James Alvin Peters v. The United States , 408 F.2d 719 ( 1969 )

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 “[t]he obvious purpose [of the evidentiary rule of the NLRB statute]” (similar to the C.S.C. Rule that judicial rules of evidence are not controlling) “is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order.” Id. at 229-230, 59 S.Ct. at 217. However, the Court did go on to add that “[m]ere uncorroborated hearsay or rumor does not constitute substantial evidence.” Id. at 230, 59 S. Ct. at 217. This statement was obviously dictum and was not supported by any citation. It was later cited in Willapoint Oysters, Inc., supra, where the Court did however say “The degrees of probative force and reliability of hearsay evidence are infinite in variation, and its use by administrative bodies, ex necessitate, must in part be governed by the relative unavailability of other and better evidence.” Id. 174 F.2d at 691.

In the present case, the Commission was without subpoena power to produce better evidence. 5 C.F.R. § 772.305(c) (1). In Conn v. United States, 376 F.2d 878, 883, 180 Ct.Cl. 120, 130 (1967), the court said “The only evidence supporting the Board’s recommendation that plaintiff be undesirably discharged was the ex parte investigation report of Major Weiler and the attached unsworn statements of witnesses whose testimony had been taken in Haiti. But plaintiff never participated in the investigation and was never accorded the rights of a party. Therefore his undesirable discharge based solely on such evidence was legally invalid.” [Emphasis supplied]

In the present case, the statements were sworn to, as the Board found, and were “affidavits” under the evidentiary rule of the Civil Service Commission. The Civil Service Commission in its decision on plaintiff’s appeal, said:

Neither the agency nor are we precluded from accepting and considering evidence which would be excluded under the hearsay rule, the best evidence rule, or parol evidence rule, etc. * * *

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In the final analysis, the issue is whether we choose to believe the four deponents on the one hand, or Mr. Peters [plaintiff] on the other, considering all the circumstances presented. * * *

Under the particular facts as to these four affidavits, we find that the Board could accept them as admissible and as competent and relevant evidence.

We are well aware that the traditional view is that the declarant must be unavailable for testimony before his declaration against interest will be admitted into evidence as an exception to the hearsay rule. However, it was plaintiff’s burden, as we will show later, to produce these four men for cross-examination, and plaintiff should not be allowed to defeat some of defendant’s evidence by mere inaction. In addition, there is authority, e. g., McCormick on Evidence, p. 554 (1954), and the Uniform Rules of Evidence, which would allow such statements to be admitted whether the de-clarant was available or not. Moreover, it could be argued that the declarants were unavailable in this administrative hearing because there was no subpoena power issuing from the Commission.

Having concluded that the evidence considered by the Commission was admissible, relevant and competent, we must now determine whether this evidence was substantial. Whether evidence is “substantial” is to be determined by whether there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Consolidated, Edison Co. et al., supra.

The probative value of hearsay rests in part upon the credibility of the witness testifying as to the hearsay statement, the accuracy of his recollection or statement of the alleged hearsay, and his ability and opportunity to observe and hear what was said of the hearsay. The Commission in weighing the evidence thoroughly and extensively, found that the two persons, Martino and Fleming, who testified as to the four hearsay affidavits, and the four affiants as well “had no ulterior motive in accusing Peters, such as malice, animosity, bias or ill will,” and concluded that they were telling the truth after careful analysis of all the evidence. The Commission concluded as to the weight of the evidence in this regard:

* * * We agree that apart from the evidence emanating from the two Hirseh brothers, Nutting and Morrell, we know nothing derogatory about Mr. Peters. We agree that whatever else we do know about him from the record is favorable and would give no reason to question his honesty or personal integrity. That however, is not enough to uphold his denial of wrongdoing and in our opinion, is overcome by the weight and preponderance of the damaging testimony of Col. Martino, Mr. Fleming and the four depositions. We conclude that all ten paragraphs under paragraph a. of the advance notice are substantiated and are sustained by the testimony and evidence from these people which we accept as worthy of belief.

We conclude that the evidence relied upon by the Commission, in reaching the above conclusion, was substantial. However, we feel impelled to add that the record in this case supplies only a bare minimum of the “substantial evidence” required by our review, and is hardly a model of thorough administrative procedure at either the agency or appellate level.

The four affidavits were also declarations against the interest of the affiants themselves (as distinguished from admissions against interest by a party to litigation). These statements were extra-judicial declarations that affiants had each bribed plaintiff. Extra-judicial declarations of the commission of criminal acts have been held not admissible in evidence as declarations against interest ; however, they have more recently been held admissible in an increasing number of jurisdictions.³ Rule 509 of the Model Code of Evidence of the American Law Institute provides (p. 255):

Rule 509 — Declarations Against Interest.

(1) A declaration is against the interest of a declarant if the judge finds that the fact asserted in the declaration was at the time of the declaration so far contrary to the declarant’s pecuniary or proprietary interest or so far subjected him to civil or criminal liability or so far rendered invalid a claim by him against another or created such a risk of making him an object of hatred, ridicule or social disapproval in the community that a reasonable man in his position would not have made the declaration unless he believed it to be true.

(2) Subject to Rule 505, evidence of so much of a hearsay declaration is admissible as consists of a declaration against interest and such additional parts thereof, including matter incorporated by reference, as the judge finds to be so closely connected with the declaration against interest as to be equally trustworthy.

Assuming the Board was correct in admitting the four affidavits as evidence, then they are clearly declarations against interest; payment of bribes is a criminal offense. In Camero v. United States, 345 F.2d 798, 170 Ct.Cl. 490 (1965), Camero was dismissed as a classified civil service employee for accepting bribes from one Altman. The evidence of bribery was a statement or admission by Altman to an FBI agent. The court commented:

Great reliance was placed by the depot commander upon the confession by Altman. This court is in agreement with the view of the depot commander that the probative value of the Altman statement is high because, in making it, Altman was subjecting himself to the possibility of criminal prosecution. Id. at 802, 170 Ct.Cl. at 496, footnote 7.

Plaintiff also complains that he was not afforded the opportunity to confront his accusers, i.e., the four men whose sworn statements were admitted into evidence, and to cross-examine them. However, the initial burden of trying to get the four men before the examiner for the purposes of cross-examination was on plaintiff.

In Williams v. Zuckert, 372 U.S. 765, 83 S.Ct. 1102, 10 L.Ed.2d 136 (1963), the case was remanded to the District Court:

* * * [to] determine whether the petitioner, desiring the presence of witnesses at his hearing, either discharged his initial burden under the applicable regulations by making timely and sufficient attempt to obtain their presence or, under the circumstances and without fault of his own, was justified in failing to make such attempt, and, if so, whether proper and timely demand was made upon the Air Force so that it was required to produce such witnesses for cross-examination. * * *

That case also involved a civilian employee of the Air Force, who appealed his discharge pursuant to § 14 of the Veterans’ Preference Act of 1944, 58 Stat. 390, 5 U.S.C. § 863, as amended. The regulations promulgated by the Civil Service Commission, in effect at that time, provided:

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The Commission is not authorized to subpoena witnesses. The employee and his designated representative, and the employing agency must make their own arrangements for the appearance of witnesses. 5 C.F.R. § 22.607 (Jan. 1, 1961 ed.)

Plaintiff here, also a preference eligible, filed his appeal with the Civil Service Commission pursuant to Part 752, Subpart B of the Civil Service Regulations, which deals with preference eligi-bles. Part 772 of 5 C.F.R., dealing with appeals to the Commission for review of agency actions, covers Subpart B of Part 752. (See 5 C.F.R. § 772.301).

The provision dealing with hearings, 5 C.F.R. § 772.305, reads in pertinent part:

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(c) Hearing procedures. (1) * * * Both parties are entitled to produce witnesses but as the Commission is not authorized to subpena witnesses the parties are required to make their own arrangements for the appearance of witnesses. [Emphasis supplied]

The language of the above-quoted regulation is remarkably similar to the regulation involved in Williams v. Zuckert, supra. In our opinion, that case controls, and thus the burden plaintiff bore here is the one mandated by Williams.

As to this aspect of the case, plaintiff’s attorney asked the Air Force to produce as witnesses the four men whose statements were submitted in evidence, in addition to three other men. In a reply, plaintiff’s attorney was informed that the four men who gave “depositions” were not U. S. Government employees, and except for training periods, there was no administrative authority to require their presence at a hearing. Plaintiff made no effort on his own behalf to obtain the presence of the four “deponents,” and the only people he tried to get could testify on peripheral matters only. Had plaintiff made a good-faith effort to get the four “deponents” to come to the hearing, and had he thqn been unsuccessful, he might have made a demand on the Air Force to try and produce them. But absent any effort on plaintiff’s part, the Air Force had no obligation in this regard. However, plaintiff’s attorney was advised by the Base Commander that if plaintiff requested these people, no objection would be interposed by the Air Force to their attendance “and any assistance possible will be rendered.”

This situation has been considered by this court before in a number of cases. In Begendorf v. United States, 340 F.2d 362, 169 Ct.Cl. 293 (1965), a veteran’s dismissal from the Treasury Department was sustained by the Civil Service Commission. Plaintiff claimed in this court that he was deprived of a procedural right by the refusal of the Treasury Department to produce certain employees to testify. The court in Begendorf, supra, discussed Williams v. Zuckert, supra, and stated:

Plaintiff does not make, or offer to make, the required showing. His counsel sent a telegram to the Treasury Department, the night before the Civil Service Commission hearing, asking for some 10 agents to appear. In the apt words of a recent decision involving the same issue (McTiernan v. Gronouski, 337 F.2d 31, 37 (C.A. 2 Cir., decided Aug. 28, 1964) ), there is “no suggestion that [plaintiff], on his own, initially contacted these witnesses and unsuccessfully attempted to arrange privately for their attendance at the hearing.” We agree with the Second Circuit that, in the absence of such a showing (or offer to show) or of some proper excuse, “no procedural rights to which [plaintiff] was entitled were violated when the [Treasury] Department failed to respond to his request.” Id. at 364, 169 Ct.Cl. at 296.

Similarly, there was no violation of Peters’ procedural rights when the Air Force did not produce the four requested witnesses.

Nor was Peters justified in not personally asking the witnesses to appear, as was plaintiff in Hanifan v. United States, 354 F.2d 358, 173 Ct.Cl. 1053 (1965). In Hanifan, supra, the two men sought to be cross-examined were employed by the Internal Revenue Service, which removed plaintiff from his job. Plaintiff there, over a period of months, repeatedly asked the IRS to produce them, but the men never appeared. Since the Service could have produced these men, and didn’t the court held that «* * if [p]laintiff would have been justified in both instances in concluding that a personal invitation by him to either Mr. Mullen or Mr. O’Hara to appear would be simply an exercise in futility.” * * * at 363, Id. at 1061.

In our case, however, plaintiff did not make the repeated attempts, over a period of months, to produce the attendance of the four men. In addition, the Air Force had no power to produce them, except on weekends of their training, when, in all probability, no Civil Service hearings were held. The Air Force did offer any assistance possible, but none was requested by plaintiff. Therefore, plaintiff was not justified in not attempting personally to have the deponents attend the hearing.

Turning now to the question of notice, we conclude that the Air Force complied with the regulation that plaintiff be given thirty days’ advance notice before his dismissal. (See 5 C.F.R. § 752.202(a) ). On October 6, 1964, Colonel Martino issued a thirty-day notice proposing to remove plaintiff from his position, enumerating detailed charges against him. On October 26, the Air Force issued an amendment to the notice, which as plaintiff’s counsel admitted, did not change any of the fundamental charges against plaintiff. In addition, the amendment specifically stated:

* * * [t]his amendment does not change the date from which the notice period began as shown in the “Notice of Proposed Removal” dated 6 October 1964, and received by you the same date.

Therefore, the final decision on November 9, 1964, to dismiss plaintiff, and the removal, effective November 20, 1964, did not violate the thirty-day requirement.

The procedures applicable to the review of the agency action involved here are set forth in 5 C.F.R., Part 772. Among the rights afforded plaintiff was the right to a hearing and the right to confront witnesses. 5 C.F.R. § 772.305 (b) and § 772.305(c) (3), respectively. In addition, plaintiff had the right to be represented by counsel, to appear personally, 5 C.F.R. § 772.305(c) (1), and to present evidence, 5 C.F.R. § 772.305 (c) (3). Even though this is not a case involving security or loyalty as in Greene v. McElroy et al., 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), and Gar-rott v. United States, 340 F.2d 615, 169 Ct.Cl. 186 (1965), basic rights due an individual who has been deprived of his job were afforded. It is true that plaintiff did not, in fact, confront his accusers. But under the test of Williams v. Zuckert, supra, it was plaintiff’s own inaction which deprived him of this opportunity, and it was not the fault of the Civil Service Commission or the Air Force. Assuming, arguendo, that greater protection could be afforded discharged employees, such as giving the Civil Service Commission the power to subpoena witnesses, the lack of such added protection is not a denial of due process in a case such as the one presented here.

Since the Air Force complied with all its regulations, and since plaintiff was afforded all his procedural rights by the Civil Service Commission in compliance with their own regulations, we hold that the latter’s decision was not arbitrary or capricious, and was based on substantial evidence. Accordingly, defendant’s motion for summary judgment is granted, plaintiff’s motion is denied, and the case is dismissed.

1 . Although this court does have the power, to grant back pay, it does not have the power to reinstate.

2 . 5 C.F.R. § 772.304 (1964 ed.).

3 . 29 Am.Jur. 673 and cases cited.