workers v. Mitchell, 330 U.S. 75, 94 et seq., 67 S.Ct. 556, 91 L.Ed. 754. The opinion of the Court in the latter case contains a complete discussion of the legislation and the reasons which prompted its enactment. There is but one argument here made which requires discussion.

The record discloses that the petitioner appeared at the hearing in obedience to a subpoena which was apparently issued by the Commission pursuant to Section 12(d) of the Act, 5 U.S.C.A. § 118k(d). He was called as a witness by the designated examiner and gave relevant testimony as to the nature of the political activity in which he had been engaged. The record further discloses that the petitioner was represented by counsel and that neither he nor his counsel interposed any objection to his being called as a witness. The constitutional privilege against self-incrimination was not invoked at the hearing.

The petitioner here urges for the first time that he was compelled to testify at the hearing in violation of his constitutional privilege against self-incrimination. Const. Amend. V. This privilege is personal and is deemed waived unless appropriately invoked. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 71 L.Ed. 560; Edwards v. United States, 10 Cir., 131 F.2d 198, 199; May v. United States, 84 U.S.App.D.C. 233, 175 F.2d 994, 1001. The failure of the petitioner to assert his constitutional immunity at the hearing, even if we assume that he had a right to assert it, must be interpreted as a waiver of the privilege. Ibid. This interpretation is fortified by the fact that the petitioner voluntarily filed an answer in which he admitted the specific charges made in a Letter of Charges filed by the Commission.

We must concede that the petitioner was required to appear at the hearing in obedience to the subpena, but, notwithstanding the language of the statute, he could not be compelled to give self-incriminatory testimony in violation of the Fifth Amendment. The statute contains the following provision: "No person shall be excused from attending and testifying * * * in obedience to a subpena on the ground that the testimony or evidence, * *...

To continue reading

Request your trial
9 cases
  • Laba v. Board of Educ. of Newark
    • United States
    • New Jersey Supreme Court
    • 4 Febrero 1957
    ...1298, 1326 (1940); Emerson and Haber, Political and Civil Rights in the United States 878 (1952). In Pfitzinger v. United States Civil Service Commission, 96 F.Supp. 1, 3 (D.C.D.N.J.1951), affirmed 192 F.2d 934 (3 Cir., 1951), the court suggested that a federal employee who is called before......
  • Moyer v. Brownell
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 5 Enero 1956
    ...to termination at the will of the employer, subject only to the applicable civil service laws." Pfitzinger v. United States Civil Service Commission, D.C.N.J.1951, 96 F.Supp. 1, 2-3, affirmed per curiam 3 Cir., 1951, 192 F.2d The hearing judge has difficulty in understanding the argument of......
  • Harper v. Comm'r of Internal Revenue
    • United States
    • U.S. Tax Court
    • 26 Mayo 1970
    ...criminal prosecution, a person may not claim the privilege, even if testifying may cause him to lose his job, Pfitzinger v. Civil Service Commission, 96 F.Supp. 1 (D.N.J. 1951), affirmed per curiam 192 F.2d 934 (C.A. 3, 1951); or his citizenship, DaCosta v. Holland, 151 F.Supp. 746 (E.D. Pa......
  • Sheiner v. State
    • United States
    • Florida Supreme Court
    • 29 Julio 1955
    ...It can not be invoked to protect one from removal from office under an act that forbids political activity. Pfitzinger v. U. S. Civil Service Commission, D.C.N.J.1951, 96 F.Supp. 1. The 'setting' of the question has much to do with determining the danger of self-incrimination. Hoffman v. Un......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT