Duffy, Knoch and Kiley, Circuit Judges. Kiley, Circuit Judge (dissenting).
Plaintiff is a former veterans' preference eligible civilian employee of the United States Air Force.*fn1 The defendants are, respectively, the Secretary of the Air Force and the Chairman of the United States Civil Service Commission. Plaintiff seeks to obtain reinstatement as an employee of the United States, more particularly, he has requested a judicial review of his removal from his former position as a tractor-trailer operator with the 64th Troop Carrier Squadron, O'Hare International Airport, Chicago, Illinois.
The District Court denied plaintiff's motion for a summary judgment but granted the defendants' motion for summary judgment. This appeal followed, plaintiff claiming the District Court should have ordered his reinstatement with pay.
By letter of December 8, 1961, plaintiff was notified that it was proposed to remove him from his position for violation of safety regulations, to-wit: driving an aircraft refueling tractor-trailer unit under the wing of a C-119 aircraft while the engines of the aircraft were running and the aircraft was moving. The names of two witnesses were given. The letter stated "It is proposed to remove you from your position with the Air Force not earlier than 30 calendar days after your receipt of this letter for a second major violation of safety practice and regulations." An earlier offense in August 1959, resulting in a 10-day suspension, was also described in the letter. The plaintiff was informed that he could answer the charges personally and/or in writing and could submit affidavits.
Brown submitted a written reply on December 21, 1961, in which he denied the charges. By letter dated January 5, 1962, Brown was notified he would be removed on January 12, 1962, and that he would have ten days in which to appeal under the Air Force Grievance Procedure, or he could appeal to the United States Civil Service Commission, as provided for in Section 14 of the Veterans' Preference Act, 5 U.S.C. § 863.
A timely appeal was taken under the Air Force Grievance Procedure, but Brown then withdrew that appeal and, instead, appealed his discharge to the United States Civil Service Commission.*fn2
Prior to the hearing by the Civil Service Commission, plaintiff wrote a letter to the Commission's Regional Director requesting that five named individuals be present at the hearing so that they could be cross-examined. Among these were Messrs. Czub and Ten Eyck who had signed statements that they had witnessed plaintiff's violation of the safety regulations. These persons were not present at the hearing.
On August 15, 1962, the Commission rendered a decision holding that none of the plaintiff's procedural rights were violated, that his removal from government employment was warranted, and that the removal was effected for the purpose of promoting efficiency of the service.*fn3
Plaintiff appealed to the Civil Service Commission Board of Appeals and Review which affirmed the decision of the Chicago Regional Office. Plaintiff then filed his complaint in the instant case seeking a judicial review of the administrative action and seeking an order reinstating him to his previous employment.
After the filing of the complaint herein, defendants, while in no way conceding that plaintiff's procedural rights had been violated, nevertheless offered the plaintiff a hearing de novo before the Civil Service Commission at which the Air Force would use every reasonable effort to produce the witnesses requested by plaintiff. Defendants moved the Court to remand the case to the Commission. Neither the Civil Service Commission nor the Air Force has the power of subpoena.*fn4 Plaintiff rejected the offer and the District Court denied defendants' motion to remand the case.
During the oral argument before this Court, defendants again renewed the offer and again the plaintiff, through his attorney, refused to accept.
Plaintiff's claim rests on two grounds -- 1) the administrative finding was unsupported by substantial evidence, and 2) plaintiff's procedural rights were violated because the Air Force did not produce at the administrative hearing, certain persons whom plaintiff desired to cross-examine.
We first consider the scope of review which a court has in an employee removal case such as this. "Judicial review of a dismissal from federal employment, a matter of executive agency discretion, is limited to a determination of whether the required procedural steps have been ...