Williams v. Zuckert, 133

• Decision Date: 14 January 1963
• Docket Number: No. 133,133
• Citation: 9 L.Ed.2d 486,83 S.Ct. 403,371 U.S. 531
• Parties: Daniel Alton WILLIAMS, Petitioner, v. Eugene M. ZUCKERT, Secretary of the Air Force, et al
• Court: U.S. Supreme Court

371 U.S. 531

83 S.Ct. 403

9 L.Ed.2d 486

Daniel Alton WILLIAMS, Petitioner,

v Eugene M. ZUCKERT, Secretary of the Air Force, et al.

No. 133.

Argued Dec. 13, 1962.

Decided Jan. 14, 1963.

David I. Shapiro, Washington, D.C., for petitioner.

Stephen J. Pollak, Washington, D.C., for respondents.

PER CURIAM.

Petitioner, a veteran with civil service status, was discharged from his civilian position with the United States Air Force for alleged misconduct. Subsequent to unsuccessful prosecution of appropriate administrative proceedings for review of his discharge, he brought suit in the District Court, which granted summary judgment to the respondent Air Force. The Court of Appeals affirmed. 111 U.S.App.D.C. 294, 296 F.2d 416. Certiorari was granted, 369 U.S. 884, 82 S.Ct. 1166, 8 L.Ed.2d 286, to consider whether, under the principles enunciated by this Court in Vitarelli v. Seaton, 359 U.S. 535, 544—545, 79 S.Ct. 968, 975, 3 L.Ed.2d 1012, petitioner's discharge was vitiated by an improper denial of a right to cross-examine at his hearing before the Civil Service Commission on appeal pursuant to § 14 of the Veterans' Preference Act of 1944¹ and the implementing regulations² promulgated by the Commission.

Review of the record and argument of counsel disclose, however, that the Vitarelli issue is not adequately presented by this case; accordingly, we conclude that the writ of certiorari should be dismissed as improvidently granted.

Although amply notified in advance of the nature of the charges, the names of the witnesses whose affidavits had supplied the factual basis for his dismissal, and the date of the hearing, neither petitioner nor his counsel made any request, prior to the hearing, of the Air Force, of the Commission or its examiner, or of the witnesses themselves, for their appearance for cross-examination. The request for production of the witnesses, made only at the hearing by petitioner's counsel, was neither timely nor in conformity with the applicable regulations, which contemplate that the party desiring the presence of witnesses, either for direct examination or cross-examination, shall assume the initial burden of producing them.³

Had petitioner discharged this burden by timely attempt to obtain the attendance of the desired witnesses and through no fault of his own failed, then, to give meani- ng to the language contained in the regulations affording the 'opportunity * * * for the cross-examination of witnesses,'⁴ the Air Force would have been required, upon proper and timely request, to produce them, since they were readily available, and under the Air Force's control. Vitarelli v. Seaton, 359 U.S. 535, 544—545, 79 S.Ct. 968, 975, 3 L.Ed.2d 1012, would so require. Here, however, though petitioner seeks to rely upon the regulations, he has failed to bring himself within them.

Petitioner was accorded ample opportunity to present his own case and rebut the charges against him at several levels of the proceedings before the Air Force and the Civil Service Commission.

The writ of certiorari is dismissed.

Mr. Justice HARLAN concurs in the result.

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

After 16 years of faithful government service, petitioner has been branded with a stigma and discharged on the strength of three affidavits. Though he asked that these affiants be produced at his hearing, none was called to confront him. The Court says that petitioner's request came too late to conform with the applicable Regulation.¹ Due process dictates a different result. We have heretofore analogized these administrative proceedings that cast the citizen into the outer darkness to proceedings that 'involve the imposition of criminal sanctions'; and we have looked to 'deeply rooted' principles of criminal law for guidance in construing regulations of this character. Peters v. Hobby, 349 U.S. 331, 344—345, 75 S.Ct. 790, 796, 99 L.Ed. 1129; Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377. By that analogy we should construe the present Regulation as being protective of the right of confrontation, not as providing a technical way in which the right is either saved or lost.

Confrontation and cross-examination are, as I understand the law, vital when one's employment rights are involved. See Greene v. McElroy, supra, 496, 79 S.Ct. 1413; Beard v. Stahr, 370 U.S. 41, 43, 82 S.Ct. 1105, 1106, 8 L.Ed.2d 321 (dissenting opinion). Petitioner is not merely being 'denied * * * the opportunity to work at one isolated and specific military installation.' Cafeteria & Restaurant Workers, etc. v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230. The stigma now attached to him will follow him, whatever employment he seeks. The requirements of due process provided by the Fifth Amendment should protect him against this harsh result by giving him the same right to confront his accusers as he would have in a criminal trial. See Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409;² Kirby v. United States, 174 U.S. 47, 55, 19 S.Ct. 574, 577, 43 L.Ed. 890; Curtis v. Rives, 75 U.S.App.D.C. 66, 123 F.2d 936, 938. For this discharge will certainly haunt his later life as much as would a conviction for willful evasion of taxes.

A trial for misconduct involving charges of immorality, like one for disloyalty, is likely to be 'the most crucial event in the life of a public servant. If condemned, he is branded for life as a person unworthy of trust or confidence. To make that condemnation without metic- ulous regard for the decencies of a fair trial is abhorrent to fundamental justice.' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 180, 71 S.Ct. 624, 653, 95 L.Ed. 817 (concurring opinion).

Petitioner has been deprived of his job and permanently stigmatized without being confronted by his accusers, even though he requested that they be called and even though they could easily have been produced. Petitioner does more than rely on the Regulation. He relies on the Fifth Amendment and the Sixth Amendment. To be sure, his request at the hearing was not phrased in constitutional terms. But administrative procedures are not games in which rights are won or lost on the turn of a phrase. In the District Court he claimed that this procedure 'was arbitrary and capricious and violative of the Fifth and Sixth Amendments of the Constitution.' That adequately raised the issue. See Terminiello v. Chicago, 337 U.S. 1, 6, 69...