The opinion of the court was delivered by: GOURLEY
This action for injunctive relief against various federal agencies and officials of said agencies is brought by the director of the Pittsburgh office of the Federal Housing Administration who had been notified that his services were to be terminated December 6, 1963, on the basis of a disability retirement. On the presentment of the petition, the Court granted a temporary restraining order and, after a full and complete hearing, consideration of the complete record which has been stipulated by counsel and the evaluation of arguments of counsel, it is the considered judgment of the Court that the plaintiff, Sidney E. Rosenblum, is not entitled to a preliminary injunction restraining his removal as Director of the Pittsburgh Insuring Office of the Federal Housing Administration (hereinafter referred to as FHA).
Furthermore, substantial evidence appears in the record to support the conclusion of the Civil Service Commission, reached after consideration of the duties of the plaintiff, his impaired eyesight and his representations to the Commission, that he was totally disabled for useful and efficient service in his position.
Plaintiff bases his request for a preliminary injunction, in essence, on the refusal of the Civil Service Commission (hereinafter referred to as CSC or the Commission) to give him a judicial or quasi-judicial hearing with the right, inter alia, to introduce evidence, cross-examine witnesses and confront his accusers. In addition, it appears that the statements supplied to the Civil Service Commission by his superiors were not under oath and may have been based on hearsay information. It is the considered opinion of the Court that the procedure followed by the Civil Service Commission in this proceeding, including the use of statements not made under oath, does not violate the federal constitution. See Smith v. Dulles, 99 U.S.App.D.C. 6, 236 F.2d 739 (1956); Murphy v. Wilson, 99 U.S.App.D.C. 4, 236 F.2d 737 (1956); Ellmore v. Brucker, 99 U.S.App.D.C. 1, 236 F.2d 734 (1956).
Some attempt is made by the plaintiff to contend that the provisions of applicable federal statutes or regulations have not been met.
More specifically, plaintiff contends that the adjudication of total disability was based entirely on a Report of Examination of the plaintiff, in contravention of Chapter R-5-40 of the Federal Personnel Manual implementing the Civil Service Retirement Act of 1956. The September 16, 1963, letter to plaintiff indicates that other factors were considered and, therefore, the Court concludes that the adjudication was not based entirely on the Report of Examination of plaintiff.
Also, plaintiff contends that he has not been supplied with the facts on which the CSC based its decision as required by the applicable regulations. The Court finds that the medical facts on which the decision was based were supplied to a doctor of the plaintiff's choice and that, while some conditions on divulging information to plaintiff and his counsel were imposed, these were subsequently removed and said doctor was permitted to discuss with plaintiff and his counsel such part of the medical report as his professional judgment dictates.
Accordingly, the Court concludes that the separation from service of plaintiff by the Civil Service Commission meets all federal constitutional, statutory and regulatory standards.
In addition to the following Findings of Fact and Conclusions of Law, the Court adopts statements of fact and conclusions of law expressed in this Opinion as further Findings of Fact and Conclusions of Law required by the Federal Rules of Civil Procedure, Rule 52.
1. Plaintiff, a preference eligible, entered the civilian service of the United States on August 8, 1955, under an appointment excepted from the civil service rules and regulations in the position of Director, Pittsburgh Insuring Office of the Federal Housing Administration. In 1959, he was converted to competitive status -- an action which granted him certain rights under the civil service laws and regulations.
3. On April 5, 1963, the Federal Housing Administration filed with the Civil Service Commission an application for plaintiff's retirement on account of disability, together with a copy of the report of medical examination of February 13, 1963, and other related documents. On April 17, 1963, a notice was issued to the plaintiff by Wilmer R. Haack, Chief of the Adjudicating Section, Claims Division, Bureau of Retirement and Insurance, informing the plaintiff that the application for his retirement on account of disability had been approved upon a finding that he was totally disabled for useful and efficient service in the position of Director, Pittsburgh Insuring Office, Federal Housing Administration, and that he should be retired on an annuity. The same notice advised plaintiff that he had a right to appeal from that decision.
4. At the request of the plaintiff, on April 26, 1963, a report of the medical examination conducted by the Public Health Service was transmitted to Irving S. Soldman, M.D., designated by ...