The specific objections advanced by the plaintiff against the validity of the present statute can be disposed of briefly. The first critcism is that it places the burden of proof on the officer instead of on the Government. Bearing in mind that the purpose of the statute is not to provide for trial of officers on specific charges, but to create an administrative machinery and routine for eliminating officers who do not meet the required standards, there is no constitutional objection to placing the burden of proof where it is deemed appropriate to do so in the interests of the public welfare. The essence of the statute is that if a doubt arises whether a particular officer should be retained in the service, he has the onus of convincing his superiors that he should not be eliminated. No constitutional objection to this provision is discernible.
The second objection is that there is no provision for confronting the officer with witnesses against him. The constitutional provision for confrontation is a vital feature of the Bill of Rights. It is intended, however, for trials in the criminal courts and is a safeguard in the administration of the criminal law. It does not necessarily have an essential function in other activities of Government. For example, the Civil Service Act, 5 U.S.C.A. § 652, provides that a civil service employee shall not be dismissed except on charges. It not only fails to provide for confrontation with witnesses, but it does not even accord a hearing to the employee. It requires merely that the employee be given notice of the charges and an opportunity to file a written reply. The validity of this provision is unquestioned and has been consistently applied and judicially approved since its enactment in 1912.
In Williams v. Zuckert, decided by the United States Court of Appeals for the District of Columbia Circuit, on November 9, 1961, 296 F.2d 416, it was held that a civilian employee of the Government who has veterans' preference is not entitled to the production of witnesses for cross-examination, in a case in which affidavits were the basis of charges against him. The Court called attention to the fact that statutes authorizing the dismissal of civilian employees by an administrative process, do not require the Government to produce for cross-examination the persons whose affidavits or statements supply the factual basis for dismissal. No reason is perceived why these remarks are not equally applicable to the statute here under consideration. The necessary inference from the opinion in Williams v. Zuckert, is that there is no constitutional infirmity in the statute because of that circumstance.
The Court, therefore, concludes that the statute under consideration is not repugnant to the Constitution.
The cases on which the plaintiff relies are distinguishable. Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400, 3 L. Ed. 2d 1377, did not involve members of the armed forces, but concerned a civilian employee of a Government contractor. He was dismissed by the latter because the Government denied him clearance to security information, and the employer was unable to use him on work of other types. The case does not bear on the rights of the Government as against officers of the armed forces. Moreover, the effect of this case has been considerably narrowed by Cafeteria and Restaurant Workers, etc. v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230, in which it was held that an employee of a concessionaire on a military or naval installation could be summarily deprived of right of access to the area.
Bland v. Connally, 110 U.S.App.D.C. 375, 293 F.2d 852, and Davis v. Stahr, 110 U.S.App.D.C. 383, 293 F.2d 860, likewise did not deal with active personnel of the armed forces, but concerned inactive reservists. The decisions were based on the proposition that Congress had not authorized the Secretary of the Navy to issue a discharge to inactive reservists under conditions less than honorable. No constitutional question was determined.
Harmon v. Brucker, 355 U.S. 579, 78 S. Ct. 433, 2 L. Ed. 2d 503, held that neither statutes nor regulations authorized the Secretary of the Army to issue discharges to soldiers in form other than honorable because of pre-induction activities. It did not involve any constitutional question.
In conclusion the Court may well refer to the famous remarks made by Mr. Chief Justice Taney, over a century ago, in Decatur v. Paulding, 14 Pet. 497, 516, 10 L. Ed. 559:
'The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that such a power was never intended to be given to them.'
Accordingly, the motion of the defendants for summary judgment will be granted, and the plaintiff's cross-motion denied, the motion for a preliminary injunction will be denied, and the temporary restraining order vacated.
Counsel may submit an appropriate order.