Waterman, Moore and Kaufman, Circuit Judges.
This is an appeal from an order and judgment granting defendants-appellees' motion for summary judgment and denying plaintiff-appellant's cross-motion for the same relief, under Rules 12 and 56 of the Federal Rules of Civil Procedure. The District Court memorandum and order is reported in 309 F. Supp. 785 (E.D.N.Y.1970).
Appellant Taylor commenced this action under the Civil Rights and Declaratory Judgment Acts, 42 U.S.C. § 1983, 28 U.S.C. §§ 1343, 2201, seeking a declaratory judgment to test the constitutionality of his dismissal by the New York City Transit Authority (Authority) and an injunction to nullify his dismissal and to require his reinstatement with back pay. We assume, without discussion, that there is jurisdiction. See Eisen v. Eastman, 421 F.2d 560, 563-565 (2d Cir. 1969); cf. Gold v. Lomenzo, 425 F.2d 959, 961 (2d Cir. 1970).
The principal question presented for decision to this court is whether a collateral attack on federal constitutional grounds should be permitted against exhaustively litigated and ostensibly final state administrative and judicial determinations of the merits of Taylor's case. For the reasons stated below, we affirm the decision of the district court.
The facts in this case are not in dispute. On July 15, 1962, appellant, an Authority Road Car Inspector then off duty, was involved in an altercation in which he was implicated in an assault with a gun upon a stranger. He was arrested, but criminal charges were subsequently dropped. When the facts of his off duty behavior came to the attention of the Authority, a formal charge and specification was prepared by the office of the Authority's General Counsel which was responsible for the prosecution of dismissal actions. The charge was brought pursuant to the agency's rules and regulations and was served together with a notice of hearing on July 30, 1962 over the name of the then General Counsel, Daniel T. Scannell (Scannell), who had been on vacation in Europe since July 10th, not to return until August 13th.
On August 9th, a day after all criminal charges were dropped against appellant, a departmental hearing on the misconduct charge was held before a hearing referee, who sustained the charge and recommended discharge of appellant from the Authority's employ. The report containing the referee's findings and recommendation, along with a full transcript, was submitted to the Authority's Members on August 12th. On August 13th, Scannell returned from Europe, and on August 14th was appointed a Member of the Authority, succeeding a Member who resigned the same day to accept a judicial appointment. In the absence of the Authority's third Member, Scannell, on September 4th, cast the second, last and deciding vote against appellant, who was then formally notified of his dismissal. It is this "dual role" played by Scannell which appellant claims vitiates his dismissal.
Under § 76 of the New York Civil Service Law, McKinney's Consol.Laws, c. 7,*fn1 appellant was required, within 20 days of the Authority's decision to elect to appeal his discharge either to the New York City Civil Service Commission (Commission) or to a New York Supreme Court under Article 78 of the New York Civil Practice Law and Rules. Appellant elected to appeal to the Commission, which held a judicial-like adversary proceeding in which the parties were represented by counsel. The Commission denied appellant's appeal on or about June 7th, 1963. At no time was the constitutional issue of Scannell's disqualification raised in these proceedings.
On September 18, 1964, 15 months after the Commission's denial of his appeal, appellant commenced an Article 78 proceeding, which combines elements of common law mandamus and certiorari, in the New York Supreme Court, Kings County, Special Term, alleging the same grounds and seeking the same relief as here. The New York court dismissed the proceeding on January 13, 1965, on the ground that the Commission action was not "arbitrary" and that appellant's election under § 76 "with knowledge of all the facts" to appeal to the Commission precluded his maintaining the court action. The Supreme Court, Appellate Division, unanimously affirmed on the same ground of election of remedies and additionally grounded its affirmance on the lapsing of the applicable four-month statute of limitations for Article 78 actions. Taylor v. New York City Transit Authority, 25 A.D.2d 682, 269 N.Y.S.2d 75, 76 (2d Dep't 1966). The Appellate Division, however, was not quite as firm on the issue of plaintiff's "knowledge" regarding Scannell's participation in the Authority's dismissal proceedings:
"We additionally find that petitioner knew, or should have known, at the time of his appeal to the Civil Service Commission, that Commissioner Scannell had taken part * * *" Id.
The judgment was unanimously affirmed without opinion by the New York Court of Appeals. 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 the District Court below.
Section 76(3) of the New York Civil Service Law provides that "the decision of such civil service commission shall be final and conclusive, and not subject to further review in any court." The absolute language of this statutory subsection notwithstanding, however, New York courts have asserted jurisdiction over claims where state agency determinations under § 76 have been "purely arbitrary." See, e.g., Trotman v. Hoberman, 56 Misc.2d 915, 290 N.Y.S.2d 680 (Sup.Ct., Spec.Term, N.Y.Co.1968); Santella v. Hoberman, 29 A.D.2d 655, 286 N.Y.S.2d 647 (2d Dep't 1968). The rationale underlying the assertion of judicial supervision over the proceedings of state agencies in such cases is that the New York legislature did not intend the words of the statute to be read in the absolute sense. Cf. Board of Educ. of City of New York v. Allen, 6 N.Y.2d 127, 136, 188 N.Y.S.2d 515, 520, 160 N.E.2d ...