applying Pickering to government employee terminated because of the manner in which he taught foreign service officers
How later courts described this case
- applying Pickering to government employee terminated because of the manner in which he taught foreign service officers
Written by the judges who cited it.
The opinion
BAZELON, Chief Judge
(dissenting):
Several aspects of this case trouble me. First, if Williams v. Zuckert 1 is properly read, there is a substantial question whether the foreign students were sufficiently under the Air Force’s control that it was required, on demand, to make at least a good-faith effort to produce them for the Civil Service Commission hearing. I would consequently remand to the District Court for a determination of that question. Second, my reading of the record convinces me that appellant’s arguments to the Civil Service Commission were sufficient to raise his claims (a) that the standard proscribing his conduct was unconstitutionally vague, and (b) that the Commission did not fully consider whether appellant’s state- *1178 merits constituted sufficient grounds for discharge.
Williams v. Zuckert involved a regulation substantially similar to the one involved in this case. 2 The regulation was construed to mean that “the party desiring the presence of witnesses, either for direct examination or cross-examination [has] the initial burden of producing them.” 3 But if that party has
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 an attempt, 4
then the Agency, on demand, is required to make at least a good-faith effort to produce them. 5 It is by no means clear to me that appellant’s repeated demands on the Air Force were not sufficient “attempt to obtain [the students’] presence; ” 6 but even if they were not, appellant may well have been “justified in failing to make such an attempt.” The Civil Service Commission’s investigator was able to contact only one of the ten students directly, and could persuade none of them to make affidavits in the matter. 7 Appellant’s attorney could well have concluded, as he argued to the Commission, 8 that if the Commission could not persuade the students to testify, appellant alone would have little chance of success. If this is so, appellant has met his initial burden. Consequently, if the students were significantly under the Air Force’s control, it was required to make a good-faith attempt to produce them for the hearing. Since the record is deficient as to the precise status of the foreign students, I would remand for a determination of that question. 9
Furthermore, I cannot agree that appellant’s arguments at the administrative level foreclose him from raising here the *1179 questions of vagueness and whether his conduct constituted sufficient grounds for removal. The question of vagueness was strenuously urged before the Appeals Examiner 10 and before the Board of Appeals and Review. 11 Likewise, he continuously urged that his conduct would not constitute sufficient grounds for removal even if proved. 12
Since the majority affirms the District Court without deciding appellant's claims of vagueness and insufficient cause for removal, I refrain from discussion of these issues.
. Certiorari dismissed, 371 U.S. 531 , 83 S.Ct. 403 , 9 L.Ed.2d 486 , rehearing granted and ease remanded, 372 U.S. 765 , 83 S.Ct. 1102 , 10 L.Ed.2d 136 (1963).
. The regulation in 'Williams provided:
The Commission is not authorized to subpoena witnesses. The employee and his designated representative, and the employing agency, must make their own arrangements for the appearance of witnesses.
371 U.S. at 532 n. 3, 83 S.Ct., at 404.
The regulation in the present case provides :
Both parties are entitled to produce witnesses but as the Commission is not authorized to subpoena witnesses the parties are required to make their own arrangements for the ajjpearanco of witnesses.
5 C.F.R. § 772.305 (c)(1) (1969).
. 371 U.S. at 532 , 83 S.Ct., at 404 (emphasis added).
. 372 U.S. at 765 , 83 S.Ct., at 1102.
. In Williams, the desired witnesses were employees of the Air Force, and the Court assumed that the Air Force had the power to compel their attendance. See 372 U.S. at 765 , 83 S.Ct. 1102 . Here, the students were admittedly not “employees,” but appellant has raised a substantial claim that they were significantly under the Air Force’s control. I do not think that the Air Force’s responsibility should turn upon questions of ultimate power; rather, the standard should be similar to that set in Barber v. Page, 390 U.S. 719 , 88 S.Ct. 1318 , 20 L.Ed.2d 255 (1968), so tbat the Air Force would be required to make a good-faith effort to produce the students, even if it could not compel their attendance should they refuse.
. In its original opinion in Williams, the Supreme Court dismissed certiorari because
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 * * *.
371 U.S. at 532 , 83 S.Ct., at 404 (emphasis added). Unless the italicized language is to be regarded as surplusage, it must be assumed that at least in some circumstances a demand only on the employing agency is sufficient to meet the “initial burden” of production. Cf. 5 C.F.R. § 772.305 (c)(2) (1969), adopted 6 days after the hearing in this case. 31 Fed.Reg. 6569 (May 3, 1966).
. The examiner’s lack of success is detailed in note 3 of the majority opinion.
. See App. 167.
. Although it is unquestioned that the students were not under the “military jurisdiction” of the Air Force, that should not be the relevant standard. See note 5 supra.
. Appellant’s counsel argued to the Appeals Examiner:
We would wish to make it abundantly clear, however, that we are not taking the position that the Agency does not have the right to muzzle its employees. We do feel, however, that the regulating mnezle must be clear, concise, crisp and definitive, and not wispy and ethereal and subject to whatever interpretation may suit the whim of a particular administrator.
App. 116 (emphasis added).
. Appellant’s counsel argued to the Board of Appeals and Review that it would be impossible to write a regulation prescribing appellant’s conduct because
it would be impossible to define “controversial subjects” and it would be impossible to lay down any specific guidelines for instructors to follow. * * * As a result we having nothing but “policy” which is ill-defined and ethereal. * * *
App. 165.
. Appellant’s counsel argued to the Appeals Examiner: “Even if the charges were true (which we emphatically and vigorously deny), is this legal grounds for removal?” App. 107.
He argued to the Board of Appeals and Review: “Even assuming for the sake of discussion that [Mr. Goldwasser] made these remarks (which he vigorously denies), * * * what specifically has Mr. Goldwasser done?” App. 166.