
    406 F. 2d 1341
    KATHERINE CUNNINGHAM v. THE UNITED STATES
    [No. 433-60.
    Decided February 14, 1969]
    
      
      Robert H. Reiter, attorney of record, for plaintiff. Spauld-ing, Reiter & Rose, of counsel.
    
      Katherine H. Johnson, with whom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant.
    Before Cowee, Clhief Judge, Laeamoee, Duefee, Davis, ColliNS, SkeltoN, and Nichols, Judges.
    
   Per Curiam :

Plaintiff was employed as a mathematician at the Wright Air Development Center (WADC), Wright-Patterson Air Force Base, Ohio, from July 1956 until June 12, 1959, the effective date of her resignation. Shortly after submitting her resignation, and before its effective date, she requested that she be allowed to withdraw it. Air- Force regulations provided that a resignation could be withdrawn only by the mutual consent of the employee and the Air Force, unless it was due to coercion or undue influence. AF Manual 40-1, ch. E-2. The Air Force did not consent to withdrawal of the resignation. Plaintiff then requested a grievance hearing, alleging that her resignation had been the result of duress. She requested an opportunity to show that duress existed, and asked to be reinstated. The grievance committee met in her absence, and determined that she had not resigned under duress.

On November 10, 1960, plaintiff brought suit pro se in this court, seeking to recover salary and accumulated annual leave from the date of her resignation. She alleged in paragraph 1 that she “has been deprived of her employment * * * in the Air Eosearch and Development Command, United States Department of the Air Force, for reasons other than for the good of the service, by arbitrary and capricious acts committed in bad faith by the defendant * * * and by defendant’s violations of the Veterans Preference Act of June 27, 1944, as amended (5 U.S.C. Sect. 888); the Air Force Civilian Personnel Manual, AFM 40-1, Section E2.2; applicable Civil Service rules and regulations; and the due process clause of the Fifth Amendment to the Constitution of the United States.”

Defendant answered the (amended) petition on July 7, 1961, and on October 5,1961 filed a motion for judgment on the pleadings, based on plaintiff’s alleged failure to exhaust administrative remedies. Plaintiff answered defendant’s motion, and the issue was briefed and argued. On March 6, 1963, defendant’s motion for judgment on the pleadings was overruled by the court in an opinion reported at 161 Ct. Cl. 82. (Plaintiff had in the interim filed several motions for call and for orders to produce, which were denied without prejudice pending the decision on defendant’s dispositive motion.)

On September 24,1963, plaintiff moved for an order directing Wright-Patterson Air Force Base to produce for inspection and copying “any and all records or communications forwarded to Wright-Patterson Air Force Base, relative to the plaintiff, by the Veterans Administration”. This motion was denied “without prejudice to plaintiff’s right to file a motion showing how the documents sought are relevant to plaintiff’s claim or to a defense”. On October 9, 1963, plaintiff moved for an order directing the Chesapeake and Potomac Telephone Company to produce records that might show that plaintiff’s telephone had been monitored. This motion was denied because it was not directed to a party to the suit.

No further action was taken by either party until February 26,1965, when the commissioner requested that plaintiff explain the delay. He suggested that a possible procedure would be to file a motion for summary judgment, and warned that unless some action was taken soon, the claim could be dismissed for lack of prosecution. Plaintiff assured the commissioner that she intended to prosecute the case to a final conclusion. On March 24,1965, she again moved for an order directing Wright-Patterson Air Force Base to produce any records and communications concerning her that had been received from the Veterans Administration. Plaintiff’s motion was granted on April 1, 1965, but this order was suspended on April 14,1965, pending the outcome of a pretrial conference to be held the next month.

The commissioner’s memorandum of the pretrial, filed May 26, 1965, is as follows:

Various phases of this claim and possible procedures which might be utilized in moving the case to ultimate disposition by the court were freely discussed.
It was agreed that, among others, the following issues are involved:
1. Was plaintiff entitled to a hearing with respect to her request to be permitted to withdraw her resignation from federal service within a few hours after it was signed ?
2. Was plaintiff coerced, or by duress forced, to sign a resignation ?
3. Was it erroneous administrative procedure to deny plaintiff’s request for a hearing concerning her request to withdraw the resignation ?
Counsel for defendant agreed to furnish the commissioner all records from the Veterans Administration under certification with an accompanying statement to the effect that the documents furnished constitute the entire Veterans Administration record in the case in suit.
[End of page one of memorandum]
It was also agreed that other records, including medical records and diagnoses, previously denied plaintiff would be furnished to the commissioner en camera. Such records will be reviewed by the commissioner and a determination made by him concerning the right of plaintiff to see such records.
It was agreed that a motion for summary judgment will be filed by one of the parties within a reasonable time from this date. It is expected that the dispositive motion will be predicated upon alleged error in administrative procedure. Prior to the filing of such motion, it was agreed that plaintiff would move to amend the petition so that it will include the claim of error in the administrative procedure followed by defendant. Counsel for defendant is expected to respond to the proposed amendment of the petition. After such amendment has been effectuated the time will then be appropriate for the filing of a dispositive motion.
It should be borne in mind, however, as discussed during the pretrial conference, that the filing of a dispositive motion on the basis of error in administrative procedure as it was applied to plaintiff’s separation from federal service will preclude the necessity of a formal trial, the taking of testimony and the offering of exhibits into the record. By pursuing this summary course of action the claim should be disposed of in a much shorter period than would otherwise be required should a formal trial be held.
In view of the determinations arrived at at the pretrial conference with respect to the filing of a dispositive motion in this case, any further action with reference to plaintiff’s motion for discovery is deemed unnecessary.

Upon receiving the commissioner’s memorandum, the defendant protested that its counsel’s recollection was that it had agreed to furnish the commissioner, in camera, with the medical diagnoses of plaintiff, under certification, with an accompanying statement that they comprised all available Veterans Administration diagnoses. Defendant’s counsel did not remember having promised to furnish “all records” from the Veterans Administration, and requested that the last paragraph on page one of the memorandum be deleted. Over plaintiff’s protest, this paragraph was deleted on August 2, 1965.

On August 2,1965, the commissioner also sent the following memorandum to plaintiff:

The Pretrial Conference Memorandum * * * contains the following statement:
It was agreed that a motion for summary judgment will be filed by one of the parties within a reasonable time from this date. It is expected that the dispositive motion will be predicated upon alleged error in administrative procedure. Prior to the filing of such motion, it was agreed that plaintiff would move to amend the petition so that it will include the claim of error in the administrative procedure followed by defendant. Counsel for defendant is expected to respond to the proposed amendment of the petition. After such amendment has been effectuated the time will then be appropriate for the filing of a dispositive motion. * * *. [Emphasis in memo, of August 2,1965.]
More than 60 days have elapsed since that agreement was entered in the record. A progress report is desired concerning this matter.

Plaintiff’s response was to move to suspend proceedings for 90 days, to enable her to seek a writ of mandamus in the District Court. The motion was granted, but apparently her attempt to obtain the writ was unsuccessful.

On November 15, 1965 plaintiff filed in this court a motion for an order directing the Department of the Army and/or the Veterans Administration to produce “the total Eecord made by the Department of the Army” relative to her, and to designate that portion of her record which had been forwarded to WADC relative to her employment there during the period from 1955 to 1959. Simultaneously, plaintiff filed a motion for an order directing WADC to produce the information reviewed by the grievance committee.

On November 18, 1965, defendant moved to dismiss the petition for failure to prosecute, and requested that decisions on plaintiff’s motions of November 15 be deferred until defendant’s dispositive motion was decided. On the same day, plaintiff moved for leave to make a second amendment to her petition.

On November 19,1965, plaintiff’s motions to produce were allowed. Defendant requested review. On November 23, the commissioner allowed plaintiff’s second amendment to her petition. Defendant requested court review, under Eule 55 (a) (3), on the ground that the petition sounded in tort.

On June 6,1966, the court issued the following order:

This case comes before the court on defendant’s motion to dismiss the petition for failure to prosecute, filed November 18, 1965, defendant’s motion to dismiss the second amendment to petition, filed December 15, 1965, and defendant’s request for review pursuant to Eule 55(a) (3), filed November 24, 1965. Upon consideration thereof, together with the opposition thereto, and without oral argument,
IT IS ORDERED as follows:
(a) Defendant’s motion to dismiss the second amendment to the petition be and the same is granted and the second amendment to the petition is dismissed on the ground that the new causes of action asserted therein sound in tort and, on the basis of 28 U.S.C. § 1491 and DeNigris v. United States, 169 Ct. Cl. 619, 622 (1965), are outside the jurisdiction of this court.
(b) Defendant’s request to review the trial commissioner’s order to produce “the information reviewed by the grievance committee” be and the same is denied.
(c) Defendant’s request to review the trial commissioner’s order to produce “the total record made by the Department of the Army relative to the Plaintiff” and for designation of a portion of such record, be and the same is granted, the trial commissioner’s said order is reversed and plaintiff’s motion is denied.
(d) Defendant’s motion to dismiss the petition for failure to prosecute be and the same is denied, subject to renewal if plaintiff does not, within a reasonable time after compliance by defendant with the order to produce as described in paragraph (b), supra, take either or both of the following steps (1) amend her petition so as to allege a procedural error in the grievance proceedings and file a dispositive motion based on alleged error, and/or (2) proceed to trial on the claim in her petition that her resignation was induced by coercion, duress, or undue influence.

On June 28,1966, defendant furnished plaintiff with copies of the information reviewed by the grievance committee, which consisted of a total of 40 pages, numbered C-23 through C-62. Plaintiff was advised that there were no pages C-22 and C-38, and that pages C-l through C-21 of the grievance file consisted of correspondence dated after the date that the grievance committee had met. The material provided corresponded to the grievance committee’s description of the material it reviewed, as set forth in its decision. Plaintiff complained to defendant’s counsel about the absence of page C-38. The Justice Department sought an explanation from the Department of the Air Force. The Air Force’s Civilian Personnel Office sent a memorandum to the Justice Department stating that none of the copies of the grievance record contained a page C-22 or a page C-38, and that in its opinion the absence of these pages was the result of misnumbering. A copy of this memorandum was furnished to plaintiff.

No further steps in the litigation were taken until December 6, 1966, when defendant renewed its motion to dismiss for failure to prosecute. In its motion, defendant alleged that it had complied with the Order of the Court of June 6,1966 to produce the information reviewed by the grievance committee, and that under part (d) of the Order plaintiff therefore had the duty either to amend her petition or to proceed to trial on the claim that her resignation had been coerced. Plaintiff replied by alleging that defendant had not complied with the order to produce. Specifically, she contended that the missing pages contained her Veterans Administration records.

Shortly thereafter, plaintiff informed the court that she believed that her telephone had been monitored, and that a potential witness (General Wray, the commanding officer of WADC at the time of plaintiff’s employment there) had been barred from any contact with her.

On February 3,1967, the court denied defendant’s motion to dismiss for lack of prosecution, and ordered the case returned to the commissioner for trial on the following issues:

(1) whether defendant had fully responded to the commissioner’s Order to produce of November 19,1965; and the court’s Order to produce of June 6, 1966;
(2) whether plaintiff’s ’phone had been subjected to wire tap, monitoring or control; and
(3) whether defendant had engaged in any activity which would prevent General Wray from being a competent, available, and impartial witness.

A trial of the above issues was held on March 13 and 14, 1967, in Washington, D.C., plaintiff appearing fro se. In the light of all the evidence, it must be concluded that defendant has fully responded to the orders to produce (findings 1-4 infra); that plaintiff’s ’phone has not been monitored by defendant (findings 5-8, infra); and that defendant has engaged in no activity which would prevent General Wray from being a competent, available, and impartial witness (findings 9,10, infra).

The material that defendant provided in response to the Order to Produce did correspond to the grievance committee’s description of the material it reviewed, as set forth in its written decision. Moreover, plaintiff did not, at trial, in any way attempt to establish the existence or contents' of the allegedly missing page C-38. Her tidal effort was directed at the lack of certification of the documents that were produced. (They did not bear ribbon, seal, or signature.) However, defendant had sent plaintiff a fully certified statement from the Department of the Air Force which stated that it was believed that “the absence of pages C-22 and C-38 hi Grievance File No. 1 was a result of misnumbering. None of the copies of the record contain pages C-22 and C-38.” The question of certification ivas not raised before trial, and after the issue was raised, defendant offered to obtain it. There has been adequate certification.

Plaintiff offered only circumstantial evidence that her ’phone had been monitored. It is clear that a telephone repairman went to her apartment on August 15, 1966 to stop her ’phone from buzzing at the building’s switchboard. It is also clear that her ’phone was repaired on the 18th. The receptionist testified that one Galliot was the serviceman who came on the 15th, and that someone she could not remember came “a few days” later. Telephone Company records showed that one Struder came on the 15th and Galliot came on the 18th. A friend of plaintiff testified that he removed the cover of plaintiff’s ’phone several times during this period, and that on the 17th a blue lead line was taped off, but on the 18th (after the ’phone had been repaired) the line was connected to its terminal. It is unclear from the testimony whether the line had been attached to its terminal on the 16th. The above incidents and the occurrences related in finding 7 are inadequate to prove that plaintiff’s ’phone had been monitored, and certainly inadequate proof that any monitoring was done by defendant.

A friend of plaintiff’s had several conversations with General Wray concerning plaintiff’s desire to discuss the circumstances of her resignation. General Wray contacted the Air Force Judge Advocate General, who informed him that he could not have such a discussion with plaintiff unless a representative of the Department of Justice was present, but that if such a representative was present, he was free to talk to anyone. Nothing was said to him about being a witness. General Wray testified that he knew of no activity on either side that could possibly prevent him from being a competent, available witness. It should be made clear to General Wray that, if he wishes, he can talk to plaintiff or her counsel as a possible or potential witness, in the absence of a representative of the Department of Justice, without violating the so-called “Hebert Law,” 18 U.S.C. §§ 203, 205, 206, 283 (1964).

Since it is found that defendant has complied with the duty to produce set forth in paragraph (b) of the court’s Order of June 6, 1966, it is now incumbent upon plaintiff, under paragraph (d) of the same Order, (1) to proceed to trial on her claim that her resignation was induced by coercion, duress, or undue influence, or (2) to allege a procedural error in the grievance proceedings, and file a dispositive motion based on such alleged error. In light of the fact that this case has been pending here for seven and a half years, plaintiff may now have no more than 45 days in which to move for trial or to file such a dispositive motion. There should be no further delay.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner C. Murray Bernhardt, and the briefs and arguments of counsel, makes findings of fact as follows:

FIRST ISSUE: COMPLIANCE WITH THE ORDER TO PRODUCE

1. Tbe material provided corresponded to the grievance committee’s description of the material it reviewed, as set forth in its decision of June 17, 1959:

The committee has reviewed the grievance letter dated 6 June and related correspondence dating back to 13 February 1959, the date of decision of a previous grievance. Statements of the supervisors, Mr. Leon M. Warshawsky dated 20 May 1959 and the Placement and Employee Relations Advisor, Miss Madonna M. Fleck dated 11 June 1959 also have been reviewed.

2. Although when plaintiff first complained of the lack of page C-38 she contended that the grievance committee had considered her Army record, and apparently stated that she had witnesses to prove it, at the trial she did not produce any witness to support that contention, nor did she call any witnesses to testify concerning the existence or contents of page C-38. Plaintiff herself testified that she “knows” what page C-38 “has to be”; that she thinks the CIA prepared it; and that she has conversed with people who claim to know about page C-38 but cannot give their names “because it will jeopardize their present position”.

3. Most of plaintiff’s trial on this issue was directed towards the certification of the documents that were produced. Plaintiff complained that the documents did not bear a blue ribbon, gold seal, or official signature. However, defendant did produce a fully certified statement from the Department of the Air Force, which said that “our Civilian Personnel Office is of the opinion that the absence of pages C-22 and C-38 in Grievance File No. 1 was a result of mis-numbering. None of the copies of the record contain pages C-22 and C-38.” The question of certification was not raised before the trial, and after the issue was raised, defendant offered to obtain certification. There has been adequate certification.

4. In the light of all the evidence, it must be concluded that defendant has fully responded to the above-mentioned orders to produce.

SECOND ISSUE: TELEPHONE MONITORING

5. (a) On Monday, August 15, 1986, the receptionist at plaintiff’s apartment building called the Chesapeake and Potomac Telephone Company to correct the constant buzzing at the switchboard from plaintiff’s apartment. A repairman was sent oyer and the receptionist accompanied him to plaintiff’s apartment, where he disconnected a wire, which stopped the buzzing at the switchboard. This took only a few minutes. The receptionist noticed that plaintiff’s ’phone was broken.

(b) “A few days” later, according to the receptionist’s testimony, another ’phone repairman came to the reception desk with a note to pick up the key to plaintiff’s apartment. This note was not signed by plaintiff. The receptionist recognized the repairman, having seen him in the building before. She gave him the key and he went to plaintiff’s apartment unescorted, which is the customary procedure when a resident leaves a note that the key is to be given. The repairman stayed about 10 or 15 minutes. These were the only two repairmen that the receptionist knew of.

(c) On August 18, plaintiff’s ‘phone was repaired.

(d) The manager of the ‘phone company’s Alexandria business office testified that plant records showed that repairmen went to plaintiff’s apartment on the 15th and 18th; there was no company record that anyone from the company went to plaintiff’s apartment on the 16th or 17th.

(e) The receptionist testified that the repairman she accompanied to plaintiff’s apartment on the 15th was Mr. Gal-liot, whom she recognized in the courtroom. However, company records show that the repairman who went on the 15th was one John Struder (who had been included on plaintiff’s original witness list, but was not a witness), and that Galliot went on the 18th. Galliot could not recall going to plaintiff’s apartment, but he had made over 2,000 calls in that building. He did testify that he had no recollection of using a resident’s personal key from a mailbox without written permission of the tenant.

(f) A basic disagreement is whether there were two or three visits to plaintiff’s apartment, i.e., whether the visit fcbat the receptionist described as occurring “a few days” after the 15th was the visit on the 18th (as defendant contends), or whether it occurred between the 15th and the 18th (as plaintiff contends).

6. (a) A friend of plaintiff, Captain Blaisdell (U.S.N., Ret.), testified that he removed the broken cover from plaintiff’s ’phone on August 16 and noticed that a blue lead line was attached to its terminal; that on August 17 he again removed the broken cover and discovered that the blue lead line was detached from its terminal and taped off; and that on August 18, after plaintiff’s ’phone had been repaired, he again removed the cover and found that the blue lead line was again attached to its terminal.

(b) An executive of the Chesapeake and Potomac Telephone Company testified that cords and wires in a telephone are standardized to perform a number of services, and there may be unused leads on any particular ’phone. Such leads may terminate on dummy connecting blocks or be taped back or cut off. He testified further that there are some 75 different kinds of telephone sets in use in the area, and that one would have to know the specific wiring arrangement of the set in question in order to determine the purpose of any given wire.

7. (a) During the afternoon of the 16th, Captain Blaisdell dialed plaintiff’s number and received a busy signal. He notified the operator of this, and was informed that there was trouble on the line which would be reported. On the 17th he again dialed plaintiff’s number and received a clear signal, although plaintiff’s ’phone was still broken. He then went to plaintiff’s apartment, and when he picked up the receiver to plaintiff’s ’phone, there was no dial tone. It was at this time that he removed the case and found the wire taped off. He applied the wire to its terminal and could then faintly hear what he identified as the central office.

(b) On various occasions, Captain Blaisdell found that he could remove the receiver for very long periods and there would be no warning signal from the central exchange.

(c) During the period from October 1965 to December 1966, while using plaintiff’s ’phone, Captain Blaisdell would notice from time to time wbat sounded like “a rotating disc in wbat appeared to be a timer attachment”.

(d) In the summer of 1966 plaintiff bad ’phoned someone in Eochester, New York, by direct area dialing, and was conversing when the connection was broken with a loud noise. Plaintiff re-dialed the number, using the area code, and resumed the conversation; after a time, the connection was again broken in the same manner. About half an hour after the conversation was broken the second time, plaintiff called the operator and reported that she had had some trouble on a long distance call; before she could tell the operator where she had been calling, the operator remarked: “Yes, you were calling Eochester, New York, and there was trouble on the line.”

8. Plaintiff has failed to prove that her ’phone was subjected to monitoring at all, and has certainly failed to prove that the defendant monitored her ’phone.

THIED ISSUE: INTEEFEEENCE WITH A WITNESS

9. Captain Blaisdell had several telephone conversations with. General Wray, concerning plaintiff’s desire to discuss the circumstances of her resignation from WADC. (General Wray had been the commanding officer of WADC at the time of plaintiff’s resignation.) General Wray of his own volition contacted the Air Force Judge Advocate General, who informed him that he could not have a conference with plaintiff, or 'a representative of plaintiff, unless a representative of the Department of Justice was present. General Wray’s impression was that it was the “Hebert Law” (18 U.S.C. §§ 203, 205, 206, 283 (1964)) that required this. (It is unclear whether it was the Judge Advocate General who gave him this impression.) In any event, General Wray made it clear that he was told that he was free to talk to anyone involved in this matter, provided that a representative of the Department of Justice was present. Nothing was said to him about being a witness, and no one from the Department of Justice ever contacted him about this case. He testified that he knew of no activity on either side that could possibly prevent him from being a competent, available witness. Moreover, although called by defendant, he willingly took the stand at plaintiff’s request for direct examination as part of plaintiff’s case in chief on this issue.

10. Defendant has engaged in no activity which would prevent General Wray from being a competent, available, and impartial witness.

CONCLUSION 0E LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that (a) the defendant has fully complied with the Order to Produce of June 6,1966; (b) it has not been established that plaintiff’s telephone has been subjected to wire tap, monitoring, or control by the defendant or by anyone; and (c) defendant has not engaged in any activity which would prevent General Wray from being a competent, available and impartial witness.

IT IS THEREFORE ORDERED the case be returned to the commissioner for further proceedings for the purpose of (a) entertaining a dispositive motion by the plaintiff on the grounds of procedural error in the grievance proceedings or (b) to conduct a trial on the plaintiff’s claim that her resignation was induced by coercion, duress, or undue influence. Plaintiff has 45 days within which to move for trial or to file a dispositive motion. 
      
      This opinion is based on the opinion prepared by Trial Commissioner C. Murray Bernhardt, with deletions and modifications.
     
      
       From July 19, 1967 to January 23, 1968, plaintiff retained counsel who assisted in the presentation of the requested findings of fact. This is the only period in which plaintiff has not appeared pro se, except for the briefing and argument to the court, after the commissioner’s report, which was handled by retained counsel.
     