The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, District Judge.
In differing forms, this matter has been extensively litigated before trial and appellate administrative agencies as well as nisi prius and appellate courts of New York State. Whether this Court should permit a collateral attack on these determinations raises vexing questions of federal jurisdiction, res judicata and state administrative law.
Plaintiff, a former employee of the defendant New York City Transit Authority (TA), seeks a declaratory judgment that his removal from employment was unlawful. He also seeks injunctive relief against enforcement of the determinations of the TA and the defendant Civil Service Commission of the City of New York (Commission) under which he was removed. Defendants have moved for dismissal and summary judgment under Rules 12 and 56 of the Federal Rules of Civil Procedure, and plaintiff has cross-moved for summary judgment. For the reasons stated below, defendants' motion for summary judgment must be granted and plaintiff's cross-motion denied.
The facts of this case are undisputed. Plaintiff was removed from his position as a Road Car Inspector with the TA after a departmental hearing and report by a referee recommending discharge because of an alleged incident involving an assault with a gun. The hearing was held on August 9, 1962, and the report was issued three days later. At the time of the hearing and report, the General Counsel of the TA, whose office was responsible for prosecuting dismissal actions, was Daniel T. Scannell. After the report was issued, the same Daniel T. Scannell was appointed a Member of the TA. Mr. Scannell and the Chairman of the TA, comprising the majority necessary for such action, then approved the referee's report and ordered the plaintiff's dismissal on September 4, 1962.
The plaintiff appealed to the Commission. After a hearing, at which the plaintiff was represented by counsel, the Commission affirmed the TA determination in June of 1963. More than one year later, plaintiff brought a proceeding to review the decision of the Commission in the New York State Supreme Court under Article 78 of the New York Civil Practice Law and Rules. It was dismissed on January 13, 1965 on the ground that the Civil Service Commission's determination was not arbitrary "in a legal sense" since, "with knowledge of all the facts upon which petitioner now bases his position, neither he nor his attorneys raised," the question of Mr. Scannell's conflict of interest.
On appeal, the Supreme Court, Appellate Division, unanimously affirmed the dismissal. That court found that petitioner knew or should have known of the conflict at the time of his appeal to the Commission. It relied on the additional grounds of expiration of the statute of limitations and laches. The court stated:
We additionally find that petitioner knew, or should have known, at the time of his appeal to the Civil Service Commission, that Commissioner [sic] Scannell had taken part as a Member of the Authority in the adoption of the recommendations of the hearing referee. Therefore, in addition to the reasons stated by Special Term, we affirm on the grounds of expiration of the four month Statute of Limitations * * * and laches. Taylor v. New York City Transit Authority, 25 A.D. 2d 682, 269 N.Y.S. 2d 75, 76 (2d Dep't 1966).
This decision was affirmed unanimously without opinion. Taylor v. New York City Transit Authority, 19 N.Y. 2d 724, 279 N.Y.S. 2d 181, 225 N.E. 2d 886 (1967). Review was not sought in the United States Supreme Court. Instead, the present action was instituted in this Court.
II. DENIAL OF DUE PROCESS AS A BASIS FOR JURISDICTION
Relief is claimed under the Civil Rights Act, 42 U.S.C. § 1983, and its companion jurisdictional provision, 28 U.S.C. § 1343, on the theory that plaintiff's employment was terminated without due process by state officials acting under color of state law.
In an administrative disciplinary system providing for separation of the roles of prosecutor and impartial trier, when the official responsible for prosecution changes positions and casts the deciding vote upholding the prosecution, a substantial due process issue is raised. Confusion between the roles of judge and advocate has been rightly distrusted in English law since the Middle Ages. H. Drinker, Legal Ethics 15 (1953). With possible exceptions not here relevant, the right to an impartial judge - one who has no interest in the outcome of a case before him and whose contact with the litigation does not suggest any reason for partiality - is required to meet minimum standards of due process. Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927); In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955); cf. Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 11 (1954) (based upon supervisory power over federal judiciary); Falcone v. Dantinne, 420 F.2d 1157 (3d Cir. 1969) (union disciplinary hearing required to be "full and fair" under 29 U.S.C. § 411(a)(5)(C)). Where a man's livelihood is involved these standards apply to quasi-judicial administrative adjudications "which directly affect the legal rights of individuals." Hannah v. Larche, 363 U.S. 420, 442, 80 S. Ct. 1502, 1514, 4 L. Ed. 2d 1307 (1960). See Amos Treat & Co. v. S.E.C., 113 U.S. App. D.C. 100, 306 F.2d 260 (1962); Trans World Airlines, Inc. v. C.A.B., 102 U.S. App. D.C. 391, 254 F.2d 90 (1958). Cf. Birnbaum v. Trussell, 371 F.2d 672, 677-679 (2d Cir. 1966).
While a substantial issue of due process is posed in the pleadings, the jurisdiction of this Court to consider that issue is unclear. Reviewing the authorities, the Court of Appeals for the Second Circuit in Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), found no authority in its decisions to support the proposition that the denial of due process, without more, in the dismissal of a governmental employee constitutes the deprivation of a "civil right" within the meaning of 28 U.S.C. § 1343. In its opinion in Eisen this Circuit apparently adopted the statement of Mr. Chief Justice Stone, concurring in Hague v. C.I.O., 307 U.S. 496, 531, 59 S. Ct. 954, 83 L. Ed. 1423 (1939), that jurisdiction exists only if "the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights." But see, Note, The Proper Scope of the Civil Rights Act, 66 Harv. L. ...