176 Ct. Cl. 1372 | Ct. Cl. | 1966
Plaintiff, a veteran’s preference eligible, seeks to recover back pay alleging a procedurally defective discharge from his GS-11 position, as a contract specialist, with the New York Procurement District, Department of the Army. That discharge was predicated upon allegations that plaintiff had solicited and accepted gifts, favors, gratuities, and entertainment from a Government contractor with whom he had official relations. The parties have filed cross-motions for summary judgment, and the case is ready for decision thereon.
In responding to defendant’s motion for summary judgment and countermoving for summary judgment, the plaintiff states that he “accepts defendant’s statement of facts in its motion for summary judgment, except to the extent modified by conflicting statements in plaintiff’s petition herein.” However, plaintiff does not advise us, nor does our examination of his petition disclose, just what “conflicting statements” in his petition are deemed material. Bather, in his brief plaintiff devotes his entire argument to the contention that his
With one exception, the procedures followed by the Army in removing plaintiff from his position, effective January 27, 1963, were properly conducted under appropriate regulations.
In the course of the hearing, plaintiff testified at length on his own behalf, and two witnesses whom plaintiff’s counsel had asked the Army to produce were also present and testified. In addition, plaintiff’s attorney introduced into evidence a number of exhibits consisting of performance ratings and letters of recommendation from plaintiff’s associates and fellow employees. So far as the record discloses, at no time has the plaintiff, or his attorney, made any effort to obtain the testimony of the FBI agents or any of the contractor’s personnel, nor has plaintiff or his attorney ever requested the Civil Service Commission, or the Army, to make these persons available for examination.
If plaintiff really wanted to cross-examine the affiants (which could be the only reason for their presence), he could have requested a continuance so he could produce the witnesses or have them produced by the agency. He did neither, and it seems that what plaintiff really wanted was the “exception” rather than the evidence cross-examination might have provided. Thus, we think plaintiff had a duty to then and there demand the production of the witnesses. He did not, and consequently we cannot now hold that his procedural rights have been violated. [P- H4]
The other basic complaint of plaintiff here appears to be the contention that his constitutional rights were violated when the FBI agents monitored his telephone conversations without his consent or knowledge. However, we are of the opinion that this contention is disposed of adversely to plaintiff by the case of Rathbun v. United States, 355 U.S. 107 (1957) where the Supreme Court held that each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another person to overhear the conversation.
Plaintiff’s cross-motion for summary judgment and his brief are premised solely on the contention of procedural error of which we can find none on this record. He does suggest in the opening sentence of his brief that there exist “numerous and substantial issues of material facts as set
Accordingly, defendant’s motion for summary judgment is granted and plaintiff’s cross-motion is denied. Plaintiff’s petition is dismissed.
The exception was a procedural defect in the original notice of proposed suspension. However, this procedural defect was corrected by the Civil Service Commission’s decision which, while sustaining the removal, canceled the suspension and ordered that plaintiff be retroactively restored to active duty up to the date of his removal. The fact that plaintiff’s earlier suspension was found to be pi'ocedurally defective does not affect the validity of his subsequent removal. Holtzman v. United States, 143 Ct. Cl. 108, 163 F. Supp. 863 (1968).