The opinion of the court was delivered by: KEECH
This case is before the court pursuant to remand in accordance with an opinion from the United States Court of Appeals for the District of Columbia Circuit. 116 U.S.App.D.C. 75, 329 F.2d 797. The appellate court directed further proceedings consistent therewith:
'The case is remanded to the District Court with instructions 'to hold a hearing and 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. Upon making such determination, the District Court shall thereupon enter such further order or judgment as may be appropriate.' (Citation)'
The 'hearing' mentioned in the fifth line of the above quotation refers to a hearing of December 9, 1960, before the Fifth Regional Office of the Civil Service Commission, relating to the matter of plaintiff's discharge, on November 1, 1960, from government service.
Subsequent to remand, the defendants resorted to discovery in the form of requests for admissions by the plaintiff. Thereafter, motions for summary judgment were lodged by plaintiff and by defendants, and hearings held thereon. Each side has therefore impliedly (and likewise, at hearing, affirmatively) asserted that there is no genuine issue of fact.
Insofar as pertinent to the instant inquiry, plaintiff charges in his complaint that prior to the hearing before the Fifth Regional Office of the United States Civil Service Commission he and his counsel:
'* * * demanded that certain civil service employees be required to attend the hearing and to testify in his behalf, namely, William J. Donovan, and John M. Dunning, the request was denied despite the fact that there was a lawful order of the Chairman of the Civil Service Commission to the effect that at any hearing any civil service employee who was a witness would be required to appear * * *. * * *' (Emphasis supplied.)
Significant to the court's determination of the present motions is the fact that the plaintiff has conceded since the remand from the Court of Appeals that the two witnesses referred to in the complaint, and in fact the only ones named therein, were present and that one of them testified, and further, that the plaintiff and his counsel knew that the said two witnesses were present and available to the plaintiff. In view of the present state of the record it would follow that the defendants' motion for summary judgment should be granted.
Plaintiff has not called the court's attention to any act or regulation requiring a civilian personnel officer to obtain attendance of military witnesses, and, to repeat, the record shows no request to military authorities to require the presence of any witnesses at the hearing. The mere request made of the civilian personnel officer for the attendance of certain military personnel, with reply by him that plaintiff would have to get his own witnesses, did not constitute such initiative by plaintiff as to put the burden on the civilian personnel officer to seek ways and means of causing the attendance of the witnesses.
The record fails to show that the plaintiff was lulled into a false sense of security by any government agent. Indeed the opposite is true. Plaintiff was promptly and specifically advised, by the civilian personnel officer of whom the request for their attendance was made, that plaintiff would have to obtain his own witnesses. This the plaintiff failed and refused to do, although he was aided by counsel. The record fails to indicate that he sought advice as to whom to go to, or that he attempted to initiate steps other than the request of the civilian personnel officer.
A simple request of the commanding officer of the military personnel whose attendance was sought would have been sufficient to insure their attendance. This assumption is warranted in the light of existing regulations, provided that need for such persons' presence at the hearing had been shown. Furthermore, had such a request been timely made and refused, and proper objection made to such refusal, there would have been some basis for plaintiff's present contention.
The court finds that no timely and proper demand was made upon the Air Force for the presence of witnesses at the hearing. The mere allegation that certain of the military personnel alleged to have been contacted had refused to appear voluntarily did not relieve plaintiff from requesting proper authority to require attendance. Similarly, it must be concluded that the request made of the civilian personnel officer to require attendance of military personnel, which was met with a direct and specific statement that the plaintiff would have to get his own witnesses, did not lull plaintiff into a position of false security but, rather, clearly pointed up the fact that if the witnesses were to be had plaintiff would have to take proper steps. A demand should then have been made on the Air Force for the appearance of such witnesses. Such demand, therefore, became a part of the plaintiff's initial burden of making timely and sufficient attempt to obtain their presence. Hence, plaintiff's failure to make this demand constituted failure to make such timely and sufficient attempt; nor was such failure justified through fault other than his own. Consequently none of the three requirements specified by the Court of Appeals remand has been met. Furthermore, only two civilian witnesses' absence is complained of (as hereinbefore specifically set forth), and both of these were present at the hearing.
From the foregoing, the court is constrained to hold that the defendants' motion for summary judgment should be granted and that plaintiff's motion for summary judgment should be denied. Counsel for ...