Williams v. Zuckert (371 U.S. 531)/Opinion of the Court

United States Supreme Court

371 U.S. 531

Williams  v.  Zuckert

 Argued: Dec. 13, 1962. --- Decided: Jan 14, 1963

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 1944 ^[1] and the implementing regulations ^[2] 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 meaning 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.

Notes

1. 58 Stat. 390, as amended, 5 U.S.C. § 863, 5 U.S.C.A. § 863.
2. 5 CFR, Part 22.
3. 5 CFR § 22.607, titled 'Appearance of witnesses,' provides:
4. 5 CFR § 22.603 provides:

'Opportunity will be afforded for the introduction of evidence (including testimony and statements by the employee and his designated representative and witnesses and by representatives of the agency and its witnesses) and for the cross-examination of witnesses.'