Williams v. Zuckert

PETITIONER:Williams
RESPONDENT:Zuckert
LOCATION:Formerly S. H. Kress and Co.

DOCKET NO.: 133
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 371 US 531 (1963)
ARGUED: Dec 13, 1962
DECIDED: Jan 14, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – December 13, 1962 in Williams v. Zuckert

Earl Warren:

Defendants [Inaudible] for the purpose of the next case to be summed by next [Inaudible] of petition number 133, Daniel Alton Williams, Petitioner, versus Eugene M. Zuckert, Secretary of the Air Force.

Mr. Shapiro.

David I. Shapiro:

May it please the Court.

The issue in this case is whether an employee with veterans’ preference status can be denied an opportunity to confront and cross-examine his accusers in a proceeding before the Civil Service Commission challenging his removal from federal employment.

The employing agency, in this case, the Air Force, admitted that the witnesses to petitioner’s alleged misconduct were all airmen, on active duty and subject to which military control, yet it refused to produce them before the Civil Service Commission because if the Air Force unilaterally concluded that their testimony would not have aided the petitioner’s test.

Now, court below held that the failure of the Air Force to produce these witnesses did not violate petitioner’s statutory or procedural rights, one of the facts.

The petitioner was a veteran with 16 years government service, was employed as a recreational supervisor at the Air Force Academy.

On March 19, 1959, he was suspended from employment on grounds that he had attempted to make homosexual assaults upon three airmen and it willfully damaged a government type.

Potter Stewart:

He was a civilian employee?

David I. Shapiro:

Yes sir he was.

Potter Stewart:

Although he had been in military, it’s in the Air Force?

David I. Shapiro:

That’s correct.

Potter Stewart:

In military.

David I. Shapiro:

Yes.

Now, two of the attempted assaults were alleged to have occurred while the petitioner was on active duty with the Air Force, approximately a year and two years before.

The third attempt was alleged to have occurred while he was employed in a civilian capacity at the Air Force Academy.

Now, prior to his removal, the petitioner was notified that he could answer the charges against him personally and in writing.

However, since he had been prohibited the day before from entering the academy grounds on pane of arrest, he did not avail himself of his so-called “opportunity” to answer the charges in person, but did so in writing instead.

Now he was, after he replied in writing, discharged from his position with the Air Force on April 12, 1959.

He then appealed to the Civil Service Commission under Section 14 of Veterans Preference Act.

On May 5, 1959, the Tenth Civil Service Region held a hearing to take evidence of petitioner’s misconduct.

Now at the outset of the hearing, the petitioner requested the Department of the Air Force for an opportunity to interrogate three airmen, two of them were alleged victims of this homosexual attempts and who were stationed at the Air Force academy but this requests were rejected.

The Air Force submitted its evidence against the petitioner in affidavit form and while admitting its ability to produce all three airmen, it declined to do so on the grounds at the hearing that the Air Force Academy saw no need for their attendance, it did not consider that they would be able to add anything to the case.

They later explained this by saying that if they had appeared, the testimony that they would’ve offer on cross-examination would even been more damaging to the petitioner.

Potter Stewart:

To who is which — who is the third?

You told us that two of the witnesses —

David I. Shapiro:

The third one apparently was an individual who was present there.

There is some confusion in the record.

They were actually two of these airmen who were the accusing witnesses that he requested.

The third was apparently an individual, another airman who was present during one of the occurrences and I think the government states that fact correctly in its brief with regard to that airman.

David I. Shapiro:

Now, as I said, the Tenth Civil Service Region upheld the refusal of the Air Force to produce the airmen and despite the petitioner’s denial of the assaults which included an attack on the credibility of these accusers, the conflicts and evidence according to the Tenth Civil Service Region were resolved in favor of the Air Force and petitioner’s removal from the stand.

The petitioner appealed to the Board of Appeals and Review of the Civil Service Commission which affirmed the regional director’s decision on his rationale.

On June 6, 1960, the petitioner filed the complaint in United States District Court on cross motion for summary judgment.

The District Court dismissed the complaint.

On November 9, 1961, the Court of Appeals affirmed.

Now, we contend that where the issue on a veteran’s appeal to the Commission turns in part on the credibility of the witnesses against him and the agency admits command and control of those witnesses, Section 14 of the Veterans Preference Act and the applicable Civil Service regulations do not authorize the agency to refuse to produce such witnesses at the hearing, but to rely in their affidavits instead.

Section 14 of the Veterans Preference Act of 1944, although it’s modeled on Section 6 in the Lloyd-La Follette Act of 1912, was designed to provide special and additional preferences for war veterans.

That statute eliminated the Lloyd-La Follette provision making cross-examination of witnesses, trial or a hearing a matter for the discretion of the removing officer and substituted in its place an appeal to the Civil Service Commission with the right to make an appearance either personally or by representative.

And here’s the provision which was excluded from the Veterans Preference Act and is contained in the Lloyd-La Follette Act, “No examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer directing the removal or suspension.”

As I say, that was specifically eliminated from the Veterans Preference Act and in its place was substituted the appeal provisions of the Civil Service Commission.

Now, the legislative history in the 78th Congress is virtually silent as to the meaning of Section 14 appeal provision, but the legislative history of that provision in both the 75th and 76th Congresses demonstrates, we think, that it was designed to provide a trial type hearing on the appeal to the Commission.

Legislative representative of the veterans of foreign wars testified in 1937 and pretty much the same way again in 1939 that, “The purpose of that Section referring to what became Section 14 as apparent is to prevent any man from being let out without good cause shown and he would be let out only after a proper hearing.”

It would protect veteran from being discharged for shall I say personal reasons and on the other hand it will not absolutely prohibit a supervisory officer from discharging a man for cause, but it does give the veteran an opportunity to defend himself by trial.

Now Your Honors, almost immediately after 14 of the Veterans Preference Act was enacted, the Civil Service Commission adopted regulations governing employee appeals.

These regulations, which are substantially the same now as when the first issued, provide pretty much as follows.

First, the employee has a right to appear at the hearing on his appeal.

The agency has a right to participate in such hearing and both parties shall have the right to produce witnesses, that’s 22601.

Two, opportunity will be afforded for the introduction of evidence, including testimony and statements by the employee and witnesses and by representatives of the agency and its witnesses and for the cross-examination of witness, that’s 22603.

[Inaudible]

David I. Shapiro:

Yes sir, they were.

Third, the testimony at hearing shall be uninterrupted.

Now the court below following its earlier decision in the Luévano against Campbell concluded despite these regulations that in as much as 22607 of the Commission’s regulations provided that the Commission is not authorized to subpoena witnesses and that the employee and the agency must make their own arrangements for the appearance of witnesses, the failure of the Air Force to produce its witnesses at the hearing in no way violated the petitioner’s rights.

Now, we say that this interpretation of 22607 is erroneous.

We say that that section has to be read together with 22601 which provides that both the employee and the agency shall have the right to participate in a hearing and that both parties shall have the right to produce witnesses.

When so read, we say that 22607 means that since the Commission is not authorized to subpoena witnesses, the employee and the agency must make their own arrangements for the appearance of their own witnesses because otherwise, the regulations providing for cross-examination of witnesses and requiring that the testimony at the hearing should be under oath would be rendered meaningless and as a matter of fact, since the Luévano against Campbell they have it.

Now, the government argues, first, that the Commission has always interpreted its regulations to mean that the employee has the burden of persuading the agency’s witnesses to appear and testify against him first before being able and able under the regulations or entitled to cross-examine.

And second, that Congress by reenacting the Veterans Preference Act in 1947 implicitly accepted and ratified this so-called interpretation and if the Court please, the only thing that Congress had before it in 1947 was the Commission’s regulations and it was these regulations, the ones I’ve just quoted here, not the Commission’s unreported administrative practice under them which Congress in 1947 implicitly accepted and ratified.

Because in fact, the Commission’s interpretation which the government can — for which the government contends was an unknown prior to the 1952 decision in the Luévano against Campbell, which this Court declined to review on certiorari and which we say was wrongly decided.

The Luévano rule makes Veterans appeal hearings before the Commission where both parties are granted the right under these regulations to produce witnesses, to introduce evidence, to cross-examine witnesses in a hearings where the employee submits his evidence by testifying under oath and subjecting himself to cross-examination.

And the Government submits its witnesses by submitting affidavits and you cannot cross-examine an affidavit.

David I. Shapiro:

Now, in practical effect, what has happened is that the employee’s right of cross-examination specifically provided for in 22603 has been read out of the regulations entirely.

I say employee has his right of cross-examination, but the government still retains its right of cross-examination.

Arthur J. Goldberg:

[Inaudible]

David I. Shapiro:

That is correct.

Now, as a matter of fact, I think the reason for that was that he had hoped to make his case through the testimony of the witnesses that did not appear and that’s why at the outset of the hearing he asked the Air Force to produce them.

Arthur J. Goldberg:

[Inaudible]

David I. Shapiro:

That’s correct, sir.

Now, —

Potter Stewart:

But it wasn’t indicated that these were to be produced as his witness.

They were —

David I. Shapiro:

No, sir.

They were the government’s witnesses that he had —

Potter Stewart:

Whom he wanted to cross-examine?

David I. Shapiro:

Yes sir.

Now, the government suggests that this problem that we have here need never have come about and that in fact the witnesses might have appeared at the hearing if petitioner had only taken the trouble to ask them to appear.

But this suggestion ignores Air Force regulation 110-5 which precludes the voluntary appearance of Air Force personnel at such hearings absent prior consent from the Air Force.

The fact that the Air Force rejected the request of the petitioner that such witnesses be produced and the fact that these witnesses were stationed at the Air Force Academy and petitioner have been prohibited from entering the Academy’s grounds.

Now, the government attempts to make much of the fact that the Commission has no subpoena power and this of course is true, but Section 05.3 of the Commission’s rules, that’s 5 C.F.R.05.3, which unfortunately is not set forth in the briefs, specifically provides, “All officers and employees in the executive branch shall give to the Commission or its authorized representatives, all information and testimony in regard to matters inquired of arising under the laws, rules, and regulations administered by the Commission.”

[Inaudible]

David I. Shapiro:

5 C.F.R., Section 05.3, in Vitarelli versus Seaton —

[Inaudible]

David I. Shapiro:

5 C.F.R., Section 05.3 —

[Inaudible]

David I. Shapiro:

In Vitarelli the Interior Department had no subpoena power and no power equivalent to that’s set forth in 05.3 of the Commission’s rules.

Yet, in that case, this Court construed a Department of Interior Order which gave the employee the right to cross-examine any witness offered in support of the charges as requiring the Interior Department to call as witnesses at the hearing, all so-called non-confidential informants who supplied information against the employee upon which the agency relied.

Your Honors, we say that [Inaudible] is controlling in this case and that the decision below should be reversed.

John M. Harlan II:

[Inaudible]

David I. Shapiro:

I’m sorry sir, I didn’t hear your question.

John M. Harlan II:

Did any case come before or after?

David I. Shapiro:

Before sir, 1952.

David I. Shapiro:

Vitarelli was decided I believe in 1959.

Earl Warren:

Mr. Pollak.

Stephen J. Pollak:

Mr. Chief Justice, may it please the Court.

Petitioner was a civilian employee of the Air Force employed as a recreation supervisor at the Air Force Academy in Colorado Springs.

He was removed after proceedings before the Air Force and on appeal before the Civil Service Commission, proceedings which upheld the charges that he had committed homosexual assaults on three named airmen.

These charges which are set forth at pages 16 and 17 of the record provided petitioner with the names, dates, and places of the alleged assaults.

The subjects of the assaults, the accusers were known to the petitioner, but he did not call them to the hearings nor did the Air Force call them, the record consisted of affidavits.

The issues in the Government’s view here is not whether an employee can be denied an opportunity to confront and cross-examine his accusers for we believe there was no such denial here rather we believe the issue is whether a government employee under the Veterans Preference Act and the regulations must make his own arrangements for the appearance of witnesses whom he may wish to examine or cross-examine.

We believe the regulations are clear, that this obligation was placed on the employee and more so had he done so that he would’ve been afforded his full rights of examination.

We do not believe there is any basis in this record for a contention that the witnesses would not have agreed to appear or that the Air Force would’ve precluded their appearance.

John M. Harlan II:

Well, may be I’m confused, wasn’t the request made to the production of these witnesses?

Stephen J. Pollak:

At the proceedings before the Civil Service Commission, the proceedings on appeal Mr. Justice Harlan at page 44 of the record, the attorney, the counsel for Mr. Williams asked the Air Force or one of the Air Force representatives at that proceeding, Mrs. Dillon, a personnel officer whether three named airmen were available for attendance at the hearing as witnesses and if so, why they had not been brought.

Mrs. Dillon responded that the — that two of the men were stationed at the Academy, Colorado Springs which was some 68 miles from the location of the hearing and that the Air Force saw no need for their presence and did not believe that they would be able to add anything and had not called them as its witnesses.

We believe that this request here was a request that the Air Force produce these men as its affirmative case witnesses.

John M. Harlan II:

And that’s all there is —

Stephen J. Pollak:

That’s all there is.

John M. Harlan II:

— in the record?

Stephen J. Pollak:

In our judgment, yes.

Further, a review of the contentions before the Board of Appeals and Review, I believe indicates that that is petitioner’s contention.

Moreover, in a later response in the Board of Appeals and Review proceedings, the Air Force representative, the personnel officer stated that there was, and I’m quoting from page 85 of the record, “that there was no design or intent upon — on the part of any official of the Air Force to preclude Mr. Williams from such opportunity” that is the cross-examination or having the witnesses.

As I will indicate in the moment, the regulations are clear that each side is to make arrangements for its witnesses.

These regulations are set forth in the appendix of the government’s brief and the Air Force was proceeding on that basis.

John M. Harlan II:

Well, is the government’s position that if they requested the names and he wanted these witnesses to testify on cross-examination purposes it would – should have been granted, is that it?

Stephen J. Pollak:

It is the government’s position that he asked these witnesses to appear in accordance with the Air Force policy, the Air Force would’ve permitted and in fact assisted the witness to appear.

I refer to the regulations which are in the appendix to the petition for certiorari, regulation 804.403, that is in the 32 C.F.R., Air Force Regulations which states that it is the policy of the Department of the Air Force to make official information available for use in litigation and to permit military and civilian personnel to testify concerning such information in its files if material and relevant to litigation.

And that had the petitioner and his lawyer only addressed their request to these witnesses or a request to the Staff Judge Advocate who was located on the Air Force Academy grounds that in accordance for these regulations, the witnesses we have no way of knowing whether they would have agreed or disagreed, the individuals, but the Air Force would’ve permitted them to testify and I think in accordance with its policy would’ve encouraged them to do so.

Arthur J. Goldberg:

Mr. Pollak, what is [Inaudible]

Stephen J. Pollak:

Well, might I respond to that in two ways.

First, counsel for Mr. Williams here has cited the regulation 05.3 and advised me yesterday that he would do so.

In reviewing that regulation, I find that it does not apply to members of the military.

Stephen J. Pollak:

Members of the military are excluded from that power of the Commission by a just immediately prior regulation 01.1 which states that the rules in this sub-chapter apply to all positions in the competitive service.

So that I cannot respond to your question by saying that the Commission could have ordered their appearance under 05.3 because it does not have that power over members of the military.

Whether the — a request then to the examiner, Civil Service Examiner should have brought forth an order then whatever power it had that they appear, I’m not sure how it would develop since it’s — since none of these steps were taken.

But certainly, had the witnesses refused to appear, had the attorney for Mr. Williams contacted the Air Force and asked the Air Force to urge them to appear, had he asked the examiner, none of these he did, had he asked the examiner to order the witnesses to appear, had he asked the examiner to strike the affidavit, if they did not appear, any one of those steps were open to this petitioner and he and his counsel did not take it.

Arthur J. Goldberg:

[Inaudible]

Stephen J. Pollak:

If —

Arthur J. Goldberg:

[Inaudible]

Stephen J. Pollak:

No.

Well, Your Honor, this is a summary of the proceedings prepared by the examiner and given the counsel for each party and we can only read that in the light of what is here.

And we read it to mean that the request was that the Air Force produce these witnesses as part of its affirmative live case and that that request was denied.

We read it to mean that the petitioner wanted the Air Force to arrange for their appearance as its witnesses and we read no more into it.

The complaint of the petitioner as indicated a little bit thereafter on pages 47 and 48 was that he had had no opportunity to cross-examine the witnesses on whose statement to the Air Force is relying on.

I don’t believe that he was contending that the Air Force was there refusing a request for him to call them as his witnesses by him.

For example he made no objection to the proceedings taken place on affidavits.

He did not suggest that the Air Force affidavits which were part of the record before the examiner that should be —

William J. Brennan, Jr.:

(Voice Overlap) I must confess I didn’t think there’s [Inaudible] can I just sum up the word, what is the government’s position, is it that — is there any premise that he was entitled to have confrontation here or is it the government’s position that he’s not?

Stephen J. Pollak:

It is the government’s position that the regulations here afford cross-examination of witnesses to either party brings to the hearing and that had he asked these witnesses to appear and they appeared why certainly he is entitled to cross-examination.

William J. Brennan, Jr.:

But — is it the government’s position that he followed the regulation and had not been able to get them to appear that the government had no obligation to produce witnesses.

Stephen J. Pollak:

I think they — I’m not certain that the government would be here and let me state this case.

If you’re suggesting that he had — had he asked them to come that they refused and he addressed to request to the staff judge advocate that staff judge advocate concededly — and let them to come with — they were saying, well we can’t come because the Air Force says no and had the Air Force declined to permit them.

William J. Brennan, Jr.:

No, I’m not thinking to that.

I gather what you just said is that there’s a permission on that part of the witnesses to appear or not as the witnesses.

Stephen J. Pollak:

Yes, which stems —

William J. Brennan, Jr.:

(Voice Overlap)

Stephen J. Pollak:

— which stems from the lack of a subpoena.

William J. Brennan, Jr.:

Alright, now, what I’m trying to get to in this, if that had happened here, there’s been a proper request whatever regulations provide and nevertheless although the Air Force to believe that let them come you said no, I won’t come, would the government then decide that you nevertheless have proceeded and dismiss him as he was dismissed without producing?

Stephen J. Pollak:

On the basis of the affidavits of men who refused to appear and who could not be ordered.

William J. Brennan, Jr.:

Yes.

Stephen J. Pollak:

The regulation supports cross-examination of witnesses.

I don’t think that that would come within the regulation and I believe that would present a more serious question such as order of this Court based in Green and the McElroy or possibly in some of the considerations which were present in the Vitarelli.

William J. Brennan, Jr.:

Well, am I —

Stephen J. Pollak:

We don’t think that question is presented here.

William J. Brennan, Jr.:

Well, am I to infer then from your answer that so far as the government’s concern the only question before us is did he or did not apparently he did not this — to have to ask for those witnesses as the regulation said that he might be and if it’s the fact that he did not although he might have under the regulations that are set forth.

Stephen J. Pollak:

That is our position.

I believe that is the case presented on this record.

I —

Byron R. White:

I thought you also want us to believe that the [Inaudible]

Stephen J. Pollak:

That’s right, sir.

Byron R. White:

And that the government presented these by affidavit [Inaudible]

Stephen J. Pollak:

Even though, that’s right, that the government may present its case on affidavit and that he is not to direct his request to the government to present a live case but rather to bring the witnesses in and in accordance with the regulations which make this an informal proceeding where the rules of evidence are not strictly enforced where a verbatim transcript need not be necessary.

He may cross-examine them, he may bring them in, call them and then proceed to cross-examine.

Byron R. White:

And would you say that if he wants to look at the error, he should pass and arrange [Inaudible]

Stephen J. Pollak:

That is — yes, the —

John M. Harlan II:

[Inaudible]

Stephen J. Pollak:

That’s right.

The regulation provides and has provided since the Act was passed in 1944 and the regulations were issued in November of 1944 that the employee and his designated representative and the employing agency must make their own arrangements for the appearance of witnesses.

And the interpretation of that regulation has been consistent that each side must if it wishes live witnesses it must bring them to the hearing.

Byron R. White:

Did you ever had a perfect right for producing witnesses’ affidavits and do not really find the man because [Inaudible] and it has the perfect right to give, to arrange the witnesses to this end where the employee [Inaudible]?

Stephen J. Pollak:

That I believe you’ve correctly stated what our position is, yes and here, he did not do so as we read this record.

Byron R. White:

And the case, you say, isn’t here when he tries to go [Inaudible]

Stephen J. Pollak:

The case that isn’t here is where he tries to make his own arrangements and the witnesses themselves say, “No, we won’t come –”

Byron R. White:

Or the government —

Stephen J. Pollak:

Or the government obstructs it, yes, and we state that had he only tried, the Air Force regulations would have required the Air Force to permit them to come and to assist in their coming.

John M. Harlan II:

But you’re not — you’re saying number one, as I get it, that the regulations don’t give this man a right to require the government to call a witness for his own case, if they don’t want to call.

Stephen J. Pollak:

That’s right.

John M. Harlan II:

And you a fortiori not arguing that if it chooses to hear the affidavits that they then can’t say, “Well, since we haven’t produced any witness, we don’t have to produce these fellows to the cross-examination.”

You’re not taking that position.

Stephen J. Pollak:

No.

This light went on and I — if they only meant that I didn’t (Voice Overlap) second question —

John M. Harlan II:

Well, I guess my question is rhetorical so it’s late, [Inaudible]

Stephen J. Pollak:

I wanted to mention one other factor of proceeding.

Following a proceeding before the Air Force which the petitioner chose not to make personal appearance, he was advised of his right to make an immediate appeal or to seek grievance proceedings before an Air Force grievance committee.

He chose with counsel to take an immediate appeal to the Civil Service Commission and that is the proceeding which is the issue here.

Had he chosen to go first to the grievance committee, the Air Force regulation which is cited in this letter advising him that he might seek provide that at that hearing, he might list witnesses whom he wish and that the Air Force grievance committee would order their appearance that had he availed himself of this right to seek grievance proceeding for the Air Force, the confrontation and cross-examination which he is complaining here or lack of it on the appeal would have been afforded in proceedings before the Air Force under Air Force regulations.

These regulations appear in the Air Force Manual 40-1 of public regulation.

We believe that here, the — there — we recognize there was no cross-examination or confrontation.

What we believe is that it was the fault of the petitioner that had he sought to ask for these men to appear, had he sought to ask the examiner to give him a continuance to ask them, had he sought to ask that the affidavit to be struck for in any other way to avail himself of a right to cross-examination, it would’ve been procured or at least an issue farther from that which we’re confronted here have been raised.

Earl Warren:

[Inaudible]

Stephen J. Pollak:

We believe, Mr. Chief Justice, we believe he did.

Earl Warren:

I thought it was his counsel.

Stephen J. Pollak:

Yes.

Earl Warren:

So far as the examiner could not go on there and that they were in the academy.

Stephen J. Pollak:

Mr. Chief Justice, counsel did make that — take that position.

Earl Warren:

Yes.

Stephen J. Pollak:

In our view, these witnesses were certainly available to this man.

He was represented by counsel and the Air Force Academy is an open base.

Counsel on business could have proceeded to find the witnesses and asked them to appear.

The petitioner had he not been avail himself of counsel, because he have, could have written, telephoned, telegraphed as indications that these men, the witnesses whom he was seeking, frequently went off the base, the record shows that these alleged incidents occurred off the base and for all the record shows they may have lived off of the base.

We think that petitioner’s right to access to these men was very clear.

He had no difficulty for reaching them.

Had he really wanted them a communication to the Staff Judge Advocate on the base from his lawyer, Mr. Williams’ attorney would’ve — we think had gone right through.

There’s no indication, in fact, there is a concession which is reported page 110 of the record in the Court of Appeals opinion that he made no attempt to contact.

He made no attempt to ask them to come; he didn’t know if they would come.

I would like only briefly to reply to the contention that the Veterans Preference Act was enacted to set up a trial type hearing.

I think that the brief shows that the words of a statute which state that the employee shall have a right to make a personal appearance.

The legislative history and really all the other pertinent evidence shows that the statute was meant to give a right of personal appearance and no more.

Might I just say that I believe on this record, we must assume that had petitioner asked these witnesses, they would’ve attended and that the Air Force would’ve given its permission.

The remote possibility that they might have refuse, that the Air Force would’ve given permission is not present here because petitioner and his lawyer never asked. We respectfully request the Court to affirm the judgment below.

Earl Warren:

Mr. Shapiro.

David I. Shapiro:

I’d like to read from page 47 of the record if I may.

David I. Shapiro:

This is the middle paragraph.

At this time, Mr. Andrews who’s the counsel for petitioner before the Commission again made a point of the fact that Airmen, Ryan and Tyler are assigned to duty at the Air Force Academy.

They even know their presence had been requested at the hearing for cross-examination, the Air Force had failed to produce them as witnesses.

Counsel for the appellant contended that the refusal to produce these airmen as witnesses was arbitrary in the best methods of full supply and error.

Again on page 48, second paragraph, at the conclusion of Mrs. Dillon’s remarks on behalf of the Department of the Air Force counsel for the appellants initiated the summation of the case by again pointing out “that there’s been no opportunity to cross-examine the witnesses on whose statements the removal action have been taken and under the circumstances, the motives of these witnesses were unknown.”

I believe that should put to rest the question for the contention that there has been no request to the Air Force that these witnesses be produced for cross-examination.

It was the two affidavits by two of the accusing witnesses who were in fact Air Force military policemen upon which the removal was sustained and it was these witnesses whom counsel for the petitioner asked the Air Force to produce at the hearing.

John M. Harlan II:

Well, the trouble is this is ambiguous.

It says their presence was requested have been requested though — I suppose Mr. Pollak would say to that is that refers to the request previously on, I don’t remember that page is that have been made for the government to call him as part of the case.

David I. Shapiro:

No, sir.

John M. Harlan II:

What is the fact?

Did you asked the Air Force to bring these people (Voice Overlap) —

David I. Shapiro:

Yes sir, at the outset of the hearing right on page 44, the last sentence.

He — Mr. Andrew stated that in other words, the request which the appellant made for the appearance Ryan, Stevens and Tyler was rejected to which Mrs. Dillon required lineup affirmative and then he goes on to say that he wants them for cross-examination and he’s referring back to that same request on 47 and again on 48.

I think it’s quite clear from the record that he requested that these people be produced for cross, not for direct and the fact that they had their case in by affidavits would indicate that by failing to make an objection to the use of the affidavits, he wanted to use the affidavits for the purpose of cross.

Byron R. White:

But it is perfect [Inaudible]?

David I. Shapiro:

Yes sir, it was at the hearing itself.

Byron R. White:

That’s another kind of your [Inaudible]?

David I. Shapiro:

Yes sir, after the affidavits were read.

Tom C. Clark:

Did he ever try to contact the witnesses themselves?

David I. Shapiro:

No sir.

The record does not indicate that he did so.

We take the position however that the Air Force regulation 110-5 required to him to ask the Air Force to produce them because they’re precluded from appearing voluntarily if he would’ve asked them.

110 makes it — 110-5 required him to asked the Air Force to produce these men at the hearing.

He couldn’t just ask them to appear and they would appear because Air Force regulation 110-5 prohibits just that kind of procedure.

Now, that that regulation is set forth in our reply brief and I think it’s quite clear (Voice Overlap) —

Tom C. Clark:

What was your point about not being able to get on the base?

I thought that was the scope for these people.

David I. Shapiro:

I’m sorry sir.

Tom C. Clark:

What was your point about in not being able to get on the base?

Tom C. Clark:

You said he was restricted outside the base.

David I. Shapiro:

Yes sir, he was.

We take the point — we take the position, number one, that the reason he didn’t come in and personally appear when he first got the notification of charges because he couldn’t come on the base.

As a matter of fact, it appears from 18 to 19 of the record if he did show up on the base, there was an order out for his arrest so he answered the charge in writing.

I think that this arrest order would seriously have inhibited him from talking to the Air Force military policeman on the base who in fact ordered to arrest them and who in fact where the witnesses who were — the Air Force witnesses at — who had supplied the affidavits which were used in the Civil Service Commission hearing in Kansas and upon which –-

John M. Harlan II:

You two gentlemen seem to be and head on collision as I understand it.

Mr. Pollak says that a request had been made to the Air Force, these men did not appear, the government wouldn’t be here which is just exactly what I expect to Solicitor General’s office to say.

David I. Shapiro:

I hope so.

John M. Harlan II:

And you say on the contrary that there was a request made and you couldn’t get him?

David I. Shapiro:

That’s what the record stated (Voice Overlap) Your Honor, that’s the way you are —

John M. Harlan II:

– (Voice Overlap) read the whole record it sounds off [Inaudible] to me because I can’t imagine Mr. Pollak getting up in making the statement of that kind that he thought the record can be [Inaudible]

David I. Shapiro:

I think it’s quite clear and I would also like to point to page 85 at the record where they explain their failure to produce them to the Civil Service Commission and it said here this witnesses at furnish warrant statements concerning Mr. William’s behavior and it was considered unnecessary to bring them to the hearing, whether it was felt that any testimony they would give would be repetitious and it would’ve made William’s case even worse.

Potter Stewart:

Well, it doesn’t indicate here that Mr. Williams requested?

David I. Shapiro:

No sir but they point out there that the Air Force Academy and here is the important part, knowing the character and reputation of the airmen who were concerned in this matter, it is firmly believe that even had the officials of the academy deem it necessary for them to attend neither the counsel for Williams nor Mr. Williams could have discredited them upon cross-examination.

So, obviously the Air Force knew that the reason that they were being asked to produce these people was for the purpose to cross-examine.

I think when these portions of the record are read together, there can’t be really any question about the fact that a request was made and under refusal was also made and made explicit.

Earl Warren:

Mr. Pollak, can I ask you about Mr. Justice Harlan was correct here [Inaudible]

Mr. Shapiro, I don’t want you to re-argue matter but did he correctly understand you?

David I. Shapiro:

We certainly take the position referring to page 85 which has been cited that there was no desire or intent on the part of any official of the Air Force Academy to preclude the witnesses from appearing.

We are — we do not believe had a request be directed — directed to the witnesses or the Staff Judge Advocate that the Air Force would have declined to permit to go [Inaudible]

William J. Brennan, Jr.:

Well, Mr. Pollak —

Earl Warren:

For cross-examination?

David I. Shapiro:

For cross-examination, yes Your Honor.

Earl Warren:

And you believe they are obliged to do that?

David I. Shapiro:

I believe (Voice Overlap) — under the Air Force regulation the Air Force would have been obliged to permit them to come and to carry out the policy.

Earl Warren:

The Commission — Commission would have been obliged to see that they got their report for the hearing?

David I. Shapiro:

The Civil Service Commission examiner?

Earl Warren:

Yes.

David I. Shapiro:

Well, that —

Earl Warren:

Well, I don’t mean they could have compelled the Air Force but as an orderly proceeding against this man he would have been entitle to have — to be there —

David I. Shapiro:

I believe —

Earl Warren:

— for cross-examination of —

David I. Shapiro:

I believe that if he had said at the hearing that we have attempted to make arrangements to have these witnesses attend and we have been unsuccessful with the Air Force at the commissioner (Voice Overlap) —

William J. Brennan, Jr.:

Mr. Pollak, is that the key to your position that he would’ve had to approach those witnesses first —

David I. Shapiro:

Yes sir.

William J. Brennan, Jr.:

— before he could make any request to the Air Force for assistance and as this record show and I don’t because as I told you I haven’t read it, if this record shows that there was a request to the Air Force it was a request without first going to the witnesses to ask them as they be.

David I. Shapiro:

That is what the record show and you are —

William J. Brennan, Jr.:

And your position —

David I. Shapiro:

I don’t think we’re at [Inaudible] on that (Voice Overlap) there was no request to the witnesses.

William J. Brennan, Jr.:

Alright.

Now, there was no request to the witnesses?

David I. Shapiro:

That’s right.

William J. Brennan, Jr.:

Now, your point — your position as I understand that without a request for the witnesses first he has no case at all.

David I. Shapiro:

Our position is that we — I would not — I would like you to — Court understand that had he made a request first to the Air Force Staff Judge Advocate and said, “We want you to assist us in getting these witnesses.”

That the too raised the question but he did not do that.

He did not approach the witnesses, he did not approach Staff Judge Advocate which the Air Force regulations provide its Air Force regulations provide its Air Force policy for him to permit witnesses to testify.

The orderly procedure would have been to approach the witnesses and ask them to attend.

Potter Stewart:

Now, what do you think he did it by a way of request?

David I. Shapiro:

I think he came to the hearing and stated, “The witnesses aren’t here, I expect you to produce the witnesses.”

He said that to the Air Force personnel officer who was there and the Air Force personnel officer’s stated, “We didn’t think it was necessary to produce them as part of our case.”

Arthur J. Goldberg:

[Inaudible]

David I. Shapiro:

Well, that —

Arthur J. Goldberg:

[Inaudible] —

David I. Shapiro:

I —

Byron R. White:

And hadn’t you already said that that there wouldn’t be a case if that have happened?

David I. Shapiro:

Well, I certainly said that we think it would be very questionable whether the government would be here.

William J. Brennan, Jr.:

Now, I am [Inaudible]

David I. Shapiro:

We — the Air Force policy would have been to have the witnesses at the airway, had he made a request.

Arthur J. Goldberg:

[Inaudible]

David I. Shapiro:

They are members of the airway, that’s right.

Arthur J. Goldberg:

Or the witnesses have said [Inaudible], is that correct?

David I. Shapiro:

It could have done, yes.

William O. Douglas:

[Inaudible] some of our tax cases that goes within the government [Inaudible], I guess that’s your argument though?

David I. Shapiro:

My argument really is I think as I hope I stated that had he ask to witnesses to come, have they not come, had he told the Air Force they weren’t coming, the Air Force would’ve seen that they had come, that they would have come.

Earl Warren:

These two men that were at the air academy were really the complaining witnesses, were they not, against him?

David I. Shapiro:

There was a third person that he didn’t ask to come, there were three witnesses.

Earl Warren:

All three of them?

David I. Shapiro:

And he asked for two of them to come, the third just — he didn’t make a request that the third would be here.

Earl Warren:

Was he there?

David I. Shapiro:

The third one was at the Oklahoma base which was somewhat more distant.

He have been subsequently transferred.

William J. Brennan, Jr.:

Where was this hearing?

David I. Shapiro:

This hearing was in Denver, Regional 10 hearing.

May I say further in answer of the question whether they would have been ordered to come, should I take it that on the basis of grievance proceeding hearing where the Air Force would have ordered the witnesses to appear and he availed himself of that procedure that it would have take him the same steps in the order into appear at a civil service hearing had he sought that.

There’s no question on the regulation been to order to witnesses to appear at the grievance hearing which is an Air Force procedure.

Therefore, I can make no distinction then, I see no reason why it should have not order them to come, had he asked for them to come at a civil service hearing.

Thank you.