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August 13, 1974

James W. HENLEY, Jr., Plaintiff,
UNITED STATES of America Robert E. Hampton, et al., Defendants

Herman, District Judge.

The opinion of the court was delivered by: HERMAN

HERMAN, District Judge.

 The plaintiff is a former criminal investigator for the Bureau of Alcohol, Tobacco and Firearms (ATF) of the Internal Revenue Service, now a bureau of the United States Treasury. The essence of the action is an attempt to secure his reinstatement to that position, a position from which he was dismissed pursuant to the Lloyd-LaFollette Act, 5 U.S.C.A. § 7501.

 The plaintiff was dismissed on May 19, 1972, to "promote the efficiency of the service," and so remains to this date. *fn1" That same date the plaintiff filed a complaint (Civil No. 72-265), and thereafter, on May 23, 1972, moved this court for a preliminary injunction requiring immediate reinstatement. The court conducted a hearing and on June 12, 1972 denied the motion. We concluded this court to be without authority to intervene prior to exhaustion of established administrative procedure. Subsequently, the Supreme Court likewise concluded that a district court is indeed without such authority. Sampson v. Murray, 415 U.S. 61, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974).

 Following denial of the injunctive relief, the plaintiff returned to the machinery of the administrative procedure act. The internal appeals procedure followed by the plaintiff was unsuccessful. *fn2" On June 25, 1973 the plaintiff filed the instant complaint before this court seeking judicial review of the administrative action. The issue was joined by cross motions for summary judgment.

 It is undisputed that James W. Henley, Jr. was removed, without pay, prior to any hearing.

 The plaintiff raised the following points in criticism of the administrative procedure:

a.) No pre-dismissal hearing was afforded him as a non-probationary employee. *fn3"
b.) The post-dismissal hearing was a denial of due process in that it did not provide for confrontation and cross-examination of the plaintiff's accusers.
c.) The findings of fact of the hearing examiner were arbitrary, capricious and not supported by substantial evidence.

 Although the court heard argument on the issues some time ago, the parties agreed that this court should withhold its decision pending the outcome of Kennedy v. Sanchez, 349 F. Supp. 863 (N.D.Ill.1972), cert. granted, 411 U.S. 915, 93 S. Ct. 1549, 36 L. Ed. 2d 306 (1973). Recently the Supreme Court reversed the three-judge court sub nom., Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974).

 The Supreme Court in Kennedy rejected the attack on the Administrative Procedure Act insofar as it denies pre-dismissal hearings.

 The Court emphasized that in a motion for summary judgment the district court must accept as true "the material particulars of . . . [the employee's] conduct which were set forth in the notification of proposed adverse action . . . ." 416 U.S., at 140, 94 S. Ct., at 1637, 40 L. Ed. 2d, at 25. Taking as true the charges as outlined in the Appendix to this memorandum, we conclude that the instant case is of the type which in Kennedy permits dismissal prior to a hearing. Id., at 160, 94 S. Ct., at 1647, 40 L. Ed., at 37.

 The plaintiff has argued in a supplemental memorandum that we should not embrace Kennedy too tightly since it involves a plurality of only four Justices. Indeed, it is more difficult to find definitive rulings of law in such a decision. Nevertheless, the Court was sufficiently in agreement to reverse the three-judge court on this point as well as on a First Amendment question not relevant to the instant case. Therefore, the court is of the opinion that the plaintiff's first issue requires no further discussion and must fail.

 The plaintiff next claims that the procedures employed in his post-termination hearing were constitutionally defective, in violation of the Sixth Amendment. *fn4" The primary objection to the hearing was the plaintiff's inability to confront or cross-examine the witnesses against him. The government's response consists of seeking refuge behind 5 C.F.R. § 722.305(c) which undeniably prohibits the Civil Service Commission from issuing subpoenas to compel the attendance of witnesses. *fn5" The effect of that lack of subpoena power was evident in the array of evidence. The government presented only two live witnesses, both employees of the IRS and neither of whom had any direct personal knowledge of the charges against the plaintiff. Pursuant to 5 C.F.R. § 772.305(c)(2), agency employees are made available for testimony. The remainder of the government's evidence, discussed infra, consisted in part of unsworn and even unsigned statements. The plaintiff had no means to compel testimony on his behalf. Consequently, none of the persons who gave statements could be compelled to submit to cross-examination.

 Neither side has questioned this court's authority to pass on the constitutionality of 5 C.F.R. 772.305. Ordinarily a single judge cannot declare a federal statute unconstitutional. 28 U.S.C.A. § 2282. However, a regulation adopted pursuant to the Administrative Procedure Act, 5 U.S.C.A. § 701 et seq., is subject to scrutiny by a single judge. Holley v. United States, 352 F. Supp. 175 (S.D.Ohio), aff'd without opinion, 477 F.2d 600 (6th Cir. 1973). Furthermore, a three-judge court is not required where a federal statutory scheme is merely construed and not sought to be enjoined. Harlan v. Pa. R.R., 180 F. Supp. 725 (W.D.Pa.1960).

 Our limited role, then, is to determine whether the plaintiff was unconstitutionally denied the option of cross-examining and confronting witnesses by virtue of his inability to issue subpoenas.

 In Goldberg v. Kelly, supra, the Court declared that prior to termination of welfare benefits fundamental due process must be satisfied:

"'The fundamental requisite of due process of law is the opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, 394, 34 S. Ct. 779, 58 L. Ed. 1363, 1369 (1914). The hearing must be 'at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62, 66 (1965). In the present context these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally. These rights are important in cases . . . where recipients have challenged proposed terminations as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases." 397 U.S., at 267-268, 90 S. Ct., at 1020, 25 L. Ed. 2d, at 299.

 Of the preceding, the plaintiff was afforded all but the effective right to confront and cross-examine the witnesses against him. We recognize that this circuit, in a decision rendered without the aid of Goldberg stated:

"Plaintiff next contends that 5 C.F.R. § 722.305(c)(1), which specifically denies the Civil Service Commission the authority to subpoena witnesses in connection with a hearing in these cases, is ultra vires and violates due process. . . . 'There is nothing unfair in such a procedure' [citing] Cohen v. Ryder [258 F. Supp. 693 (E.L.Pa.), aff'd on opinion below, 373 F.2d 530 (3d Cir. 1967)]. No case has been cited holding that this lack of subpoena power denies due process, and we have found none." DeLong v. Hampton, 422 F.2d 21, 24-25 (3d Cir. 1970).

 We can only surmise whether this circuit would have ruled differently had it enjoyed the guidance of Goldberg. This court does not view Goldberg and DeLong as contradictory holdings.

 DeLong should not be misconstrued to be approval for an agency to hide behind 5 C.F.R. § 722.305(c)(1). Cohen v. Ryder (referred to in DeLong) and DeLong itself, presented factually distinguishable situations in which the witnesses sought were agency employees that could have been produced pursuant to 5 C.F.R. § 722.305(c)(2). This court is inclined to agree with DeLong that a mere absence of an agency subpoena power does not per se constitute a violation of due process.

 We are not prepared to rule that the absence of subpoena power is per se a due process violation, because to so rule would permit an employee to block his removal without regard to the quality of the case against him.

 It is entirely possible that an agency without subpoena powers could secure the voluntary appearance of witnesses whose testimony would be sufficient to establish a substantial case. Moreover, we note that the plaintiff has not claimed that the lack of subpoena power prevented him from obtaining witnesses favorable to his position. The record establishes the contrary.

 The plaintiff has not questioned that if the charges were true and adequately proved they would justify his dismissal. Indeed, the punishment selected is beyond our scope of review. Jaeger v. Stephens, 346 F. Supp. 1217, 1226 (D.Colo.1971). The court further notes that although Kennedy, supra, requires us to accept the charges against the plaintiff as true for purposes of the motion for summary judgment, such a procedural expedient does not extend to our review of the sufficiency of administrative findings of fact.

 We are mandated to review the Commission's findings to determine if they are supported by "substantial evidence" or if they are arbitrary or capricious. Charlton v. United States, 412 F.2d 390, 393 (3d Cir. 1969). Substantial is more than a mere scintilla and must do more than create a suspicion of the existence of the fact sought to be established. N.L.R.B. v. Arkansas Grain Corp., 392 F.2d 161 (8th Cir. 1968). The evidence must afford a "substantial basis of fact from which the fact in issue can be reasonably inferred . . . and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." N.L.R.B. v. Columbian Enameling & Stamping Co., Inc., 306 U.S. 292, 299-300, 59 S. Ct. 501, 505, 83 L. Ed. 660, 665 (1939); Watson v. Gulf Stevedore Corp., 400 F.2d 649 (5th Cir. 1968), cert. denied, Young & Co. v. Shea, 394 U.S. 976, 89 S. Ct. 1471, 22 L. Ed. 2d 755 (1969). Moreover, it is not necessary that the evidence be unequivocal, but merely that it reasonably support the agency findings. Lamont v. Finch, 315 F. Supp. 59 (W.D.Pa.1970); Joyce v. McCrane, 320 F. Supp. 1284 (D.N.J.1970).

 The government (referred to throughout the hearing as "Management") called two witnesses to the stand. First was Paul Hankins, a Special Agent of the ATF. His testimony consisted of giving his opinion about the proper use of a service weapon in conjunction with Reason 1, Specifications 1 and 2. The plaintiff was eventually cleared of the charge by the examiner. Hankins was also the testimonial sponsor for an unsworn letter allegedly sent to him by Evelyn Walters. *fn6" He also testified as to the contents of time records submitted by the plaintiff. The plaintiff never denied that he prepared the records. Hankins' testimony showed no evidence of personal knowledge of the plaintiff's activities with regard to the charges.

 The second and final government witness was Francis Bond, an Internal Security Inspector for the IRS. Bond's testimony consisted of explaining the absence of Orie Peterson, the Inspector who had conducted the investigation of the plaintiff. Peterson was apparently disabled by two heart attacks and was unable to testify. Inspector Bond further testified that he had questioned Miss Walters and a Stephen Spong, an officer of the Lemoyne Police, and that they reiterated the truth of statements given to Inspector Peterson who had originally taken the statements. Inspector Bond also testified that he was told by Miss Walters that she felt that Dorothy Coberly was a truthful person. Mrs. Coberly had also provided an unsworn statement. Inspector Bond's testimony revealed no personal knowledge whatever about the charges against the plaintiff, nor the circumstances of Inspector Peterson's investigation.

(a) Numerous photocopies of time and worksheets submitted by Mr. Henley, detailing his activities on various days.
(b) A typewritten statement *fn8" bearing the handwritten name Steven Spong, described as an officer of the Wormleysburg Police. In part, his statement accused the plaintiff of using foul and abusive language in Spong's presence when Officer Spong stopped Henley for running a red light. The statement also charges that the plaintiff threatened to arrest Spong.
(c) A typewritten statement, almost identical to the preceding, bearing the written name of John R. Hurley of the Wormleysburg Police. The statement corroborated Spong's. However, the second policeman arrived on the scene later than Spong. He was able to verify Spong's version of Henley's conduct. *fn9"
(d) An unsworn, handwritten statement bearing the signature of Evelyn E. Walters, in a handwriting distinctly different from the text. The statement accused Henley of general conduct on unspecified dates including "bothering" Miss Walters, and of being a person inclined to excessive use of alcohol. She also accused Henley of "flashing" his badge and gun to strangers and being pushy about his government status. The statement did not specify any dates for the incidents. On another occasion she asserted that Henley got drunk at a club in York, no date specified, and that she learned of the incident from an unnamed friend. She also specified the time, date and name of a female friend (Dorothy Coberly) who called her to complain that Henley was with her (see, Item (h) infra).
(e) A typed report submitted, without any signatures whatever, stating that one Myrtle Arnold saw the plaintiff at a baseball game at a time and place which conflicted with the plaintiff's work records. The typed statement apparently was orally given to Inspector Peterson by Mrs. Arnold. The two-paragraph report contains the assertion that Mrs. Arnold knew Henley. It also contains the observation that she "refused to elaborate further" and declined to appear. The report does not explain the absence of a signed statement from Mrs. Arnold. The "statement" was intended to prove that Henley had falsified work timesheets which showed him elsewhere than the baseball game.
(f) A second unsworn, handwritten statement bearing the signature of Evelyn E. Walters, in a handwriting distinctly different from the text. In the second statement Miss Walters stated that "sometime in May 1971" a government car operated by Henley was towed away from a No Parking zone. She alleges that Henley had spent the night with her and during the following morning the car had been towed away. She alleged that at noon she drove Henley to the garage to retrieve the car. Henley's allegedly improper conduct was not the parking violation or his visit to Miss Walter's home, but rather using a government vehicle to go to and from a personal, nongovernmental meeting.
(g) An unsigned, typewritten report apparently prepared by Inspector Peterson which quotes Jerry Meals as saying that he assisted in towing a government vehicle from the above-noted location and that later a man picked up the car. Meals could not recall the man's name but he did identify himself as a federal agent. The agent was in the company of a blonde lady in a yellow Cadillac. (Henley at no time denied that his car was towed from a No Parking zone). The report does not explain the absence of a signature by Meals. His statement was apparently intended to corroborate Miss Walter's version of the auto towing incident.
(h) An unsworn, handwritten statement with an apparent signature of Dorothy Coberly, in a distinctly different handwriting than the text. Her statement confirmed that she had indeed called Miss Walters to say that Henley was with her at a bar. The time Mrs. Coberly claimed to have been with Henley was in direct conflict with a work timesheet which showed him to have been conducting an investigation.
(i) An unsworn, handwritten statement apparently signed by one Marlin C. Smith, the Proprietor of a gun shop, that he was not contacted by Henley on the date which Henley claimed he had interviewed Smith. A similar unsworn statement was signed by Robert T. Burnett. Burnett's statement could not pinpoint when he was contacted by an IRS agent, nor the agent's name.

 Of the preceding statements only those of Spong and Hurley were sworn to. No explanation appears in the record for the lack of an oath on the other statements except for that of Mrs. Arnold who apparently refused even to sign.

 The balance of the statements, mostly unsworn, were submitted on behalf of Henley. However, each one of the persons who made a statement on the plaintiff's behalf also testified under oath, in person, at Henley's hearing before the examiner.

 The agency's inability to compel a necessary witness's attendance and testimony regarding a material allegation is not a license to rely on secondary and insubstantial evidence. In other words, the lack of subpoena power cannot be read as lowering the standard of proof imposed on an administrative proceeding. If an agency cannot establish ...

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